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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **7 th**  **day of March, two thousand seventeen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **RICHARD C. WESLEY,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MARIA SUYAPA HERNANDEZ,** 13 Petitioner **,** 14 15 **v. 16-330** 16 **NAC** 17 **JEFFERSON B.**  **SESSIONS, III,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.*** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Bruno Joseph Bembi, Hempstead, NY. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Mary 26

* 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 Jane Candaux, Assistant Director; 1 Aimee J. Carmichael, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of Justice, 4 Washington, DC. 5 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 is 9

DENIED. 10 Petitioner Maria Suyapa Hernandez, a native and citizen of 11 Honduras, seeks review of a January 11, 2016, decision of the 12 BIA, affirming a December 16, 2014, decision of an Immigration 13 Judge (“IJ”) denying asylum, withholding of removal, and relief 14 under the Convention Against Torture (“CAT”). In re Maria 15 Suyapa Hernandez, No. A200 236 433 (B.I.A. Jan. 11, 2016), aff’g 16 No. A200 236 433 (Immig. Ct. N.Y.C. Dec. 16, 2014). We assume 17 the parties’ familiarity with the underlying facts and 18 procedural history in this case. 19 Under the circumstances of this case, we have reviewed the 20 IJ’s decision as modified by the BIA, that is, minus the bases 21 for denying relief that were not considered by the BIA. Yang 22 v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 23 Accordingly, we do not address the IJ’s conclusion that 24 Hernandez’s asylum application was untimely, which the BIA did 253 not rely on. Id . The applicable standards of review are well 1 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 2 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). 3 Considering the totality of the 4 circumstances, and all relevant factors, a 5 trier of fact may base a credibility 6 determination on . . . the inherent 7 plausibility of the applicant’s . . . 8 account, the consistency between the 9 applicant’s

. . . written and oral statements 10 . . . , the internal consistency of each such 11 statement, [and] the consistency of such 12 statements with other evidence of record . 13 . . without regard to whether an 14 inconsistency, inaccuracy, or falsehood 15 goes to the heart of the applicant’s claim, 16 or any other relevant factor. 17 18 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64. 19 Substantial evidence supports the agency’s determination that 20 Hernandez was not credible as to her claim that her former 21 partner threatened to kill her and abused her daughter. 22 The agency reasonably relied on Hernandez’s inconsistent 23 statements regarding her partner’s threat to kill her. See 24 8 U.S.C. § 1158(b)(1)(B)(iii). In her written statement, 25 Hernandez claimed that her partner threatened to kill her when 26 she accused him of molesting her daughter, but she testified 27 inconsistently that she never confronted him about the abuse. 28 Furthermore, when asked to explain why her partner threatened 29 to kill her (if not a result of a confrontation about the alleged 304 abuse), Hernandez could not say what they were arguing about, 1 but rather avoided answering the question. 2 The agency also reasonably relied on Hernandez’s omission 3 from her written statement of her claims that her partner 4 threatened to behead her and raped her multiple times. See 5 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d 6 at 166-67 & n.3 (“An inconsistency and an omission are . . . 7 functionally equivalent.”). The agency also did not err in 8 finding Hernandez’s testimony inconsistent with her border 9 interview. She testified that she told U.S. immigration 10 officials at the border that she was afraid to return to 11 Honduras, but the record of that sworn statement, which bore 12 the hallmarks of reliability, reflected that she stated she had 13 no fear of returning to Honduras. See 8 U.S.C. 14 § 1158(b)(1)(B)(iii); Zhang v. Holder , 585 F.3d 715, 721-22 (2d 15 Cir. 2009) (recognizing that interview record “bears hallmarks 16 of accuracy and reliability” when it contains “a verbatim 17

account or transcript[,]

. . . was conducted in a manner designed 18 to elicit the details of an asylum claim[,] . . . and . . . 19 contains no indication that the alien was reluctant to reveal 20 information or did not understand” (internal quotation marks 21 and citations omitted)). Hernandez did not compellingly 225 explain any of the record inconsistencies. See Majidi v. 1 Gonzales , 430 F.3d 77, 80 (2d Cir. 2005). 2 Having questioned Hernandez’s credibility, the IJ 3 reasonably relied further on Hernandez’s failure to 4 rehabilitate her testimony with any evidence corroborating her 5 claim. “An applicant’s failure to corroborate his or her 6 testimony may bear on credibility, because the absence of 7 corroboration in general makes an applicant unable to 8 rehabilitate testimony that has already been called into 9 question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 10 2007). The agency was not compelled to credit Hernandez’s 11 explanation that her daughter who lives in the United States 12 could not testify because she is also in removal proceedings, 13 particularly as the explanation did not account for the absence 14 of a written statement. Cf. Yan Juan Chen v. Holder , 658 F.3d 15 246, 253 (2d Cir. 2011) (holding that a reasonable fact finder 16 is not compelled to conclude that a spouse is unavailable to 17 testify based on fear of arrest due to unlawful status). 18 Moreover, the IJ was not required to give Hernandez additional 19 time to obtain corroborating statements or to explain why the 20 missing evidence was not reasonably available. See Liu v. 216 Holder , 575 F.3d 193, 196-97 (2d Cir. 2009); Diallo v. Gonzales , 1 445 F.3d 624, 633-34 (2d Cir. 2006). 2 Given the inconsistency and lack of corroboration 3 findings, the agency’s adverse credibility determination is 4 supported by substantial evidence. 8 U.S.C. 5 § 1158(b)(1)(B)(iii). That determination is dispositive of 6 asylum, withholding of removal, and CAT relief because all three 7 claims are based on the same factual predicate. See Paul v. 8 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 9 There is no merit to Hernandez’s argument that the BIA 10 should have found the Government in default and ruled in her 11 favor based on the Government’s decision not to file a brief 12 on appeal to the BIA. The Government was permitted to file a 13 response brief to Hernandez’s brief on appeal, but it was not 14 required to do so. See BIA Practice Manual § 4.6(f) (“When the 15 appealing party files an appeal brief, the other party may file 16 a ‘response brief.’”). 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our rev iew, any stay of removal 19 that the Court previously granted in this petition is VACATED, 20 and any pending motion for a stay of removal in this petition 21 is DISMISSED as moot. Any pending request for oral argument 227 in this petition is DENIED in accordance with Federal Rule of 1 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 2 34.1(b). 3
FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5