17-2991

Reina Murcia v. Whitaker

BIA

Verrillo, IJ

A206 779 037

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 14th day of January, two thousand nineteen.

PRESENT:

DENNIS JACOBS,

DEBRA ANN LIVINGSTON,

CHRISTOPHER F. DRONEY,

Circuit Judges.

_____________________________________

ROXANA GUADALUPE REINA MURCIA,

Petitioner,

v. 17-2991

NAC

MATTHEW G. WHITAKER, ACTING

UNITED STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Gregory Osakwe, Hartford, CT.

FOR RESPONDENT: Chad A. Readler, Acting Assistant 

Attorney General; Julie M. 

Iversen, Senior Litigation 

Counsel; Robert Michael Stalzer, 

Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, DC.
2

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 Roxana Guadalupe Reina Murcia, a native and 

citizen of El Salvador, seeks review of a September 5, 2017,

decision of the BIA affirming a January 3, 2017, decision of 

an Immigration Judge (“IJ”) denying Reina Murcia’s 

application for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). In re Roxana 

Guadalupe Reina Murcia, No. A 206 779 037 (B.I.A. Sept. 5, 

2017), aff’g No. A 206 779 037 (Immig. Ct. Hartford Jan. 3, 

2017). We assume the parties’ familiarity with the 

underlying facts and procedural history in this case.

In lieu of filing a brief, the Government moves for 

summary denial of Reina Murcia's petition for review. Rather 

than determine if the petition is frivolous as is required 

for summary denial, see Pillay v. INS, 45 F.3d 14, 17 (2d 

Cir. 1995), we construe the Government’s motion as its brief 

and deny the petition on the merits. 

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. See Yan Chen 
3

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review 

the agency’s adverse credibility determination under the

substantial evidence standard. See 8 U.S.C. 

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

66 (2d Cir. 2008). For applications such as Reina 

Murcia’s, governed by the REAL ID Act of 2005, the adverse 

credibility standard is as follows:

Considering the totality of the circumstances, and 

all relevant factors, a trier of fact may base a 

credibility determination on . . . the consistency 

between the applicant’s or witness’s written and 

oral statements . . . , the internal consistency of 

each such statement, the consistency of such 

statements with other evidence of record . . . , and 

any inaccuracies or falsehoods in such statements, 

without regard to whether an inconsistency, 

inaccuracy, or falsehood goes to the heart of the 

applicant’s claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 

credibility determination unless . . . it is plain that no 

reasonable fact-finder could make such an adverse credibility 

ruling.” Xiu Xia Lin, 534 F.3d at 167. The agency 

reasonably relied on inconsistencies among Reina Murcia’s 

testimony, documentary evidence, and credible fear interview 

in finding her not credible, which considered together, 

provide substantial evidence for the adverse credibility 

determination. See Hong Fei Gao v. Sessions, 891 F.3d 67, 
4

77–78 (2d Cir. 2018) (“The REAL ID Act does not erase our 

obligation to assess whether the agency has provided 

specific, cogent reasons for the adverse credibility finding 

and whether those reasons bear a legitimate nexus to the 

finding.” (internal quotation marks omitted)). 

First, the agency reasonably relied on an inconsistency

between Reina Murcia’s testimony at the merits hearing and 

the record of her credible fear interview regarding whether 

her abuser lived with her parents.1 Reina Murcia stated at 

her interview that her boyfriend moved in with her and her 

parents, but she later testified that she lived with him in 

a town that was five hours by bus from her parents’ home. 

Second, the agency also reasonably relied on Reina 

Murcia’s inconsistent statements regarding her boyfriend’s

relationship with another woman. At her credible fear 

 1 While Reina Murcia objected to the reliability of the credible 

fear interview during her initial hearing before the IJ, she did 

not renew this objection before the BIA, or before this Court. 

For that reason, any issue with the use of the credible fear 

interview is deemed unexhausted and waiver. See Lin Zhong v. U.S. 

Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (requiring 

petitioners to exhaust issues before the BIA); Norton v. Sam’s 

Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently 

argued in the briefs are considered waived and normally will not 

be addressed on appeal.”). Nevertheless, we find the agency did 

not err by relying on the record of the credible fear interview 

because it “displays the hallmarks of reliability.” Ming Zhang

v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). 
5

interview, Reina Murcia stated that her boyfriend hit her 

because she caught him with another woman and discovered that 

the woman was pregnant with her boyfriend’s child. However, 

she testified that she did not find them together and did not 

know of a pregnancy. 

Third, the agency reasonably relied on an inconsistency 

between Reina Murcia’s testimony and her doctor’s letter 

regarding when the abuse began. A 2016 letter from her doctor

stated that Reina Murcia received medical treatment for 

injuries beginning in December 2013. In contrast, she 

testified that her boyfriend first hit her three months after 

they started dating, i.e., in February or March 2014. 

Finally, the agency reasonably relied on an inconsistency 

between Reina Murcia’s testimony and her father’s letter 

regarding whether her parents witnessed the abuse. Her 

father’s letter states, “I express that sometimes I witnessed 

the bad mistreatment she received.” But Reina Murcia

testified that her father never saw her boyfriend hit or 

mistreat her. 

Reina Murcia was asked to explain all four 

inconsistencies. However, the agency was not required to 

accept her explanations, as none of them actually resolved 
6

the inconsistencies, let alone compelled her view. 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 fact-finder would be compelled

to credit his testimony.” (internal quotation marks and 

citations omitted)). Moreover, as the BIA noted, her 

documentary evidence did not rehabilitate her credibility 

because it conflicted with her testimony. Cf. Biao Yang v. 

Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 

Given the inconsistencies, the totality of the 

circumstances supports the agency’s adverse credibility 

ruling. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 

F.3d at 167. Because Reina Murcia’s claims were all based 

on the same factual predicate, the adverse credibility 

determination is dispositive of asylum, withholding of 

removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 

156-57 (2d Cir. 2006). 

For the foregoing reasons, the motion for summary denial 

is CONSTRUED as the Government’s brief and the petition for 

review is DENIED. As we have completed our review, any stay 

of removal that the Court previously granted in this petition 
7

is VACATED, and any pending motion for a stay of removal in 

this petition is DISMISSED as moot. Any pending request for 

oral argument in this petition is DENIED in accordance with 

Federal Rule of Appellate Procedure 34(a)(2), and Second 

Circuit Local Rule 34.1(b). 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court