14-1838 

Morales-Espania v. Lynch

BIA 

Montante, IJ 

A088 935 213

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 

7th day of June, two thousand sixteen. 

PRESENT: 

PETER W. HALL,

GERARD E. LYNCH, 

DENNY CHIN,

Circuit Judges. 

_____________________________________ 

MARLO IVON MORALES-ESPANIA, 

Petitioner, 

v. 14-1838 

 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

Respondent. 

_____________________________________ 

FOR PETITIONER: Jose E. Perez, Law Offices of Jose 

 Perez, P.C., Syracuse, New York. 

FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant 

Attorney General; Jesse M. Bless, 

Senior Litigation Counsel; Lauren E. 

Fascett, Trial Attorney, Office of 
2

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 

GRANTED in part and DISMISSED in part. 

 Petitioner Marlo Ivon Morales-Espania, a native and 

citizen of Guatemala, seeks review of a June 13, 2014, decision 

of the BIA affirming a December 6, 2012, decision of an 

Immigration Judge (“IJ”) denying Morales-Espania’s application 

for asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). In re Marlo Ivon 

Morales-Espania, No. A088 935 213 (B.I.A. June 13, 2014), aff’g

No. A088 935 213 (Immig. Ct. Buffalo Dec. 6, 2012). We assume 

the parties’ familiarity with the underlying facts and 

procedural history in this case. 

 Under the circumstances of this case, we have reviewed the 

IJ’s decision, including the portions not explicitly discussed 

by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d 

Cir. 2005). The applicable standards of review are well 
3

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

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

Asylum and CAT Relief 

Under 8 U.S.C. § 1252(d)(1), where a petitioner has failed 

to raise a category of relief in his brief to the BIA, we are 

without jurisdiction to consider any challenge to the denial 

of that relief. Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 

2006). Because Morales-Espania did not challenge the IJ’s 

denial of either asylum or CAT relief before the BIA, we lack 

jurisdiction to review the denial of those forms of relief. 

Withholding of Removal 

Adverse Credibility Determination 

For applications such as Morales-Espania’s, governed by 

the REAL ID Act of 2005, the agency may, considering the totality 

of the circumstances, base a credibility finding on an 

applicant’s “demeanor, candor, or responsiveness,” the 

plausibility of his account, and inconsistencies in his 

statements, so long as they reasonably support an inference that 

the applicant is not credible. 8 U.S.C. 

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see also Xiu Xia Lin v. 

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We defer “to an IJ’s 
4

credibility determination 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. The substantial evidence standard “requires a certain 

minimum level of analysis from the IJ and BIA.” Delgado v. 

Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (internal quotation 

omitted). In this case, the totality of the circumstances does 

not reasonably support an inference that Morales-Espania was 

not credible; accordingly, substantial evidence does not 

support the adverse credibility determination. 

Morales-Espania claimed that he had been persecuted, and 

that he feared future persecution, by gang members on account 

of his membership in a civic association of businessmen in his 

town. Morales-Espania testified that the group, the 

Association of Cattlemen and Farmers of Chanmagua (“ASAGACH” 

in its Spanish abbreviation), worked with students to prevent 

them from using drugs and getting involved with gangs and that 

Guatemalan gangs targeted group members because the group 

interfered with gang recruitment. The IJ found that 

Morales-Espania was not credible because his “statements 

regarding the threats made against his life were vague and 
5

conclusory,” he “had difficulty remembering key details in his 

testimony, such as the years in which his father and uncle were 

killed,” and he “admitted that he previously lied to immigration 

officials to obtain an advantageous outcome.” A.R. 68. The 

IJ, however, failed to provide any examples of 

Morales-Espania’s vague and conclusory testimony. See 

Delgado, 508 F.3d at 705-06. A review of the record shows that 

Morales-Espania’s testimony regarding the threats he received 

was detailed. 

With regard to the death of Morales-Espania’s uncle, 

Morales-Espania testified during direct examination that he 

could not remember the year his uncle died, and during 

cross-examination, which took place a year and a half after 

direct examination, he testified that his uncle died in 2001. 

During direct examination, Morales-Espania testified that his 

father was assassinated in 1995; he was then confronted with 

his father’s death certificate, which showed that his father 

died in 1994. Morales-Espania testified that he misspoke 

because he had not remembered the exact year his father died. 

The only contradiction in Morales-Espania’s testimony is that 
6

he stated that his father died in 1995, before correcting 

himself. 

Finally, the IJ found Morales-Espania not credible in part 

because he “admitted that he previously lied to immigration 

officials to obtain an advantageous outcome.” A.R. 68. 

Morales-Espania testified that when he first entered the United 

States in 2002, he was immediately apprehended by U.S. border 

officials. He told the officials that he was Mexican, as he 

was instructed to do by the individuals who smuggled him into 

the United States, so that he would be returned to Mexico and 

have an easier time crossing the border again. He testified 

that had he thought he was going to be returned to Guatemala, 

he would have told the border officials that he was scared to 

return. While an IJ generally may rely on the doctrine falsus 

in uno, falsus in omnibus – as the IJ did here to find that 

Morales-Espania’s false statement to border officials infected 

the entirety of his claim – there are exceptions to that 

doctrine. Siewe v. Gonzales, 480 F.3d 160, 170-71 (2d Cir. 

2007). Exceptions exist where false evidence was provided in 

a situation relating to escape from persecution or where an 

alien talking to U.S. officials may not be entirely forthcoming 
7

because of a fear of government authorities in general. Id. 

Notwithstanding these exceptions, the IJ found 

Morales-Espania’s statement to U.S. border officials to be the 

“most significant[]” basis for the adverse credibility 

determination. A.R. 68. 

Moreover, “[f]alse evidence that is wholly ancillary to the 

alien’s claim may, in some circumstances, be insufficient by 

itself to warrant a conclusion that the entirety of the alien’s 

uncorroborated material evidence is also false.” Siewe, 480 

F.3d at 170. Morales-Espania’s false statement to border 

officials is ancillary to his claim that he fears harm from gang 

members in Guatemala. This single false statement, together 

with one other very minor inconsistency, is insufficient to 

sustain an adverse credibility determination. See Xiu Xia Lin, 

534 F.3d at 167. 

The BIA affirmed the IJ’s adverse credibility 

determination without discussing any of the specific reasons 

the IJ cited in support of its conclusion that Morales-Espania 

was not credible. Instead, the BIA impermissibly engaged in 

fact-finding and relied on inconsistencies that the IJ did not 

mention or consider. See Weinong Lin v. Holder, 763 F.3d 244, 
8

247 (2d Cir. 2014) (observing that “the BIA has no power to find 

facts”); 8 C.F.R. § 1003.1(d)(3)(i), (iv). The BIA found that 

certain details of Morales-Espania’s testimony regarding 

threats from gangs and car accidents allegedly caused by cut 

brake lines were inconsistent with testimony from his sister 

and brother-in-law. The IJ made no such finding. 

Accordingly, the BIA erred in engaging in independent 

fact-finding and, considering the totality of the 

circumstances, the credibility finding is unsupported by 

substantial evidence. 

Particular Social Group 

 The agency concluded in the alternative that even if 

Morales-Espania was credible, he did not establish that he was 

a member of a particular social group within the meaning of the 

immigration statute. The agency omitted considering certain 

evidence in reaching its conclusion. Morales-Espania stated 

that Guatemalan gang members threatened and attempted to harm 

him because of his membership in ASAGACH, an incorporated 

organization with bylaws and board members. While the IJ 

acknowledged Morales-Espania’s defined group, he did not 

analyze whether this group was a particular social group within 
9

the meaning of the Act. Instead, he determined that 

Morales-Espania’s membership was “incidental to his family’s 

status as relatively well-off merchants” and concluded 

generally that neither “affluent Guatemalans” nor “shared 

opposition to gang violence” constitute a particular social 

group. A.R. 69. 

Similarly, the BIA concluded that Morales-Espania did not 

“sufficiently demonstrate that the business people associated 

with farmers and ranchers, who also provide support for the 

poor, are perceived, considered, or recognized by Guatemalan 

society to be a distinct social group.” A.R. 5. The BIA did 

not specifically address the significance of Morales-Espania’s 

particular organization nor did it discuss whether members of 

that particular organization are perceived as socially distinct 

within the town in which it operates. See Matter of W-G-R-, 

26 I&N Dec. 208, 217-18 (B.I.A. 2014); see also Paloka v. Holder, 

762 F.3d 191, 195-97 (2d Cir. 2014). 

 The agency additionally concluded that Morales-Espania had 

not shown a nexus between any harm he suffered and his group 

membership. This finding is also infected by the agency’s 

failure to consider Morales-Espania’s actual group: to 
10

determine whether an applicant was harmed on account of his 

membership in a particular social group, the agency must first 

correctly identify the group to which the applicant belongs. 

Matter of W-G-R-, 26 I&N Dec. at 223-24. This finding is 

further infected by the agency’s failure to consider 

Morales-Espania’s testimony. Although the agency’s nexus 

finding is cast as an alternative to the adverse credibility 

determination, the agency failed to credit, or even mention, 

Morales-Espania’s testimony that members of ASAGACH were 

sometimes threatened by gangs, that gangs wanted the 

organization to cease to exist, that his father and uncle were 

killed for belonging to the organization, and that he was 

personally threatened with death if he did not leave the 

organization. 

 For the foregoing reasons, the petition for review is 

GRANTED with regard to withholding of removal and the case is 

remanded to the agency. The petition is DISMISSED with regard 

to Morales-Espania’s claims for asylum and CAT relief. 

 FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk