18-3730 Helena Moreira v. Wilkinson BIA Christensen, IJ A205 400 843 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 4 New York, on the 12th day of February, two thousand twenty- 5 one. 6 7 PRESENT: 8 ROSEMARY S. POOLER, 9 SUSAN L. CARNEY, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 SALVADOR HELENA MOREIRA, 15 Petitioner, 16 17 v. 18-3730 18 NAC 19 ROBERT M. WILKINSON, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 1 22 _____________________________________ 23 24 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, 25 NY.

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent. 1 2 FOR RESPONDENT: Brian Boynton, Acting Assistant 3 Attorney General; Nancy Friedman, 4 Senior Litigation Counsel; 5 Virginia Lum, Trial Attorney, 6 Office of Immigration Litigation, 7 United States Department of 8 Justice, Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Petitioner Salvador Helena Moreira (“Moreira”), a native

14 and citizen of El Salvador, seeks review of a December 11,

15 2018 decision of the BIA affirming a December 20, 2017

16 decision of an Immigration Judge (“IJ”) denying Moreira’s

17 application for asylum, withholding of removal, and relief

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

19 Helena Moreira, No. A 205 400 843 (B.I.A. Dec. 11, 2018),

20 aff’g No. A 205 400 843 (Immigr. Ct. N.Y.C. Dec. 20, 2017).

21 We assume the parties’ familiarity with the underlying facts

22 and procedural history.

23 We have reviewed both the IJ’s and BIA’s decisions. See

24 Ming Xia Chen v. BIA,

(2d Cir. 2006). The

25 applicable standards of review are well established. See 8

2

(b)(4)(B) (“[A]dministrative findings of fact

2 are conclusive unless any reasonable adjudicator would be

3 compelled to conclude to the contrary.”); Y.C. v. Holder, 741

, 332 (2d Cir. 2013); Hong Fei Gao v. Sessions, 891

(2d Cir. 2018).

6 As an initial matter, Moreira’s argument that, under

7 Pereira v. Sessions,

(2018), his notice to

8 appear (“NTA”) was ineffective to vest jurisdiction in the

9 immigration court is foreclosed by our decision in Banegas

10 Gomez v. Barr,

(2d Cir. 2019). “[A]n NTA that

11 omits information regarding the time and date of the initial

12 removal hearing is nevertheless adequate to vest jurisdiction

13 in the Immigration Court, at least so long as a notice of

14 hearing specifying this information is later sent to the

15 alien.”

. Moreira unquestionably received notice

16 of the hearings at which he appeared. To the extent that

17 Moreira challenges the agency’s denial of his asylum

18 application as untimely filed more than one year after his

19 entry, he conceded the untimely filing before the agency.

20 See Lin Zhong v. U.S. Dep’t of Just.,

, 122–24

21 (2d Cir. 2007) (discussing mandatory issue exhaustion).

3 1 Regardless, as discussed below, the agency’s adverse

2 credibility determination and finding that Moreira filed a

3 frivolous application are dispositive.

4 “Considering the totality of the circumstances, and all

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

6 determination on the demeanor, candor, or responsiveness of

7 the applicant . . . , the inherent plausibility of the

8 applicant’s . . . account, the consistency between the

9 applicant’s . . . written and oral statements . . . , the

10 internal consistency of each such statement, [and] the

11 consistency of such statements with other evidence of record

12 . . . without regard to whether an inconsistency, inaccuracy,

13 or falsehood goes to the heart of the applicant’s claim, or

14 any other relevant factor.”

(b)(1)(B)(iii).

15 “We defer . . . to an IJ’s credibility determination unless,

16 from the totality of the circumstances, it is plain that no

17 reasonable fact-finder could make such an adverse credibility

18 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

19 2008) (per curiam); accord Hong Fei Gao, 891 F.3d at 76.

20 The agency reasonably relied on Moreira’s multiple

21 inconsistent statements regarding whether he was attacked

4 1 after work as a consequence of catching two gang members

2 shoplifting, whether he returned to work after the incident,

3 whether he called the police, and when his bike was stolen.

4 The record reflects that Moreira’s testimony on these points

5 was inconsistent with his written statements, asylum

6 application, and the record of his credible fear interview.

7 Moreover, when confronted with these inconsistencies, Moreira

8 failed to provide compelling explanations and created further

9 contradictions. See Majidi v. Gonzales,

(2d

10 Cir. 2005) (“A petitioner must do more than offer a plausible

11 explanation for his inconsistent statements to secure relief;

12 he must demonstrate that a reasonable fact-finder would be

13 compelled to credit his testimony.” (internal quotation marks

14 omitted)). Given these material inconsistencies, the adverse

15 credibility determination is supported by substantial

16 evidence, see Xiu Xia Lin,

, and is

17 dispositive of asylum, withholding of removal, and CAT relief

18 because all three claims are based on the same factual

19 predicate, see Paul v. Gonzales,

(2d

20 Cir. 2006).

21 These inconsistencies also support the agency’s

5 1 determination that Moreira filed a frivolous application. If

2 the agency determines that an alien has knowingly filed a

3 frivolous application for asylum, the alien is permanently

4 ineligible for any immigration benefits, save withholding of

5 removal and CAT relief. See

(d)(6); 8 C.F.R.

6 § 1208.20. To make such a finding, an IJ must (1) give the

7 alien notice “of the consequences of filing a frivolous

8 application”; (2) make “a specific finding . . . that the

9 alien knowingly filed a frivolous application”; (3) identify

10 “sufficient evidence in the record to support the finding

11 that a material element of the asylum application was

12 deliberately fabricated”; and (4) allow the alien “sufficient

13 opportunity to account for any discrepancies or implausible

14 aspects of the claim.” Matter of Y-L,

,

15 155 (B.I.A. 2007); accord

.

16 In this case, Moreira received both oral and written

17 notice of the consequences of filing a frivolous application.

18 The IJ made a specific finding, separate from the adverse

19 credibility determination, regarding frivolousness. The IJ

20 explained that his finding was based on Moreira’s deliberate

21 act of providing materially different versions of his claim.

6 1 The IJ gave Moreira ample opportunity to address

2 inconsistencies, but Moreira’s explanations for the

3 inconsistencies did not resolve them and provided further

4 contradiction. See Majidi,

. Because the IJ

5 followed the proper procedural safeguards in making his

6 frivolousness finding, and the record reflects clear

7 contradictions in material elements of Moreira’s claim, we

8 find no error in the determination that he filed a frivolous

9 application. See Matter of Y-L,

.

10 For the foregoing reasons, the petition for review is

11 DENIED. All pending motions and applications are DENIED and

12 stays VACATED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court

7