20-3839

Moscoso-Mancia v. Garland

BIA

Poczter, IJ

A209 283 928

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 21st 4 day of July, two thousand twenty-two.

5

6 PRESENT:

7 ROBERT D. SACK,

8 RAYMOND J. LOHIER, JR.,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 ANA MARIA MOSCOSO-MANCIA,

14 Petitioner,

15

16 v. 20-3839

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Michael E. Rosado, Laurel, MD.

24 

25 FOR RESPONDENT: Brian M. Boynton, Acting 

26 Assistant Attorney General;

27 Benjamin Mark Moss, Senior 

28 Litigation Counsel; Sara J. 
2

1 Bayram, Trial Attorney, Office of 

2 Immigration Litigation, United 

3 States Department of Justice, 

4 Washington, DC.

5

6 UPON DUE CONSIDERATION of this petition for review of a 

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

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

9 is DENIED.

10 Petitioner Ana Maria Moscoso-Mancia, a native and citizen 

11 of El Salvador, seeks review of an October 9, 2020, decision 

12 of the BIA affirming a June 25, 2018, decision of an 

13 Immigration Judge (“IJ”) denying Moscoso-Mancia’s application 

14 for asylum, withholding of removal, and relief under the 

15 Convention Against Torture (“CAT”). In re Ana Maria Moscoso16 Mancia, No. A209 283 928 (B.I.A. Oct. 9, 2020), aff’g No. 

17 A209 283 928 (Immig. Ct. N.Y. City June 25, 2018). We assume 

18 the parties’ familiarity with the underlying facts and 

19 procedural history.

20 Under the circumstances, we have reviewed the IJ’s 

21 decision as modified and supplemented by the BIA. See Xue 

22 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d 

23 Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

24 2005). We review competency and adverse credibility findings 

25 for substantial evidence, treating “the administrative 
3

1 findings of fact . . . [as] conclusive unless any reasonable 

2 adjudicator would be compelled to conclude to the contrary.” 

3 8 U.S.C. § 1252(b)(4)(B); see Hong Fei Gao v. Sessions, 891 

4 F.3d 67, 76 (2d Cir. 2018); Diop v. Lynch, 807 F.3d 70, 75 

5 (4th Cir. 2015). We find no error in the agency’s decision 

6 not to evaluate Moscoso-Mancia’s competency or its 

7 determination that she was not credible as to her claim of 

8 persecution on account of her membership in the social group 

9 of Salvadoran women who are victims of domestic violence and 

10 unable to leave their abusive partners. 

11 A. Competency

12 “[A]n alien is presumed to be competent to participate 

13 in removal proceedings” and “[a]bsent indicia of mental 

14 incompetency, an Immigration Judge is under no obligation to 

15 analyze an alien’s competency.” Matter of M-A-M-, 25 I. & 

16 N. Dec. 474, 477 (B.I.A. 2011). “Indicia of incompetency 

17 include . . . the inability to understand and respond to 

18 questions, the inability to stay on topic, . . . a high level 

19 of distraction[,] . . . [or] evidence of mental illness . . 

20 . .” Id. at 479–80. “[T]he test for determining whether an 

21 alien is competent to participate in immigration proceedings 

22 is whether he or she has a rational and factual understanding 
4

1 of the nature and object of the proceedings, can consult with 

2 the attorney or representative if there is one, and has a 

3 reasonable opportunity to examine and present evidence and 

4 cross-examine witnesses.” Id. at 484. 

5 Moscoso-Mancia’s counsel did not raise any concerns as 

6 to her competency and her psychological evaluation did not 

7 provide any basis to conclude that she had difficulty 

8 understanding the nature of her removal proceedings or 

9 communicating with others. Accordingly, there were no

10 indicia of incompetency to prompt inquiry into her 

11 competence. See id. (“[I]f there are no indicia of 

12 incompetency in an alien’s case, no further inquiry regarding 

13 competency is required.”). Further, the record does not show 

14 that Moscoso-Mancia had difficulty understanding proceedings 

15 or presenting her evidence. Contrary to her contention that 

16 her testimony revealed that she had difficulty remembering 

17 certain events, the record shows that she answered every 

18 question responsively and expressed difficulty with recall 

19 only when confronted with prior inconsistent statements. 

20 Accordingly, given that Moscoso-Mancia knew the nature of her 

21 proceedings, communicated effectively, and testified 

22 responsively, the agency did not err in declining to evaluate 
5

1 her competency further. See id. at 479–84.

2 B. Adverse Credibility Determination

3 “Considering the totality of the circumstances, and all 

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

5 determination on . . . the consistency between the applicant’s 

6 or witness’s written and oral statements (whenever made and 

7 whether or not under oath, and considering the circumstances 

8 under which the statements were made), the internal 

9 consistency of each such statement . . . , and any 

10 inaccuracies or falsehoods in such statements, without regard 

11 to whether an inconsistency, inaccuracy, or falsehood goes to 

12 the heart of the applicant’s claim, or any other relevant 

13 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 

14 an IJ’s credibility determination unless, from the totality 

15 of the circumstances, it is plain that no reasonable fact16 finder could make such an adverse credibility ruling.” Xiu 

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

18 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports 

19 the agency’s determination that Moscoso-Mancia was not 

20 credible as to her claim of domestic violence.

21 As an initial matter, the agency did not err in relying 

22 on the record of Moscoso-Mancia’s credible fear interview in 
6

1 assessing credibility because the interview record bears the 

2 hallmarks of reliability: it was conducted with an 

3 interpreter, it was memorialized in a typewritten question4 and-answer format, the questions posed were designed to 

5 elicit details of an asylum claim, and her responses indicated 

6 that she understood the questions posed. See Ming Zhang v. 

7 Holder, 585 F.3d 715, 724–25 (2d Cir. 2009) (requiring 

8 scrutiny of credible fear interviews but finding record 

9 reliable where it was typewritten, demonstrated that the 

10 applicant understood the questions, reflected questions about 

11 past harm or fear of future harm, and was conducted with an 

12 interpreter). Contrary to Moscoso-Mancia’s contention, the 

13 interview record reflects that the interviewer reviewed the

14 summary of her statement with her and that she indicated that 

15 the summary was correct. 

16 The agency reasonably relied on inconsistencies between 

17 Moscoso-Mancia’s statements at her credible fear interview 

18 and her testimony before the IJ regarding whether she was 

19 legally married to her abuser, whether she told her parents 

20 about the abuse, and how she escaped from the house she shared 

21 with her abuser. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai 

22 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a 
7

1 single inconsistency might preclude an alien from showing 

2 that an IJ was compelled to find him credible. Multiple 

3 inconsistencies would so preclude even more forcefully.”). 

4 Moscoso-Mancia did not compellingly explain these 

5 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d 

6 Cir. 2005) (“A petitioner must do more than offer a plausible 

7 explanation for his inconsistent statements to secure relief; 

8 he must demonstrate that a reasonable fact-finder would be 

9 compelled to credit his testimony.” (quotation marks

10 omitted)); see also Ming Zhang, 585 F.3d at 722 (noting that 

11 an applicant’s assertion that she was nervous or afraid does 

12 not overcome a record of a sworn statement that has been 

13 deemed sufficiently reliable for purposes of a credibility 

14 determination). The agency also reasonably relied on her 

15 failure to rehabilitate these inconsistent statements with 

16 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 

17 268, 273 (2d Cir. 2007) (“An applicant’s failure to 

18 corroborate his or her testimony may bear on credibility, 

19 because the absence of corroboration in general makes an 

20 applicant unable to rehabilitate testimony that has already 

21 been called into question.”). 

22 Given the inconsistencies and lack of corroboration, the 
8

1 agency’s adverse credibility determination is supported by 

2 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);

3 Likai Gao, 968 F.3d at 145 n.8. That determination is 

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

5 because all three claims were based on the same factual 

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

7 Cir. 2006). Accordingly, we do not reach the agency’s 

8 alternative finding that Moscoso-Mancia failed to satisfy her 

9 burden of showing that Salvadoran officials were unable or 

10 unwilling to protect her. See INS v. Bagamasbad, 429 U.S. 

11 24, 25 (1976) (“As a general rule courts and agencies are not 

12 required to make findings on issues the decision of which is 

13 unnecessary to the results they reach.”). Further, as the 

14 Government argues, the IJ’s denial of a continuance is not 

15 before us because the BIA found it unnecessary to determine 

16 whether the proposed social group was cognizable given the 

17 dispositive adverse credibility determination. See Xue Hong 

18 Yang, 426 F.3d at 522; Lin Zhong v. U.S. Dep’t of Justice, 

* The BIA and Government incorrectly conclude that MoscosoMancia waived and thus failed to exhaust her claims for 

withholding of removal and CAT relief. The IJ denied all 

relief on credibility grounds; therefore, any challenge to 

the adverse credibility determination necessarily included a 

challenge to the denial of those forms of relief. 
9

1 480 F.3d 104, 122 (2d Cir. 2007) (“[W]e may consider only 

2 those issues that formed the basis for [the BIA’s] 

3 decision.”). 

4 For the foregoing reasons, the petition for review is 

5 DENIED. All pending motions and applications are DENIED and 

6 stays VACATED.

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe,

9 Clerk of Court

10