19

- 864 Kquerare Salcedo v. Garland BIA Ruehle , IJ A 2 0 6 437 713 

### 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 FED**  **ERAL 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** 1 **for the Second Circuit ,**  **held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 4**  **t h**  **d a**  **y of M**  **a y**  **, two thousand twenty** 

**- one** 
**.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **BARRINGTON D. PARKER,** 8 **JOSEPH F. BIANCO,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **JAVIER SANTOS KQUERARE SALCEDO ,**  13 **Petitioner ,**  14 15
**v. 19** 

**- 864**  16 **NAC** 17 **MERRICK B GARLAND ,**  **UNITED STATES** 18 **ATTORNEY GENERAL ,**  ***** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Jose Perez , Esq., Syracuse, NY

. 23 24 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 25 General ; Russell J. E. Verby , 26 Senior Litigation Counsel ; Kristin 27

* The Clerk of the Court is respectfully directed to amend the caption as set forth.2 Moresi , Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D C. 4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 7

is DENIED

. 8

Petitioner Javier Santos Kquerare Salcedo , a native and 9

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

the BIA affirming a December 6, 2017 , decision of an 11
Immigration Judge (“IJ”) denying Salcedo’s application for 12
asylum, withholding of rem oval, and relief under the 13
Convention Against Torture (“CAT”). In re Javier Santos 14
Kquerare Salcedo , No. A 2 0 6 437 713 (B.I.A. Mar. 5, 2019 ), 15
aff’g No. A 2 0 6 437 713 (Immig. Ct. Buffalo Dec. 6, 2017 ). We 16
assume the parties’ familiarity with the underlying facts and 17
procedural history. 18

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

BIA. See Yun

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

Cir. 2005). Salcedo does not challenge the agency’s denial 21
of asylum as time barred, so we address on ly the adverse 22
credibility that formed the basis for the denial of 233 withholding of removal and CAT relief. The applicable 1

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

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

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

under substantial evidence standard)

. “Considering the 5
totality of the circumstances, and all relevant factors, a 6
trier of fact may base a credibility determination on the 7
demeanor, candor, or responsiveness o f the applicant or 8

witness, . . . the consistency between the applicant’s . . . 9
written and oral statements . . . , the internal consistency 10
of each statement, the consistency of such statements with 11
other evidence of record . . . and any inaccuracies or 12

f alsehoods in such statements, without regard to whether an 13
inconsistency, inaccuracy, or falsehood goes to the heart of 14
the applicant’s claim, or any other relevant factor.” 8 15

U.S.C. § 1158(b)(1)(B)(iii)

. “ We defer . . . to an IJ’s 16
credibility determination unless, from the totality of the 17
circumstances, it is plain that no reasonable fact

- finder 18
could make such an adverse credibility ruling.” Xiu Xia Lin 19
v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); accord Ho ng Fei 20

Gao , 891 F.3d at 76. Substantial evidence supports the 214 agency’s adverse credibility determination

. 1
Salcedo alleged that he was sexually assaulted in 200 0 2
and subsequently physically assaulted in the street because 3
he was gay or bisexual. The agen cy reasonably relied on 4
inconsistencies in his accounts of the physical assault and 5
his fear of his relatives who were police officers. See 8 6

U.S.C. § 1158(b)(1)(B)(iii). Salcedo’s asylum application 7
listed the physical assault as occurring in 2004, but he 8

testified it was in 2008 or 2009 , and then changed his 9
testimony back to 2004 when confronted with the 10
inconsistency

. And he initially alleged that he had multiple 11
relatives who were police officers, but when pressed said 12
only his great uncle Julian was a police officer. His 13

sister ’ s testimony added further inconsistency because she 14

testified that their unc le Leonardo was the only police 15
officer in the family

. Salcedo also testified inconsistently 16
regarding his sexual history while in the Uni ted States , and 17
his medical records conflicted with his testimony that he had 18
attempted suicide because he feared returning to Peru. Taken 19
together, these inconsistencies provide substantial support 20
for the adverse credibility determination. See Xiu Xua Lin , 215 534 F.3d at 167 (holding that agency may rely on “collateral 1

or ancillary” inconsistencies where “cumulative effect” calls 2
credibility into question (internal quotation marks 3

omitted)). 4

B ecause Salcedo’s testimony was in question, the agency 5
reasonably relied on his failure to rehabilitate his 6
testimony with any reliable corroborating evidence

. See Biao 7
Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An 8
applicant’s failure to corroborate his or her testimony may 9
bear on credibility, because the absence of corroboration in 10
general makes an applicant unable to rehabilitate testimony 11
that has already been called into question.” )

. As noted 12

above, Salce do’s sister’s testimony and medical records 13

conflicted with his own statement s . See Y.C. v. Holder , 741 14
F.3d 324, 332, 334 (2d Cir. 2013) ( “ We generally defer to the 15

agency ’ s evaluation of the weight to be afforded an 16
applicant ’ s documentary evidence. ”). 17

Given the inconsistencies and lack of reliable 18

corroboration, substantial evidence supports the agency’s 19
adverse credibility determination

. See 8 U.S.C. 20

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

. That 216 determination is dispositive of withholdin g of removal and 1

CAT relief because both claims were based on the same factual 2
predicate. See Paul v. Gonzales , 444 F.3d 148, 156

- 57 (2d 3

Cir. 2006). 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