19-864

Kquerare Salcedo v. Garland

BIA

Ruehle, IJ

A206 437 713

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.

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 4th 4 day of May, two thousand twenty-one.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 BARRINGTON D. PARKER,

9 JOSEPH F. BIANCO,

10 Circuit Judges.

11 _____________________________________

12

13 JAVIER SANTOS KQUERARE SALCEDO,

14 Petitioner,

15

16 v. 19-864

17 NAC

18 MERRICK B GARLAND, UNITED STATES

19 ATTORNEY GENERAL,*

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Jose Perez, Esq., Syracuse, NY.

24

25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

26 General; Russell J. E. Verby, 

27 Senior Litigation Counsel; Kristin 

* The Clerk of the Court is respectfully directed to amend the caption as set forth.
2

1 Moresi, Trial Attorney, Office of 

2 Immigration Litigation, United 

3 States Department of Justice, 

4 Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a 

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

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

8 is DENIED.

9 Petitioner Javier Santos Kquerare Salcedo, a native and 

10 citizen of Peru, seeks review of a March 5, 2019, decision of 

11 the BIA affirming a December 6, 2017, decision of an 

12 Immigration Judge (“IJ”) denying Salcedo’s application for 

13 asylum, withholding of removal, and relief under the 

14 Convention Against Torture (“CAT”). In re Javier Santos 

15 Kquerare Salcedo, No. A 206 437 713 (B.I.A. Mar. 5, 2019), 

16 aff’g No. A 206 437 713 (Immig. Ct. Buffalo Dec. 6, 2017). We 

17 assume the parties’ familiarity with the underlying facts and 

18 procedural history.

19 We have reviewed the decisions of both the IJ and the 

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

21 Cir. 2005). Salcedo does not challenge the agency’s denial 

22 of asylum as time barred, so we address only the adverse 

23 credibility that formed the basis for the denial of 
3

1 withholding of removal and CAT relief. The applicable 

2 standards of review are well established. See 8 U.S.C. 

3 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 

4 (2d Cir. 2018) (reviewing adverse credibility determination 

5 under substantial evidence standard). “Considering the 

6 totality of the circumstances, and all relevant factors, a 

7 trier of fact may base a credibility determination on the 

8 demeanor, candor, or responsiveness of the applicant or 

9 witness, . . . the consistency between the applicant’s . . . 

10 written and oral statements . . . , the internal consistency 

11 of each statement, the consistency of such statements with 

12 other evidence of record . . . and any inaccuracies or 

13 falsehoods in such statements, without regard to whether an 

14 inconsistency, inaccuracy, or falsehood goes to the heart of 

15 the applicant’s claim, or any other relevant factor.” 8 

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

17 credibility determination unless, from the totality of the 

18 circumstances, it is plain that no reasonable fact-finder 

19 could make such an adverse credibility ruling.” Xiu Xia Lin 

20 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 

21 Gao, 891 F.3d at 76. Substantial evidence supports the 
4

1 agency’s adverse credibility determination.

2 Salcedo alleged that he was sexually assaulted in 2000

3 and subsequently physically assaulted in the street because 

4 he was gay or bisexual. The agency reasonably relied on 

5 inconsistencies in his accounts of the physical assault and 

6 his fear of his relatives who were police officers. See 8 

7 U.S.C. § 1158(b)(1)(B)(iii). Salcedo’s asylum application

8 listed the physical assault as occurring in 2004, but he

9 testified it was in 2008 or 2009, and then changed his 

10 testimony back to 2004 when confronted with the 

11 inconsistency. And he initially alleged that he had multiple 

12 relatives who were police officers, but when pressed said 

13 only his great uncle Julian was a police officer. His 

14 sister’s testimony added further inconsistency because she 

15 testified that their uncle Leonardo was the only police 

16 officer in the family. Salcedo also testified inconsistently 

17 regarding his sexual history while in the United States, and 

18 his medical records conflicted with his testimony that he had 

19 attempted suicide because he feared returning to Peru. Taken 

20 together, these inconsistencies provide substantial support 

21 for the adverse credibility determination. See Xiu Xua Lin, 
5

1 534 F.3d at 167 (holding that agency may rely on “collateral 

2 or ancillary” inconsistencies where “cumulative effect” calls 

3 credibility into question (internal quotation marks 

4 omitted)).

5 Because Salcedo’s testimony was in question, the agency

6 reasonably relied on his failure to rehabilitate his 

7 testimony with any reliable corroborating evidence. See Biao 

8 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 

9 applicant’s failure to corroborate his or her testimony may 

10 bear on credibility, because the absence of corroboration in 

11 general makes an applicant unable to rehabilitate testimony 

12 that has already been called into question.”). As noted 

13 above, Salcedo’s sister’s testimony and medical records 

14 conflicted with his own statements. See Y.C. v. Holder, 741 

15 F.3d 324, 332, 334 (2d Cir. 2013) (“We generally defer to the 

16 agency’s evaluation of the weight to be afforded an 

17 applicant’s documentary evidence.”).

18 Given the inconsistencies and lack of reliable 

19 corroboration, substantial evidence supports the agency’s 

20 adverse credibility determination. See 8 U.S.C. 

21 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. That 
6

1 determination is dispositive of withholding of removal and 

2 CAT relief because both claims were based on the same factual 

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

4 Cir. 2006).

5 For the foregoing reasons, the petition for review is 

6 DENIED. All pending motions and applications are DENIED and 

7 stays VACATED.

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe,

10 Clerk of Court