18-1172

Buestan Rojas v. Garland

BIA

A206 869 546

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 for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 8 3 th day of November, two thousand 

4 twenty-two.

5

6 PRESENT:

7 JON O. NEWMAN,

8 DENNY CHIN,

9 RICHARD J. SULLIVAN,

10 Circuit Judges.

11 _____________________________________

12

13 GLADYS YOLANDA BUESTAN ROJAS,

14 Petitioner,

15

16 v. 18-1172

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________
2

1 FOR PETITIONER: Glen L. Formica, Formica, Williams, P.C., New 

2 Haven, CT.

3 

4 FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney 

5 General; Brianne Whelan Cohen, Senior 

6 Litigation Counsel; Deitz P. Lefort, Trial 

7 Attorney, Office of Immigration Litigation, 

8 United States Department of Justice, 

9 Washington, DC.

10

11 UPON DUE CONSIDERATION of this petition for review of a Board of 

12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

13 DECREED that the petition for review is DENIED.

14 Petitioner Gladys Yolanda Buestan Rojas, a native and citizen of Ecuador, 

15 seeks review of an April 18, 2018 decision of the BIA, denying her motion to 

16 reconsiderthe denial of her petition for asylum, withholding of removal, and relief 

17 under the Convention Against Torture. In re Gladys Yolanda Buestan Rojas, 

18 No. A206 869 546 (B.I.A. Apr. 18, 2018). We assume the parties’ familiarity with 

19 the underlying facts and procedural history.

20 We review the BIA’s denial of reconsideration for abuse of discretion. See 

21 Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). A motion to reconsider 

22 “shall specify the errors of law or fact in the previous order.” 8 U.S.C. 
3

1 § 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep’t of Justice, 

2 265 F.3d 83, 90 (2d Cir. 2001). 

3 As an initial matter, the BIA excused Buestan Rojas’s failure to exhaust her

4 challenge to the underlying adverse-credibility determination when it thoroughly 

5 addressed that determination in both its dismissal of Buestan Rojas’s appeal from 

6 the IJ and its denial of her motion to reconsider. See Xian Tuan Ye v. Dep’t of 

7 Homeland Sec., 446 F.3d 289, 296–97 (2d Cir. 2006) (excusing a petitioner’s failure to 

8 raise an issue before the BIA where the BIA considered the claim). We therefore 

9 have jurisdiction to consider Buestan Rojas’ petition as to the agency’s adverse10 credibility finding. See id.

11 Nevertheless, the BIA did not abuse its discretion in declining to reverse its 

12 prior decision, which was not based on an error of law or fact. See 8 U.S.C. 

13 § 1229a(c)(6)(C). Specifically, the agency’s adverse-credibility determination was 

14 supported by Buestan Rojas’s inconsistent statements regarding – among other 

15 things – whether she had ever been in the United States before, whether she feared 

16 harm or persecution if returned to Ecuador, whether she was apprehended and 

17 removed to Mexico when she first entered the United States in 2001, and whether 

18 she left Ecuador in 2014 without her husband’s knowledge or assistance.
4

1 Although Buestan Rojas was provided an opportunity to explain these 

2 inconsistencies during her removal hearing, she failed to do so. These 

3 inconsistencies therefore supported the agency’s adverse-credibility 

4 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137, 145 

5 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from 

6 showing that an IJ was compelled to find him credible. Multiple inconsistencies 

7 would so preclude even more forcefully.”). Thus, the BIA did not abuse its 

8 discretion in denying Buestan Rojas’s motion to reconsider. See 8 U.S.C.

9 § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao, 265 F.3d at 90.

10 For the foregoing reasons, the petition for review is DENIED. All pending 

11 motions and applications are DENIED and stays VACATED.

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe,

14 Clerk of Court