19-2649

Bolivar-Sinchi v. Garland

BIA

Christensen, IJ

A206 419 548

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 15th day of February, two thousand twentytwo.

PRESENT:

JOSÉ A. CABRANES,

SUSAN L. CARNEY,

MICHAEL H. PARK,

Circuit Judges.

_____________________________________

MARIO BOLIVAR-SINCHI,

Petitioner,

v. 19-2649

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: H. Raymond Fasano, Youman, Madeo 

& Fasano, LLP, New York, NY. 
2

FOR RESPONDENT: Joseph H. Hunt, Assistant

Attorney General; Jessica A. 

Dawgert, Senior Litigation 

Counsel; Jacob A. Bashyrov, Trial 

Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

DC.

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 DENIED.

Petitioner Mario Bolivar-Sinchi, a native and citizen of

Ecuador, seeks review of a July 31, 2019 decision of the BIA 

affirming a January 25, 2018 decision of an Immigration Judge 

(“IJ”) denying asylum, withholding of removal, and protection 

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

Bolivar-Sinchi, No. A 206 419 548 (B.I.A. July 31, 2019), 

aff’g No. A 206 419 548 (Immig. Ct. N.Y. City Jan. 25, 2018). 

We assume the parties’ familiarity with the underlying facts 

and procedural history. 

We have considered both the IJ’s and the BIA’s opinions 

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

Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The 

applicable standards of review are well established. See 8 
3

U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 

67, 76 (2d Cir. 2018) (reviewing adverse credibility 

determination for substantial evidence). The IJ may, 

“[c]onsidering the totality of the circumstances,” base a 

credibility finding on inconsistencies in an applicant’s

statements or between his statements and other evidence, 

“without regard to whether an inconsistency, inaccuracy, or 

falsehood goes to the heart of the applicant’s claim.” 8 

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

adverse credibility determination unless, from the totality 

of the circumstances, it is plain that no reasonable factfinder could make such an adverse credibility ruling.” Xiu 

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

Hong Fei Gao, 891 F.3d at 76. Upon review, we conclude that 

substantial evidence supports the agency’s adverse 

credibility determination. 

The agency reasonably relied on inconsistencies between 

Bolivar-Sinchi’s testimony and statements made by him during 

his credible fear interview. When discrepancies arise from 

an applicant’s statements in a credible fear interview, we

closely examine the interview record to ensure that it 
4

represents a sufficiently accurate record of the applicant’s 

statements to merit consideration in determining credibility. 

See Ming Zhang v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009). 

The record of Bolivar-Sinchi’s interview contains the 

following indicia of reliability: (1) it includes a list of 

questions and responses; (2) the interviewer posed questions 

to elicit an asylum claim; (3) Bolivar-Sinchi did not appear

reluctant to reveal information; and (4) his responses 

suggested that he understood the interpreter. Id. at 724.

Further, a comparison of the interview record and BolivarSinchi’s testimony reveals the inconsistencies identified by 

the IJ. 

To begin, Bolivar-Sinchi testified that he was not a 

formal member of the Patriotic Society Party (“PSP”), but he 

stated at the interview that he was a member of PSP and that 

he joined in October 2013 because they gave him a job. The 

IJ was not required to credit his explanation that he meant 

the party might give him a job if it won. See Majidi v. 

Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 

do more than offer a plausible explanation for his 

inconsistent statements to secure relief; he must demonstrate 
5

that a reasonable fact-finder would be compelled to credit 

his testimony.” (internal quotation marks omitted) (emphasis 

in original). Bolivar-Sinchi also testified that he was at

work hanging up posters outside on the date of the October 

2013 attack, but he stated at his credible fear interview 

that he was attacked on his way to work. 

The IJ also reasonably relied on inconsistencies between 

Bolivar-Sinchi’s testimony and his affidavit. BolivarSinchi testified that his political activities were limited 

to hanging posters and talking to people in the community to 

gain support for the PSP. But in his affidavit he asserted

that he helped the candidates set up the areas where they 

were going to give speeches. The IJ reasonably rejected his 

explanation that his lawyer may not have understood him, 

particularly given his confirmation that his attorney had 

reviewed the statement with him, and the statement was true 

and correct. See Majidi, 430 F.3d at 80. 

More crucially here, Bolivar-Sinchi testified that he 

was hit and kicked during a November 2013 attack, resulting 

in a laceration to his head. In his affidavit, however, he

reported that he was threatened at gunpoint in the November 
6

2013 encounter; he did not mention any physical attack or 

injury. 

The IJ also found that Bolivar-Sinchi’s testimony was 

inconsistent regarding the details of the October 2013 

attack. It is true, as Bolivar-Sinchi points out, that the 

testimony could be viewed as inconsistent, but the 

purportedly inconsistent portions may simply have been a 

result of confusion over what was asked. But we defer to the 

IJ’s assessment that the assertions were in fact 

inconsistent. See Siewe v. Gonzales, 480 F.3d 160, 167-68

(2d Cir. 2007) (“Where there are two permissible views of the 

evidence, the factfinder’s choice between them cannot be 

clearly erroneous . . . . [and] a reviewing court 

must defer to that choice so long as the deductions are not 

illogical or implausible.” (internal citations and quotation 

marks omitted)). Although this particular inconsistency may 

not alone provide strong support for the agency’s adverse 

credibility determination, that determination is supported by 

substantial evidence given the “cumulative effect” of the 

inconsistencies reviewed above. Hong Fei Gao, 891 F.3d at 

77 (internal quotation marks omitted). 
7

The adverse credibility determination that we sustain is 

dispositive of Bolivar-Sinchi’s claims for, withholding of 

removal and CAT relief as well as asylum because they all 

rest on the same factual predicate. See Paul v. Gonzales, 

444 F.3d 148, 156–57 (2d Cir. 2006). 

For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court