10-684-ag Carranza v. Holder BIA Hom, IJ A094 095 153 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 8 th** **day of July, two thousand eleven.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **GERARD E. LYNCH,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **CORNELIO CARRANZA,** 13 14 Petitioner**,** 15 16 **v. 10-684-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 21 Respondent**.** 22

**______________________________________** 23 24 **FOR PETITIONER: Andrew P. Johnson, New York, NY.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Shelley R. Goad, Assistant** 28 **Director; Jennifer A. Singer, Trial** 29 **Attorney, Office of Immigration** 30 **Litigation, Civil Division, U.S.** 31 **Department of Justice, Washington,** 32 **D.C.** 332 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DISMISSED in part and DENIED in part. 4 Petitioner Cornelio Carranza, a native and citizen of 5 El Salvador, seeks review of a January 29, 2010, decision of 6 the BIA affirming the May 10, 2007, decision of Immigration 7 Judge (“IJ”) Sandy Hom, which (1) pretermitted his 8 application for asylum, (2) denied his applications for 9 withholding of removal and relief under the Convention 10 Against Torture (“CAT”), and (3) denied his request for 11 special rule cancellation of removal pursuant to the 12 Nicaraguan Adjustment and Central American Relief Act of 13 1997 (“NACARA”). In re Cornelio Carranza , No. A094 095 153 14 (B.I.A. Jan. 29, 2010), aff’gNo. A094 095 153 (Immig. Ct. 15 N.Y. City May 10, 2007). We assume the parties’ familiarity 16 with the underlying facts and procedural history of the 17

case. 18 We have reviewed the decision of the IJ as supplemented 19 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 20 Cir. 2005). Under the circumstances of this case, “the 21 administrative findings of fact are conclusive unless any 22 reasonable adjudicator would be compelled to conclude to the 233 contrary.” 8 U.S.C. § 1252(b)(4)(B). “The substantial 1 evidence standard of review applies, and we uphold the IJ’s 2 factual findings if they are supported by reasonable, 3 substantial[,] and probative evidence in the record.” 4 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) 5 (internal quotation marks and citations omitted). 6 **I. Adverse Credibility Determination** 7 In finding Carranza not credible, the IJ reasonably 8 relied on inconsistencies in his testimony regarding his 9 killing of a farmer while serving in the Salvadoran 10 military. See Secaida-Rosales v. INS, 331 F.3d 297, 308-09 11 (2d Cir. 2003), superseded by statute on other grounds as 12 recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d 13 Cir. 2008). As the IJ found, in contrast to his testimony 14 that he was ordered only to follow the farmer but killed the 15 farmer in self-defense when the farmer attacked him, 16 Carranza’s later testimony and his asylum application 17 indicated that he carried out an order to kill the farmer. 18 Carranza does not challenge this finding, and it stands as a 19 valid basis for the IJ’s adverse credibility determination. 20 See Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 21 2008); see also8 U.S.C. § 1158(b)(1)(B)(iii). 224 The IJ also reasonably relied on omissions in 1 Carranza’s asylum application in denying his claim. 2 Although Carranza explained that he “didn’t go into detail” 3 in his application, the IJ was entitled to disregard this 4 explanation, as it would not necessarily be compelling to a 5 reasonable factfinder. See Majidi v. Gonzales , 430 F.3d 77, 6 80-81 (2d Cir. 2005). Despite Carranza’s claim that the 7 omission was merely “collateral” to his underlying claim for 8 relief, the IJ’s reliance on these omissions was reasonable 9 because, as the IJ noted, the facts that the man Carranza 10 killed was allegedly armed and attacked him first were 11 especially salient omissions, in light of Carranza’s 12 contention that he killed the man in self-defense. See 13 Secaida-Rosales, 331 F.3d at 308-09. 14 Given the IJ’s findings, substantial evidence supports 15 his adverse credibility determination, and the agency 16 properly denied Carranza’s applications for withholding of 17 removal and CAT relief because the only evidence that 18 Carranza would be persecuted or tortured depended on his 19 credibility. See id. ; Paul v. Gonzales, 444 F.3d 148, 156 20 (2d Cir. 2006). Accordingly, we need not reach Carranza’s 21 arguments that he established past persecution or a 22 likelihood of future persecution. See Liang Chen v. U.S. 235 Att’y Gen. , 454 F.3d 103, 106-107 (2d Cir. 2006). 1 **II. NACARA Relief** 2 Under Section 1252(a)(2)(B)(i) of Title 8 of the United 3 States Code, we lack jurisdiction to review the agency’s 4 denial of relief under 8 U.S.C. § 1229b, the cancellation5 of-removal statute. See Barco-Sandoval v. Gonzales , 516 6 F.3d 35, 38-39 (2d Cir. 2008) (upholding De La Vega v. 7 Gonzales, 436 F.3d 141 (2d Cir. 2006)). Special rule 8 cancellation of removal under NACARA is subject to the 9 jurisdiction-stripping provision of 8 U.S.C. 10 § 1252(a)(2)(B)(i) as well. See NACARA § 203(a)(1), Pub. L. 11 105-100, 111 Stat. at 2197-98. Nonetheless, we retain 12 jurisdiction to review “constitutional claims or questions 13 of law raised upon a petition for review.” 8 U.S.C. 14 § 1252(a)(2)(D); see also Xiao Ji Chen v. U.S. Dep’t of 15 Justice , 471 F.3d 315, 325 (2d Cir. 2006). 16 Here, the agency found Carranza ineligible for NACARA 17 relief because he: (1) did not establish the required seven 18 years of continuous physical presence in the United States 19 given his testimony which was both internally inconsistent 20 and inconsistent with testimony offered by his son; 21 (2) failed to establish the requisite “extreme hardship” to 226 either himself or a qualifying relative; and (3) failed to 1 meet the threshold eligibility requirements under 8 C.F.R. 2 § 1240.61. 3 Carranza challenges only the IJ’s factual findings 4 regarding the dates of his departure and reentry into the 5 United States, and the IJ’s failure to afford sufficient 6 weight to evidence establishing the requisite continuous 7 physical presence in the United States. Because these 8 arguments do not present a constitutional claim or question 9 of law, we lack jurisdiction to review them. See Xiao Ji 10 Chen, 471 F.3d at 326-29. Accordingly, we dismiss 11 Carranza’s petition with regard to his challenge to the 12 agency’s denial of NACARA relief. 13 For the foregoing reasons, the petition for review is 14 DENIED in part and DISMISSED in part. As we have completed 15 our review, any stay of removal that the Court previously 16 granted in this petition is VACATED, and any pending motion 17 for a stay of removal in this petition is DISMISSED as moot. 18

FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21 22