20-1844

Martinez Fajardo v. Garland

BIA

Christensen, IJ

A209 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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 16th 4 day of November, two thousand twenty5 two.

6

7 PRESENT:

8 DENNIS JACOBS,

9 PIERRE N. LEVAL,

10 RAYMOND J. LOHIER, JR.,

11 Circuit Judges.

12 _____________________________________

13

14 ADA CLARIBEL MARTINEZ FAJARDO, 

15 OSCAR OSMIN POLANCO-AGUILAR,

16 Petitioners,

17

18 v. 20-1844

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25

26 FOR PETITIONERS: Gisela Chavez-Garcia, Esq., New 

27 York, NY.

28
2

1 FOR RESPONDENT: Brian Boynton, Acting Assistant

2 Attorney General; Claire L. 

3 Workman, Senior Litigation 

4 Counsel; John B. Holt, Trial 

5 Attorney, Office of Immigration 

6 Litigation, United States 

7 Department of Justice, Washington, 

8 DC.

9 UPON DUE CONSIDERATION of this petition for review of a 

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

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

12 is DENIED.

13 Petitioners Ada Claribel Martinez Fajardo and Oscar Osmin

14 Polanco-Aguilar, natives and citizens of El Salvador, seek 

15 review of a May 19, 2020 decision of the BIA affirming a July 

16 11, 2018 decision of an Immigration Judge (“IJ”) denying their

17 applications for asylum, withholding of removal, and relief 

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

19 Claribel Martinez Fajardo, Oscar Osmin Polanco-Aguilar, No. 

20 A 209 218 784/785 (B.I.A. May 19, 2020), aff’g No. A 209 218 

21 784/785 (Immig. Ct. N.Y. City July 11, 2018). We assume the 

22 parties’ familiarity with the underlying facts and procedural 

23 history.

24 We have reviewed both the IJ’s and the BIA’s opinions 

25 “for the sake of completeness.” Wangchuck v. Dep’t of 

26 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 
3

1 adverse credibility determinations for substantial evidence, 

2 see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), 

3 and treat the agency’s findings of fact as “conclusive unless 

4 any reasonable adjudicator would be compelled to conclude to 

5 the contrary,” 8 U.S.C. § 1252(b)(4)(B).

6 “Considering the totality of the circumstances, and all 

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

8 determination on . . . the consistency between the 

9 applicant’s or witness’s written and oral statements 

10 (whenever made and whether or not under oath, and considering 

11 the circumstances under which the statements were 

12 made), . . . the consistency of such statements with other 

13 evidence of record . . . , and any inaccuracies or falsehoods 

14 in such statements, without regard to whether an 

15 inconsistency, inaccuracy, or falsehood goes to the heart of 

16 the applicant’s claim, or any other relevant factor.” 8 

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

18 credibility determination unless, from the totality of the 

19 circumstances, it is plain that no reasonable fact-finder 

20 could make such an adverse credibility ruling.” Xiu Xia Lin 

21 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

22 Here, substantial evidence supports the agency’s adverse 
4

1 credibility determination. First, the agency reasonably 

2 relied on inconsistencies between Petitioners’ testimony and 

3 Martinez Fajardo’s credible fear interview. See

4 § 1158(b)(1)(B)(iii). Petitioners alleged that Martinez 

5 Fajardo witnessed a gang murder and that, as a result, the 

6 gang members threatened them, sexually assaulted Martinez 

7 Fajardo, and beat Polanco-Aguilar. But Martinez Fajardo made 

8 inconsistent statements as to whether she saw or only heard 

9 the shooting, whether the gang members shot or both shot and 

10 stabbed the victims, and where she was when she witnessed the 

11 murders. The agency did not err in relying on inconsistent 

12 statements from her credible fear interview because the 

13 interview record bears the necessary “hallmarks of 

14 reliability”: the interview was conducted through a Spanish 

15 interpreter, Martinez Fajardo did not indicate that she had 

16 difficulty understanding the interpreter, she told the 

17 interviewing officer why she was afraid to go to El Salvador, 

18 and the interview was memorialized in a typewritten document

19 that listed the questions and responses. See Ming Zhang v. 

20 Holder, 585 F.3d 715, 725 (2d Cir. 2009). The agency was not 

21 required to credit her explanation that she forgot to mention 

22 some details at the hearing. See Majidi v. Gonzales, 430 
5

1 F.3d 77, 80 (2d Cir. 2005).

2 Second, the IJ reasonably relied on a discrepancy between 

3 Petitioners’ testimony and applications. Although they 

4 testified that the gang members assaulted Polanco-Aguilar at 

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

6 or written statements. The agency was not compelled to 

7 credit Petitioners’ explanation that Polanco-Aguilar was 

8 nervous and reluctant to think about the beating because he 

9 prepared the written statement well after his arrival and the 

10 beating was the only harm he suffered personally. Id.; see 

11 also Hong Fei Gao, 891 F.3d at 78–79 (“[I]n assessing the 

12 probative value of the omission of certain facts, an IJ should 

13 consider whether those facts are ones that a credible 

14 petitioner would reasonably have been expected to disclose 

15 under the relevant circumstances.”).

16 Third, the agency reasonably relied on multiple minor 

17 discrepancies about where Martinez Fajardo was when the 

18 murders took place, what Petitioners did with their car when 

19 they left El Salvador, and who found a threatening note. See 

20 Xiu Xia Lin, 534 F.3d at 167 (“[E]ven where an IJ relies on 

21 discrepancies or lacunae that, if taken separately, concern 

22 matters collateral or ancillary to the claim, the cumulative 
6

1 effect may nevertheless be deemed consequential by the fact2 finder.”) (quotation marks omitted).

3 Given the multiple inconsistencies and the omissions of 

4 Polanco-Aguilar’s only alleged harm, substantial evidence 

5 supports the agency’s adverse credibility determination. See 

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

7 Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) 

8 (“[E]ven a single inconsistency might preclude an alien from 

9 showing that an IJ was compelled to find him credible. 

10 Multiple inconsistencies would so preclude even more 

11 forcefully.”). The adverse credibility determination is 

12 dispositive of asylum, withholding of removal, and CAT relief 

13 because all three claims were based on the same factual 

14 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 

15 Cir. 2006).

16 For the foregoing reasons, the petition for review is 

17 DENIED. All pending motions and applications are DENIED and 

18 stays VACATED.

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk