16-330 

Hernandez v. Sessions 

BIA 

Wright, IJ 

A200 236 433 

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 for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

7th 4 day of March, two thousand seventeen. 

5 

6 PRESENT: 

7 GUIDO CALABRESI,

8 RICHARD C. WESLEY, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 MARIA SUYAPA HERNANDEZ, 

14 Petitioner, 

15 

16 v. 16-330 

17 NAC 

18 JEFFERSON B. SESSIONS, III, UNITED 

19 STATES ATTORNEY GENERAL, 

20 Respondent.* 

21 _____________________________________ 

22 

23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, NY. 

24 

25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

26 Assistant Attorney General; Mary 

 

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney 

General Jefferson B. Sessions, III, is automatically substituted for 

former Attorney General Loretta E. Lynch as Respondent.
2 

1 Jane Candaux, Assistant Director; 

2 Aimee J. Carmichael, Trial Attorney, 

3 Office of Immigration Litigation, 

4 United States Department of Justice, 

5 Washington, DC. 

6 

7 UPON DUE CONSIDERATION of this petition for review of a 

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

9 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

10 DENIED. 

11 Petitioner Maria Suyapa Hernandez, a native and citizen of 

12 Honduras, seeks review of a January 11, 2016, decision of the 

13 BIA, affirming a December 16, 2014, decision of an Immigration 

14 Judge (“IJ”) denying asylum, withholding of removal, and relief 

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

16 Suyapa Hernandez, No. A200 236 433 (B.I.A. Jan. 11, 2016), aff’g

17 No. A200 236 433 (Immig. Ct. N.Y.C. Dec. 16, 2014). We assume 

18 the parties’ familiarity with the underlying facts and 

19 procedural history in this case. 

20 Under the circumstances of this case, we have reviewed the 

21 IJ’s decision as modified by the BIA, that is, minus the bases 

22 for denying relief that were not considered by the BIA. Yang 

23 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

24 Accordingly, we do not address the IJ’s conclusion that 

25 Hernandez’s asylum application was untimely, which the BIA did 
3 

1 not rely on. Id. The applicable standards of review are well 

2 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 

3 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 

4 Considering the totality of the 

5 circumstances, and all relevant factors, a 

6 trier of fact may base a credibility 

7 determination on . . . the inherent 

8 plausibility of the applicant’s . . . 

9 account, the consistency between the 

10 applicant’s . . . written and oral statements 

11 . . . , the internal consistency of each such 

12 statement, [and] the consistency of such 

13 statements with other evidence of record . 

14 . . without regard to whether an 

15 inconsistency, inaccuracy, or falsehood 

16 goes to the heart of the applicant’s claim, 

17 or any other relevant factor. 

18 

19 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 

20 Substantial evidence supports the agency’s determination that 

21 Hernandez was not credible as to her claim that her former 

22 partner threatened to kill her and abused her daughter. 

23 The agency reasonably relied on Hernandez’s inconsistent 

24 statements regarding her partner’s threat to kill her. See

25 8 U.S.C. § 1158(b)(1)(B)(iii). In her written statement, 

26 Hernandez claimed that her partner threatened to kill her when 

27 she accused him of molesting her daughter, but she testified 

28 inconsistently that she never confronted him about the abuse. 

29 Furthermore, when asked to explain why her partner threatened 

30 to kill her (if not a result of a confrontation about the alleged 
4 

1 abuse), Hernandez could not say what they were arguing about, 

2 but rather avoided answering the question. 

3 The agency also reasonably relied on Hernandez’s omission 

4 from her written statement of her claims that her partner 

5 threatened to behead her and raped her multiple times. See

6 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d 

7 at 166-67 & n.3 (“An inconsistency and an omission are . . . 

8 functionally equivalent.”). The agency also did not err in 

9 finding Hernandez’s testimony inconsistent with her border 

10 interview. She testified that she told U.S. immigration 

11 officials at the border that she was afraid to return to 

12 Honduras, but the record of that sworn statement, which bore 

13 the hallmarks of reliability, reflected that she stated she had 

14 no fear of returning to Honduras. See 8 U.S.C. 

15 § 1158(b)(1)(B)(iii); Zhang v. Holder, 585 F.3d 715, 721-22 (2d 

16 Cir. 2009) (recognizing that interview record “bears hallmarks 

17 of accuracy and reliability” when it contains “a verbatim 

18 account or transcript[,] . . . was conducted in a manner designed 

19 to elicit the details of an asylum claim[,] . . . and . . . 

20 contains no indication that the alien was reluctant to reveal 

21 information or did not understand” (internal quotation marks 

22 and citations omitted)). Hernandez did not compellingly 
5 

1 explain any of the record inconsistencies. See Majidi v. 

2 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). 

3 Having questioned Hernandez’s credibility, the IJ 

4 reasonably relied further on Hernandez’s failure to 

5 rehabilitate her testimony with any evidence corroborating her 

6 claim. “An applicant’s failure to corroborate his or her 

7 testimony may bear on credibility, because the absence of 

8 corroboration in general makes an applicant unable to 

9 rehabilitate testimony that has already been called into 

10 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 

11 2007). The agency was not compelled to credit Hernandez’s 

12 explanation that her daughter who lives in the United States 

13 could not testify because she is also in removal proceedings, 

14 particularly as the explanation did not account for the absence 

15 of a written statement. Cf. Yan Juan Chen v. Holder, 658 F.3d 

16 246, 253 (2d Cir. 2011) (holding that a reasonable fact finder 

17 is not compelled to conclude that a spouse is unavailable to 

18 testify based on fear of arrest due to unlawful status). 

19 Moreover, the IJ was not required to give Hernandez additional 

20 time to obtain corroborating statements or to explain why the 

21 missing evidence was not reasonably available. See Liu v. 
6 

1 Holder, 575 F.3d 193, 196-97 (2d Cir. 2009); Diallo v. Gonzales, 

2 445 F.3d 624, 633-34 (2d Cir. 2006). 

3 Given the inconsistency and lack of corroboration 

4 findings, the agency’s adverse credibility determination is 

5 supported by substantial evidence. 8 U.S.C. 

6 § 1158(b)(1)(B)(iii). That determination is dispositive of 

7 asylum, withholding of removal, and CAT relief because all three 

8 claims are based on the same factual predicate. See Paul v. 

9 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 

10 There is no merit to Hernandez’s argument that the BIA 

11 should have found the Government in default and ruled in her 

12 favor based on the Government’s decision not to file a brief 

13 on appeal to the BIA. The Government was permitted to file a 

14 response brief to Hernandez’s brief on appeal, but it was not 

15 required to do so. See BIA Practice Manual § 4.6(f) (“When the 

16 appealing party files an appeal brief, the other party may file 

17 a ‘response brief.’”). 

18 For the foregoing reasons, the petition for review is 

19 DENIED. As we have completed our review, any stay of removal 

20 that the Court previously granted in this petition is VACATED, 

21 and any pending motion for a stay of removal in this petition 

22 is DISMISSED as moot. Any pending request for oral argument 
7 

1 in this petition is DENIED in accordance with Federal Rule of 

2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

3 34.1(b). 

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk