12-2779

Perez-Hernandez v. Holder

BIA

Montante, IJ

A098 927 893

A088 935 072

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

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 3rd day of October, two thousand thirteen.

PRESENT:

JON O. NEWMAN,

REENA RAGGI,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

_____________________________________

OSCAR UBALDO PEREZ-HERNANDEZ, FELIZA

TINOCO GRANADO,

Petitioners, 

 v. 12-2779

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Anne E. Doebler, Buffalo, New York.

FOR RESPONDENT: Stuart F. Delery, Principal Deputy

Assistant Attorney General; Paul

Fiorino, Senior Litigation Counsel;
Zoe J. Heller, Trial Attorney,

Office of Immigration Litigation,

United States Department of Justice,

Washington, D.C.

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 DISMISSED in part and DENIED in part.

Oscar Ubaldo Perez-Hernandez, a native and citizen of

Guatemala, and his wife Feliza Tinoco Granado, a native and

citizen of Nicaragua, seek review of a June 15, 2012,

decision of the BIA affirming the September 10, 2010,

decision of Immigration Judge (“IJ”) Philip J. Montante,

which pretermitted Perez-Hernandez’s application for asylum

as untimely and denied his applications for withholding of

removal and relief under the Convention Against Torture

(“CAT”).1 In re Oscar Ubaldo Perez-Hernandez, Nos. A098 927

893 & A088 935 072 (B.I.A. June 15, 2012), aff’g Nos. A098

927 893 & A088 935 072 (Immig. Ct. Buffalo Sept. 10, 2010). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

1 Perez-Hernandez included Tinoco Granado as a

derivative asylum applicant.

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We consider both the IJ’s and the BIA’s opinions “for

the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233,

237 (2d Cir. 2008). The applicable standards of review are

well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

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

Under 8 U.S.C. § 1158(a)(3), no court shall have

jurisdiction to review the agency’s finding that an asylum

application was untimely under § 1158(a)(2)(B) unless a

petition raises a constitutional claim or question of law. 

See id. § 1252(a)(2)(D). Although Perez-Hernandez’s

challenge to the agency’s pretermission of asylum raises a

question of law – whether incidents of alleged harm

occurring after an application is filed may constitute

“changed circumstances” to excuse the application’s

untimeliness – we decline to consider this argument because

he failed to raise it before the agency. See Lin Zhong v.

U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). 

Accordingly, as Perez-Hernandez has failed to raise a

justiciable question of law or constitutional claim, we

dismiss the petition in part as to asylum. 

For applications such as Perez-Hernandez’s, governed by

the amendments to the Immigration and Nationality Act

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imposed by the REAL ID Act of 2005, the agency “may rely on

any inconsistency or omission in making an adverse

credibility determination as long as the ‘totality of the

circumstances’ establishes the applicant is not credible.” 

Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)

(emphasis in original) (citing 8 U.S.C.

§ 1158(b)(1)(B)(iii)); see also 8 U.S.C. § 1231(b)(3)(C)

(applying the § 1158(b)(1)(B)(iii) standard to withholding

of removal). This Court defers to agency credibility

determinations “unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.” Xiu Xia

Lin, 534 F.3d at 167. 

Here, substantial evidence supports the agency’s

adverse credibility determination. In his brief, PerezHernandez fails to meaningfully contest the agency’s broad

finding that his testimony was incredible because his

application omitted facts material to his claim – the

continued threats by gang members after he fled Guatemala

City. Rather, Perez-Hernandez contends that he provided

reasonable explanations for specific inconsistency and

omission findings – for example, although his testimony

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contradicted Tinoco Granado’s whether gang members entered

his home, they may have been discussing different events,

and although his application failed to mention his testimony

that gang members “spray[ed his] parents’ house with

gunfire,” his application mentioned generally that he was

“threatened.” However, these explanations are insufficient

to compel the conclusion that his testimony was credible, as

the omissions and inconsistencies were materially related to

his claim. Cf. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

Cir. 2005).

To the extent Perez-Hernandez contends that the

agency’s adverse credibility determination was not ripe for

review, that contention lacks merit because the agency’s

determination was a dispositive basis for denying his

applications for relief. See 8 U.S.C. § 1158(b)(1)(B)(iii);

Xiu Xia Lin, 534 F.3d at 167. As the only evidence of a

threat to Perez-Hernandez’s life or freedom depended upon

his credibility, the agency did not err in denying

withholding of removal and CAT relief. See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). 

Given our disposition in this case, we decline to reach 

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Perez-Hernandez’s additional arguments. See INS v.

Bagamasbad, 429 U.S. 24, 25 (1976). 

For the foregoing reasons, the petition for review is

DISMISSED, in part, and DENIED, in part. As we have

completed our review, any stay of removal that the Court

previously granted in this petition 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

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