18-3125

Gonzalez-Aucay v. Barr

BIA

Straus, IJ

A208 538 178

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 21st 4 day of April, two thousand twenty.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 SUSAN L. CARNEY,

10 JOSEPH F. BIANCO,

11 Circuit Judges.

12 _____________________________________

13

14 HENRY VINICIO GONZALEZ-AUCAY,

15 Petitioner,

16

17 v. 18-3125

18 NAC

19 WILLIAM P. BARR, UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Gregory Osakwe, Esq., Hartford, 

25 CT.

26

27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

28 General; Derek C. Julius, 
2

1 Assistant Director; Zoe J. Heller, 

2 Trial Attorney, Office of

3 Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a 

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

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

9 is DENIED.

10 Petitioner Henry Vinicio Gonzalez-Aucay, a native and 

11 citizen of Ecuador, seeks review of a 2018 decision of the 

12 BIA affirming a 2017 decision of an Immigration Judge (“IJ”) 

13 denying Gonzalez-Aucay’s application for asylum, withholding 

14 of removal, and relief under the Convention Against Torture 

15 (“CAT”). In re Henry Vinicio Gonzalez-Aucay, No. A 208 538 

16 178 (B.I.A. Sept. 24, 2018), aff’g No. A 208 538 178 (Immig. 

17 Ct. Hartford Sept. 11, 2017). We assume the parties’ 

18 familiarity with the underlying facts and procedural history, 

19 to which we refer only as necessary to explain our decision 

20 to deny the petition.

21 We have reviewed both the IJ’s and BIA’s decisions “for 

22 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

23 Sec., Immigration & Customs Enf’t, 448 F.3d 524, 528 (2d Cir. 

24 2006). The applicable standards of review are well 
3

1 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 

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

3 credibility determination under a substantial evidence 

4 standard).

5 “Considering the totality of the circumstances, and all 

6 relevant factors, a trier of fact may base a credibility

7 determination on . . . the consistency between the applicant’s 

8 . . . written and oral statements . . . , the internal 

9 consistency of each such statement, . . . and any inaccuracies 

10 or falsehoods in such statements . . . .” 8 U.S.C. 

11 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 

12 determination unless . . . it is plain that no reasonable 

13 fact-finder could make such an adverse credibility ruling.” 

14 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 

15 accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence 

16 supports the agency’s adverse credibility determination. 

17 As the agency reasonably found, Gonzalez-Aucay’s 

18 descriptions of the relevant events were inconsistent in 

19 multiple ways. His application described three different 

20 encounters with government officials or police officers, but 

21 the statements he made about them at his hearing conflicted 
4

1 with his application’s description. First, as to the dates 

2 of the incidents, his testimony was inconsistent with his 

3 application regarding whether approximately one month elapsed 

4 between the first and second encounters or only a few days to 

5 a week. His testimony was internally inconsistent and also 

6 inconsistent with his application regarding the length of 

7 time that passed between the second and third incidents. 

8 Second, Gonzalez-Aucay’s application and testimony were 

9 inconsistent regarding whether he was beaten during the 

10 second incident or the third. Third, his application and 

11 testimony were inconsistent as to whether he was pulled over 

12 by individuals traveling in a police car or on foot and 

13 whether police officers participated in beating him. Fourth, 

14 his testimony, statements made by him during his credible 

15 fear interview, and statements made in his application were 

16 inconsistent regarding whether police officers tried to shoot 

17 him. Although Gonzalez-Aucay blamed these inconsistencies on 

18 mere memory lapses caused by the passage of time, the IJ was 

19 not required to accept the explanation because it did not 

20 resolve the inconsistencies. See Majidi v. Gonzales, 430 

21 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than 
5

1 offer a plausible explanation for his inconsistent statements 

2 to secure relief; he must demonstrate that a reasonable fact3 finder would be compelled to credit his testimony.” (internal 

4 quotation marks and citations omitted) (emphasis in 

5 original)). 

6 All of the inconsistencies relied on by the IJ and 

7 discussed above relate to the three alleged incidents of past 

8 persecution, and provide substantial evidence for the adverse 

9 credibility determination. See Xian Tuan Ye v. Dep’t of 

10 Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that 

11 “a material inconsistency in an aspect of [the applicant]’s 

12 story that served as an example of the very persecution from 

13 which he sought asylum” can provide substantial evidence for 

14 an adverse credibility ruling (quoting Majidi, 430 F.3d at 

15 81)). Because Gonzalez-Aucay’s persecution claims all rested 

16 on the same factual predicate, the IJ’s adverse credibility 

17 determination is dispositive of his requests for asylum, 

18 withholding of removal, and CAT relief. See Paul v. Gonzales, 

19 444 F.3d 148, 156–57 (2d Cir. 2006). Having arrived at this 

20 conclusion, we do not consider the agency’s alternative 

21 findings. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As 
6

1 a general rule courts and agencies are not required to make 

2 findings on issues the decision of which is unnecessary to 

3 the results they reach.”). 

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