    17-2991
    Reina Murcia v. Whitaker
                                                                                    BIA
                                                                             Verrillo, IJ
                                                                           A206 779 037
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 14th day of January, two thousand nineteen.

    PRESENT:
             DENNIS JACOBS,
             DEBRA ANN LIVINGSTON,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    ROXANA GUADALUPE REINA MURCIA,
             Petitioner,

                      v.                                         17-2991
                                                                 NAC
    MATTHEW G. WHITAKER, ACTING
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                       Gregory Osakwe, Hartford, CT.

    FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
                                          Attorney General; Julie M.
                                          Iversen, Senior Litigation
                                          Counsel; Robert Michael Stalzer,
                                          Trial Attorney, Office of
                                          Immigration Litigation, United
                                          States Department of Justice,
                                          Washington, DC.
     UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

     Petitioner Roxana Guadalupe Reina Murcia, a native and

citizen of El Salvador, seeks review of a September 5, 2017,

decision of the BIA affirming a January 3, 2017, decision of

an   Immigration     Judge       (“IJ”)   denying   Reina    Murcia’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).          In re Roxana

Guadalupe Reina Murcia, No. A 206 779 037 (B.I.A. Sept. 5,

2017), aff’g No. A 206 779 037 (Immig. Ct. Hartford Jan. 3,

2017).       We   assume   the    parties’   familiarity    with   the

underlying facts and procedural history in this case.

     In lieu of filing a brief, the Government moves for

summary denial of Reina Murcia's petition for review.          Rather

than determine if the petition is frivolous as is required

for summary denial, see Pillay v. INS, 45 F.3d 14, 17 (2d

Cir. 1995), we construe the Government’s motion as its brief

and deny the petition on the merits.

     Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA.         See Yan Chen


                                    2
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).                     We review

the agency’s adverse credibility determination under the

substantial evidence standard.              See 8 U.S.C.

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

66 (2d Cir. 2008).         For applications such as Reina

Murcia’s, governed by the REAL ID Act of 2005, the adverse

credibility standard is as follows:

     Considering the totality of the circumstances, and
     all relevant factors, a trier of fact may base a
     credibility determination on . . . the consistency
     between the applicant’s or witness’s written and
     oral statements . . . , the internal consistency of
     each such statement, the consistency of such
     statements with other evidence of record . . . , and
     any inaccuracies or falsehoods in such statements,
     without   regard  to   whether   an  inconsistency,
     inaccuracy, or falsehood goes to the heart of the
     applicant’s claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii).              “We defer . . . to an IJ’s

credibility determination unless . . . it is plain that no

reasonable fact-finder could make such an adverse credibility

ruling.”       Xiu   Xia    Lin,   534     F.3d     at    167.      The   agency

reasonably relied on inconsistencies among Reina Murcia’s

testimony, documentary evidence, and credible fear interview

in   finding   her   not    credible,       which      considered    together,

provide    substantial      evidence       for   the     adverse   credibility

determination.       See Hong Fei Gao v. Sessions, 891 F.3d 67,


                                       3
77–78 (2d Cir. 2018) (“The REAL ID Act does not erase our

obligation     to   assess      whether    the    agency    has   provided

specific, cogent reasons for the adverse credibility finding

and whether those reasons bear a legitimate nexus to the

finding.” (internal quotation marks omitted)).

    First, the agency reasonably relied on an inconsistency

between Reina Murcia’s testimony at the merits hearing and

the record of her credible fear interview regarding whether

her abuser lived with her parents. 1             Reina Murcia stated at

her interview that her boyfriend moved in with her and her

parents, but she later testified that she lived with him in

a town that was five hours by bus from her parents’ home.

    Second,     the    agency    also     reasonably   relied     on   Reina

Murcia’s inconsistent statements regarding her boyfriend’s

relationship    with    another    woman.        At   her   credible    fear




1 While Reina Murcia objected to the reliability of the credible
fear interview during her initial hearing before the IJ, she did
not renew this objection before the BIA, or before this Court.
For that reason, any issue with the use of the credible fear
interview is deemed unexhausted and waiver. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (requiring
petitioners to exhaust issues before the BIA); Norton v. Sam’s
Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently
argued in the briefs are considered waived and normally will not
be addressed on appeal.”). Nevertheless, we find the agency did
not err by relying on the record of the credible fear interview
because it “displays the hallmarks of reliability.” Ming Zhang
v. Holder, 585 F.3d 715, 725 (2d Cir. 2009).
                                     4
interview, Reina Murcia stated that her boyfriend hit her

because she caught him with another woman and discovered that

the woman was pregnant with her boyfriend’s child.                However,

she testified that she did not find them together and did not

know of a pregnancy.

      Third, the agency reasonably relied on an inconsistency

between Reina Murcia’s testimony and her doctor’s letter

regarding when the abuse began.            A 2016 letter from her doctor

stated   that    Reina    Murcia     received      medical   treatment    for

injuries      beginning   in   December      2013.     In    contrast,    she

testified that her boyfriend first hit her three months after

they started dating, i.e., in February or March 2014.

      Finally, the agency reasonably relied on an inconsistency

between Reina Murcia’s testimony and her father’s letter

regarding whether her parents witnessed the abuse.                        Her

father’s letter states, “I express that sometimes I witnessed

the   bad     mistreatment     she    received.”       But   Reina    Murcia

testified that her father never saw her boyfriend hit or

mistreat her.

      Reina     Murcia     was       asked    to     explain    all      four

inconsistencies.         However, the agency was not required to

accept her explanations, as none of them actually resolved


                                       5
the inconsistencies, let alone compelled her view.                               See

Majidi     v.   Gonzales,       430    F.3d   77,    80    (2d    Cir.   2005) (“A

petitioner must do more than offer a plausible explanation

for his inconsistent statements to secure relief; he must

demonstrate that a reasonable fact-finder would be compelled

to   credit     his    testimony.”       (internal        quotation      marks   and

citations       omitted)).        Moreover,         as    the    BIA   noted,    her

documentary evidence did not rehabilitate her credibility

because it conflicted with her testimony.                       Cf. Biao Yang v.

Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

     Given       the       inconsistencies,         the     totality       of    the

circumstances         supports    the     agency’s        adverse      credibility

ruling.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

F.3d at 167.          Because Reina Murcia’s claims were all based

on   the    same      factual    predicate,        the    adverse      credibility

determination         is    dispositive       of    asylum,      withholding      of

removal, and CAT relief.              See Paul v. Gonzales, 444 F.3d 148,

156-57 (2d Cir. 2006).

     For the foregoing reasons, the motion for summary denial

is CONSTRUED as the Government’s brief and the petition for

review is DENIED.           As we have completed our review, any stay

of removal that the Court previously granted in this petition


                                         6
is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.    Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe,
                              Clerk of Court




                               7
