20

- 1844 Martinez Fajardo v. Garland BIA Christensen , IJ A 209 218 784/785 

### 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.** 
**At a stated term of the United States Court of Appeals** 1 **for the Sec ond Circuit,**  **held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **6 t**  **h da**  **y of N**  **o v**  **e m**  **b e**  **r , two thousand**  **twenty**
  4 ** two.** 5 6 **PRESENT:** 7 **DENNIS JACOBS ,**  8 **PIERRE N. LEVAL ,**  9 **RAYMOND J. LOHIER, JR. ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **ADA CLARIBEL MARTINEZ FAJARDO,** 14 **OSCAR OSMIN POLANCO**

**- AGUILAR**  **,** 15 **Petitioner s**  **,** 16 17
**v. 20** 

**- 1844**  18 **NAC** 19 **MERRICK B. GARLAND ,**  **UNITED** 20 **STATES ATTORNEY GENERAL,** 21 **Respondent**

**.** 22

**_____________________________________** 23 24 25 **FOR PETITIONER S**  **:** Gisela Chavez

- Garcia, Esq., New 26 York, NY. 27 282 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 1 Attorney General ; Claire L. 2 Workman, Senior Litigation 3 Counsel; John B. Holt , Trial 4 Attorney, Office of Immigration 5 Litigation, United States 6 Department of Justice, Washington, 7 D C. 8
UPON DUE CONSIDERATION of this petition for review of a 9
Board of Immigration Appeals (“BIA”) decision, it is hereby 10
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 11

is DENIED

. 12

Petitioner s Ada Claribel Martinez Fajardo and Oscar Osmin 13

Polanco

- Aguilar , native s and citizen s of El Salvador , seek 14

review of a May 19, 2020 decision of the BIA affirming a July 15
11, 2018 decision of an Immigration Judge (“IJ”) denying their 16
application s for asylum, withholding of removal, and relief 17
under the Convention Against Torture (“CAT”)

. In re Ada 18
Claribel Martinez Fajardo, Oscar Osmin Polanco

- Aguilar , No. 19

A 209 218 784/785 (B.I.A. May 19, 2020 ), aff’g No. A 209 218 20
784/785 (Immig. Ct. N.Y. City July 11, 2018 ). We assume the 21
parties’ familiarity with the underlying facts and procedural 22
history. 23

We have reviewed both the IJ’s and the BIA’s opinions 24
“for the sake of completeness.” Wangchuck v. Dep’t of 25

Homeland Sec

. , 448 F.3d 524, 528 (2d Cir. 2006). We review 263 adverse credibility determinations for substantial evidence, 1
see Hong Fei Gao v. Sessio ns , 891 F.3d 67, 76 (2d Cir. 2018), 2
and treat the agency’s findings of fact as “conclusive unless 3
any reasonable adjudicator would be compelled to conclude to 4
the contrary,” 8 U.S.C. § 1252(b)(4)(B). 5
“Considering the totality of the circumstances, and all 6

relevant fact ors , a trier of fact may base a credibility 7

determination on

. . . the consistency between the 8
applicant’s or witness’s written and oral statements 9
(whenever made and whether or not under oath, and considering 10

the circum stances under which the statements were 11

made),

. . . the consistency of such statements with other 12

evidence of record

. . . , and any inaccuracies o r falsehoods 13
in such statements, without regard to whether an 14
inconsistency, inaccuracy, or falsehood goes t o the heart of 15
the applicant’s claim , or any other relevant factor .” 8 16

U.S.C. § 1158(b)(1)(B)(iii). “We defer

. . . to an IJ’s 17
credibility determination unless, from the totality of the 18
circumstances, it is plain that no reasonable fact

- finder 19

could make such an adverse credibility ruling.” Xiu Xia Lin 20
v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008). 21

Here, s ubstantial evidence supports the agency’s adverse 224 credibility determination. First, t he agency reasonably 1

relied on inconsistencies between Petitioners’ testimony and 2
Martinez Fajardo’s credible fear interview

. See 3

§ 1158(b)(1)(B)(iii). Petitioners alleged that Martinez 4
Fajardo witnessed a gang murder and that, as a result, the 5
gang members threatened them, sexually assaulted Martinez 6
Fajardo, and beat Polanco

- Aguilar. But Martinez Fajardo made 7
inconsistent statements as to whether she saw or only h eard 8
the shooting, whether the gang members shot or both shot and 9
stabbed the victims, and where she was when she witnessed the 10
murders. The agency did not err in relying on inconsistent 11

statements from her credible fear interview be cause the 12

interview re cord be ars the necessary “hallmarks of 13
reliability” : the interview was conducted through a Spanish 14
interpreter, Martinez Fajardo did not indicate that she had 15
difficulty understanding the interpreter, she told the 16
interviewing officer why she was afraid to go to El Salvador , 17

and the interview w as memorialized in a typewritten document 18
that listed the questions and responses

. See Ming Zhang v. 19

Holder , 585 F.3d 715, 725 (2d Cir. 2009)

. The agency was not 20
required to credit her explanation that she forgot to mention 21
some details at the hearing. See Majidi v. Gonzales , 430 225 F.3d 77, 80 (2d Cir. 2005)

. 1
Second, the IJ reasonably relied on a discrepancy between 2

Petitioners’ testimony and appl ications

. Although they 3

testified that the gang members assaulted Polanco

- Aguilar at 4

work , they did not mention that assault in their applications 5

or written statements

. The agency was not compelled to 6
credit Petitioners’ explanation that Polanco

- Aguilar was 7

nervous and reluctan t to think about the beating because he 8
prepared the written statement well after his arrival and the 9
beating was the only harm he suffered persona lly

. Id. ; see 10

also Hong Fei Gao , 891 F.3d at 78

– 79 (“ [ I ] n assessing the 11
probative value of the omission of certain facts, an IJ should 12

consider whether those facts are ones that a credible 13
petitioner would reasonably have been expected to disclose 14
under the relevant circumstances.”). 15
Third, the agency reasonably relied on multiple minor 16
discrepancies about where Martinez Fajardo was when the 17
murders took place , what Petitioners did with their car when 18
they left El Salvador, and who found a threateni ng note. See 19

Xiu Xia Lin , 534 F.3d at 167 ( “[E]ven where an IJ relies on 20
discrepancies or lacunae that, if taken separately, concern 21
matters collateral or ancillary to the claim, the cumulative 226 effect may nevertheless be deemed consequential by the fact

1

f inder.” ) (quotation marks omitted). 2
Given the multiple inconsistencies and the omission s of 3

Polanco

- Aguilar ’s only alleged harm, substantial evidence 4
supports the agency’s adverse credibility determination. See 5

§ 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167 ; see also 6

Lika i Gao v. Barr , 968 F.3d 137, 145 n.8 (2d Cir. 2020) 7
(“[E]ven a single inconsistency might preclude an alien from 8
showing that an IJ was compelled to find him credible

. 9
Multiple inconsistencies would so preclude even more 10

forceful ly.”) . Th e adverse credibility determination is 11
dispositive of asylum, withholding of removal, and CAT relief 12

because all three claims were based on the same factual 13
predicate. S ee Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d 14
Cir. 2006). 15
For the foregoing reasons, the petition for review is 16

DENIED

. All pending motions and applications are DENIED and 17

stays VACATED. 18

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