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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 8th 4 day of July, two thousand eleven.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 GERARD E. LYNCH,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _______________________________________

12

13 CORNELIO CARRANZA,

14

15 Petitioner, 16

17 v. 10-684-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21

22 Respondent.

23 ______________________________________

24

25 FOR PETITIONER: Andrew P. Johnson, New York, NY.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Shelley R. Goad, Assistant

29 Director; Jennifer A. Singer, Trial

30 Attorney, Office of Immigration

31 Litigation, Civil Division, U.S.

32 Department of Justice, Washington,

33 D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DISMISSED in part and DENIED in part.

5 Petitioner Cornelio Carranza, a native and citizen of

6 El Salvador, seeks review of a January 29, 2010, decision of

7 the BIA affirming the May 10, 2007, decision of Immigration

8 Judge (“IJ”) Sandy Hom, which (1) pretermitted his

9 application for asylum, (2) denied his applications for

10 withholding of removal and relief under the Convention

11 Against Torture (“CAT”), and (3) denied his request for

12 special rule cancellation of removal pursuant to the

13 Nicaraguan Adjustment and Central American Relief Act of

14 1997 (“NACARA”). In re Cornelio Carranza, No. A094 095 153

15 (B.I.A. Jan. 29, 2010), aff’g No. A094 095 153 (Immig. Ct.

16 N.Y. City May 10, 2007). We assume the parties’ familiarity

17 with the underlying facts and procedural history of the

18 case.

19 We have reviewed the decision of the IJ as supplemented

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

21 Cir. 2005). Under the circumstances of this case, “the

22 administrative findings of fact are conclusive unless any

23 reasonable adjudicator would be compelled to conclude to the
3

1 contrary.” 8 U.S.C. § 1252(b)(4)(B). “The substantial

2 evidence standard of review applies, and we uphold the IJ’s

3 factual findings if they are supported by reasonable,

4 substantial[,] and probative evidence in the record.” 

5 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009)

6 (internal quotation marks and citations omitted).

7 I. Adverse Credibility Determination

8 In finding Carranza not credible, the IJ reasonably

9 relied on inconsistencies in his testimony regarding his

10 killing of a farmer while serving in the Salvadoran

11 military. See Secaida-Rosales v. INS, 331 F.3d 297, 308-09

12 (2d Cir. 2003), superseded by statute on other grounds as

13 recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

14 Cir. 2008). As the IJ found, in contrast to his testimony

15 that he was ordered only to follow the farmer but killed the

16 farmer in self-defense when the farmer attacked him,

17 Carranza’s later testimony and his asylum application

18 indicated that he carried out an order to kill the farmer. 

19 Carranza does not challenge this finding, and it stands as a

20 valid basis for the IJ’s adverse credibility determination. 

21 See Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir.

22 2008); see also 8 U.S.C. § 1158(b)(1)(B)(iii). 
4

1 The IJ also reasonably relied on omissions in

2 Carranza’s asylum application in denying his claim. 

3 Although Carranza explained that he “didn’t go into detail”

4 in his application, the IJ was entitled to disregard this

5 explanation, as it would not necessarily be compelling to a

6 reasonable factfinder. See Majidi v. Gonzales, 430 F.3d 77,

7 80-81 (2d Cir. 2005). Despite Carranza’s claim that the

8 omission was merely “collateral” to his underlying claim for

9 relief, the IJ’s reliance on these omissions was reasonable

10 because, as the IJ noted, the facts that the man Carranza

11 killed was allegedly armed and attacked him first were

12 especially salient omissions, in light of Carranza’s

13 contention that he killed the man in self-defense. See

14 Secaida-Rosales, 331 F.3d at 308-09.

15 Given the IJ’s findings, substantial evidence supports

16 his adverse credibility determination, and the agency

17 properly denied Carranza’s applications for withholding of

18 removal and CAT relief because the only evidence that

19 Carranza would be persecuted or tortured depended on his

20 credibility. See id.; Paul v. Gonzales, 444 F.3d 148, 156

21 (2d Cir. 2006). Accordingly, we need not reach Carranza’s

22 arguments that he established past persecution or a

23 likelihood of future persecution. See Liang Chen v. U.S.
5

1 Att’y Gen., 454 F.3d 103, 106-107 (2d Cir. 2006).

2 II. NACARA Relief

3 Under Section 1252(a)(2)(B)(i) of Title 8 of the United

4 States Code, we lack jurisdiction to review the agency’s

5 denial of relief under 8 U.S.C. § 1229b, the cancellation6 of-removal statute. See Barco-Sandoval v. Gonzales, 516

7 F.3d 35, 38-39 (2d Cir. 2008) (upholding De La Vega v.

8 Gonzales, 436 F.3d 141 (2d Cir. 2006)). Special rule

9 cancellation of removal under NACARA is subject to the

10 jurisdiction-stripping provision of 8 U.S.C.

11 § 1252(a)(2)(B)(i) as well. See NACARA § 203(a)(1), Pub. L.

12 105-100, 111 Stat. at 2197-98. Nonetheless, we retain

13 jurisdiction to review “constitutional claims or questions

14 of law raised upon a petition for review.” 8 U.S.C.

15 § 1252(a)(2)(D); see also Xiao Ji Chen v. U.S. Dep’t of

16 Justice, 471 F.3d 315, 325 (2d Cir. 2006). 

17 Here, the agency found Carranza ineligible for NACARA

18 relief because he: (1) did not establish the required seven

19 years of continuous physical presence in the United States

20 given his testimony which was both internally inconsistent

21 and inconsistent with testimony offered by his son;

22 (2) failed to establish the requisite “extreme hardship” to
6

1 either himself or a qualifying relative; and (3) failed to

2 meet the threshold eligibility requirements under 8 C.F.R.

3 § 1240.61. 

4 Carranza challenges only the IJ’s factual findings

5 regarding the dates of his departure and reentry into the

6 United States, and the IJ’s failure to afford sufficient

7 weight to evidence establishing the requisite continuous

8 physical presence in the United States. Because these

9 arguments do not present a constitutional claim or question

10 of law, we lack jurisdiction to review them. See Xiao Ji

11 Chen, 471 F.3d at 326-29. Accordingly, we dismiss

12 Carranza’s petition with regard to his challenge to the

13 agency’s denial of NACARA relief. 

14 For the foregoing reasons, the petition for review is 

15 DENIED in part and DISMISSED in part. As we have completed

16 our review, any stay of removal that the Court previously

17 granted in this petition is VACATED, and any pending motion

18 for a stay of removal in this petition is DISMISSED as moot.

19 FOR THE COURT:

20 Catherine O’Hagan Wolfe, Clerk

21

22