         10-684-ag
         Carranza v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A094 095 153
                                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 A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                       Circuit Judges.
11       _______________________________________
12
13       CORNELIO CARRANZA,
14
15                            Petitioner,
16
17                            v.                                10-684-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:                     Andrew P. Johnson, New York, NY.
26
27       FOR RESPONDENT:                     Tony West, Assistant Attorney
28                                           General; Shelley R. Goad, Assistant
29                                           Director; Jennifer A. Singer, Trial
30                                           Attorney, Office of Immigration
31                                           Litigation, Civil Division, U.S.
32                                           Department of Justice, Washington,
33                                           D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DISMISSED in part and DENIED in part.

 5       Petitioner Cornelio Carranza, a native and citizen of

 6   El Salvador, seeks review of a January 29, 2010, decision of

 7   the BIA affirming the May 10, 2007, decision of Immigration

 8   Judge (“IJ”) Sandy Hom, which (1) pretermitted his

 9   application for asylum, (2) denied his applications for

10   withholding of removal and relief under the Convention

11   Against Torture (“CAT”), and (3) denied his request for

12   special rule cancellation of removal pursuant to the

13   Nicaraguan Adjustment and Central American Relief Act of

14   1997 (“NACARA”).   In re Cornelio Carranza, No. A094 095 153

15   (B.I.A. Jan. 29, 2010), aff’g No. A094 095 153 (Immig. Ct.

16   N.Y. City May 10, 2007).   We assume the parties’ familiarity

17   with the underlying facts and procedural history of the

18   case.

19       We have reviewed the decision of the IJ as supplemented

20   by the BIA.   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

21   Cir. 2005).   Under the circumstances of this case, “the

22   administrative findings of fact are conclusive unless any

23   reasonable adjudicator would be compelled to conclude to the

                                   2
 1   contrary.”    8 U.S.C. § 1252(b)(4)(B).   “The substantial

 2   evidence standard of review applies, and we uphold the IJ’s

 3   factual findings if they are supported by reasonable,

 4   substantial[,] and probative evidence in the record.”

 5   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009)

 6   (internal quotation marks and citations omitted).

 7   I.   Adverse Credibility Determination

 8        In finding Carranza not credible, the IJ reasonably

 9   relied on inconsistencies in his testimony regarding his

10   killing of a farmer while serving in the Salvadoran

11   military.     See Secaida-Rosales v. INS, 331 F.3d 297, 308-09

12   (2d Cir. 2003), superseded by statute on other grounds as

13   recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

14   Cir. 2008).    As the IJ found, in contrast to his testimony

15   that he was ordered only to follow the farmer but killed the

16   farmer in self-defense when the farmer attacked him,

17   Carranza’s later testimony and his asylum application

18   indicated that he carried out an order to kill the farmer.

19   Carranza does not challenge this finding, and it stands as a

20   valid basis for the IJ’s adverse credibility determination.

21   See Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir.

22   2008); see also 8 U.S.C. § 1158(b)(1)(B)(iii).



                                     3
 1       The IJ also reasonably relied on omissions in

 2   Carranza’s asylum application in denying his claim.

 3   Although Carranza explained that he “didn’t go into detail”

 4   in his application, the IJ was entitled to disregard this

 5   explanation, as it would not necessarily be compelling to a

 6   reasonable factfinder.    See Majidi v. Gonzales, 430 F.3d 77,

 7   80-81 (2d Cir. 2005).    Despite Carranza’s claim that the

 8   omission was merely “collateral” to his underlying claim for

 9   relief, the IJ’s reliance on these omissions was reasonable

10   because, as the IJ noted, the facts that the man Carranza

11   killed was allegedly armed and attacked him first were

12   especially salient omissions, in light of Carranza’s

13   contention that he killed the man in self-defense.     See

14   Secaida-Rosales, 331 F.3d at 308-09.

15       Given the IJ’s findings, substantial evidence supports

16   his adverse credibility determination, and the agency

17   properly denied Carranza’s applications for withholding of

18   removal and CAT relief because the only evidence that

19   Carranza would be persecuted or tortured depended on his

20   credibility.   See id.; Paul v. Gonzales, 444 F.3d 148, 156

21   (2d Cir. 2006).   Accordingly, we need not reach Carranza’s

22   arguments that he established past persecution or a

23   likelihood of future persecution.    See Liang Chen v. U.S.

                                    4
 1   Att’y Gen., 454 F.3d 103, 106-107 (2d Cir. 2006).

 2   II. NACARA Relief

 3       Under Section 1252(a)(2)(B)(i) of Title 8 of the United

 4   States Code, we lack jurisdiction to review the agency’s

 5   denial of relief under 8 U.S.C. § 1229b, the cancellation-

 6   of-removal statute.   See Barco-Sandoval v. Gonzales, 516

 7   F.3d 35, 38-39 (2d Cir. 2008) (upholding De La Vega v.

 8   Gonzales, 436 F.3d 141 (2d Cir. 2006)).    Special rule

 9   cancellation of removal under NACARA is subject to the

10   jurisdiction-stripping provision of 8 U.S.C.

11   § 1252(a)(2)(B)(i) as well.   See NACARA § 203(a)(1), Pub. L.

12   105-100, 111 Stat. at 2197-98.    Nonetheless, we retain

13   jurisdiction to review “constitutional claims or questions

14   of law raised upon a petition for review.”     8 U.S.C.

15   § 1252(a)(2)(D); see also Xiao Ji Chen v. U.S. Dep’t of

16   Justice, 471 F.3d 315, 325 (2d Cir. 2006).

17       Here, the agency found Carranza ineligible for NACARA

18   relief because he: (1) did not establish the required seven

19   years of continuous physical presence in the United States

20   given his testimony which was both internally inconsistent

21   and inconsistent with testimony offered by his son;

22   (2) failed to establish the requisite “extreme hardship” to



                                   5
 1   either himself or a qualifying relative; and (3) failed to

 2   meet the threshold eligibility requirements under 8 C.F.R.

 3   § 1240.61.

 4       Carranza challenges only the IJ’s factual findings

 5   regarding the dates of his departure and reentry into the

 6   United States, and the IJ’s failure to afford sufficient

 7   weight to evidence establishing the requisite continuous

 8   physical presence in the United States. Because these

 9   arguments do not present a constitutional claim or question

10   of law, we lack jurisdiction to review them.   See Xiao Ji

11   Chen, 471 F.3d at 326-29.   Accordingly, we dismiss

12   Carranza’s petition with regard to his challenge to the

13   agency’s denial of NACARA relief.

14       For the foregoing reasons, the petition for review is

15   DENIED in part and DISMISSED in part.   As we have completed

16   our review, any stay of removal that the Court previously

17   granted in this petition is VACATED, and any pending motion

18   for a stay of removal in this petition is DISMISSED as moot.

19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
22




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