20-3403

Munoz v. Garland

BIA

Ruehle, IJ

A205 983 097

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 9th day of March, two thousand twenty-two.

PRESENT:

JOHN M. WALKER, JR.,

REENA RAGGI,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

MIZRAIM JAAZIEL BARRIOS MUNOZ,

Petitioner,

v. 20-3403

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Stephen K. Tills, Esq., Orchard 

Park, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant 

Attorney General; Jonathan 

Robbins, Senior Litigation 
2

Counsel; Timothy Bo Stanton, 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 Mizraim Jaaziel Barrios Munoz, a native and 

citizen of Guatemala, seeks review of a September 4, 2020, 

decision of the BIA affirming a June 18, 2018, decision of an 

Immigration Judge (“IJ”) denying asylum, withholding of 

removal, and protection under the Convention Against Torture 

(“CAT”). In re Barrios Munoz, No. A 205 983 097 (B.I.A. Sep.

4, 2020), aff’g No. A 205 983 097 (Immig. Ct. Buffalo June 18, 

2018). We assume the parties’ familiarity with the 

underlying facts and procedural history.

We review the IJ’s decision as supplemented by the 

BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

2005). The applicable standards of review are well 

established. See Yanqin Weng v. Holder, 562 F.3d 510, 513 

(2d Cir. 2009) (reviewing factual findings for substantial 

evidence and questions of law de novo); Hong Fei Gao v. 
3

Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse 

credibility determination under a substantial evidence 

standard).

As an initial matter, Munoz’s argument that his Notice 

to Appear (“NTA”) was insufficient to vest jurisdiction with 

the agency because it omitted the date of his initial hearing 

is foreclosed by Banegas Gomez v. Barr, in which we held that 

Pereira v. Sessions, 138 S. Ct. 2105 (2018), addresses a 

narrow question regarding the stop-time rule and does not 

“void jurisdiction in cases in which an NTA omits a hearing 

time or place” or require specification of the time and date 

of the initial hearing, “at least so long as a notice of 

hearing specifying this information is later sent to the 

alien.” 922 F.3d 101, 110–12 (2d Cir. 2019); see also Chery 

v. Garland, 16 F.4th 980, 987 (2d Cir. 2021) (holding that 

“Banegas Gomez remains good law even after . . . Niz-Chavez

[v. Garland, 141 S. Ct. 1474 (2021)]”). It is undisputed that 

Munoz received hearing notices with the missing information.

Turning to the merits of the agency’s decision, we 

conclude that substantial evidence supports the agency’s 

adverse credibility determination. “Considering the 
4

totality of the circumstances, and all relevant factors, a 

trier of fact may base a credibility determination on” 

inconsistencies within and between an applicant’s statements 

and other evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). “We 

defer . . . to an IJ’s credibility determination unless, from 

the totality of the circumstances, it is plain that no 

reasonable fact-finder 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. 

The agency reasonably relied on multiple inconsistencies 

among Munoz’s statements and evidence regarding the years 

when each attack occurred and when the gang first confronted 

him, whether he was hospitalized after the second attack, and 

whether the local authorities would protect him. See 8 

U.S.C. § 1158(b)(1)(B)(iii). The agency also reasonably 

relied on omissions from Munoz’s application. See Xiu Xia 

Lin, 534 F.3d at 167. Munoz’s application omitted that he 

worked as a mechanic at the time of the attacks, that gang 

members beat him in 2009, and that he had a brother named 

Wilson who also had been threatened by the gang in Guatemala. 

The agency was not required to credit Munoz’s explanations 
5

for the omissions, as they did not resolve the resulting 

inconsistency. 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 that a reasonable factfinder would be compelled to credit his testimony.” (internal 

quotation marks omitted)). Although we have cautioned that 

omissions may be “less probative” of credibility than 

inconsistencies, the agency did not err in relying on these 

omissions because Munoz gave inconsistent explanations 

regarding the omissions. See Hong Fei Gao, 891 F.3d at 78 

(holding that agency may rely on even non-material omissions, 

but probative value of omissions is greater where there is 

resulting inconsistency).1

In sum, given the omissions and inconsistencies,

substantial evidence supports the agency’s adverse

1 We do not rely on the agency’s finding that Munoz failed to 

testify to a March 2012 encounter with the gang because Munoz 

testified to experiencing threats and his application described 

this incident as involving only threats. This error does not 

require remand given the other bases for the adverse credibility 

determination. See Lianping Li v. Lynch, 839 F.3d 144, 149 (2d 

Cir. 2016) (explaining that “we may . . . deem remand futile” where 

“substantial evidence . . . considered in the aggregate, supports” 

the adverse credibility determination (internal quotation marks 

omitted)). 
6

credibility determination. See 8 U.S.C.

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

adverse credibility determination is dispositive of asylum, 

withholding of removal, and CAT relief because all three forms 

of relief were based 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