16-4132 Miranda Perez v. Garland BIA Hom, IJ A205 401 464 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 30th day of April, two thousand twenty-one. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 ROSEMARY S. POOLER, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 GLENDA MIRANDA PEREZ, AKA GLENDA 14 VIVIANA MIRANDA PEREZ, 15 Petitioner, 16 17 v. 16-4132 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 1 22 _____________________________________ 23 24 FOR PETITIONER: Alyssa H. Manlowe, Benjamin A.

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 Butzin-Dozier, Justin S. 2 Kirschner, Latham & Watkins LLP, 3 New York, NY. 4 5 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 6 Assistant Attorney General; 7 Leslie McKay, Greg D. Mack, Senior 8 Litigation Counsel, Office of 9 Immigration Litigation, United 10 States Department of Justice, 11 Washington, DC.

12 UPON DUE CONSIDERATION of this petition for review of a

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

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

15 is DENIED.

16 Petitioner Glenda Miranda Perez, a native and citizen of

17 Guatemala, seeks review of a November 10, 2016, decision of

18 the BIA affirming a March 22, 2016, decision of an Immigration

19 Judge (“IJ”) denying her application for asylum, withholding

20 of removal, and relief under the Convention Against Torture

21 (“CAT”). In re Glenda Miranda Perez, No. A 205 401 464

22 (B.I.A. Nov. 10, 2016), aff’g No. A205 401 464 (Immig. Ct.

23 N.Y. City Mar. 22, 2016). We assume the parties’ familiarity

24 with the underlying facts and procedural history.

25 Under the circumstances of this case, we have reviewed

26 the IJ’s decision as modified by the BIA, i.e., minus the

27 IJ’s finding that Miranda Perez made a different claim at her 2 1 border interview. See Xue Hong Yang v. U.S. Dep’t of Justice,

2

(2d Cir. 2005). The standards of review

3 are well established. See

(b)(4)(B); Hong Fei

4 Gao v. Sessions,

(2d Cir. 2018).

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 or witness’s written and oral statements . . . , the internal

9 consistency of each such statement, the consistency of such

10 statements with other evidence of record . . . , and any

11 inaccuracies or falsehoods in such statements.” 8 U.S.C.

12 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

13 determination unless, from the totality of the circumstances,

14 it is plain that no reasonable fact-finder could make such an

15 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534

, 167 (2d Cir. 2008); accord Hong Fei Gao,

. Substantial evidence supports the adverse credibility

18 determination. See Hong Fei Gao, 891 F.3d at 76.

19 The IJ and BIA reasonably relied on inconsistencies

20 between Miranda Perez’s affidavit and her testimony regarding

21 the domestic violence she allegedly suffered in Guatemala.

3 1 See

(b)(1)(B)(iii). In her affidavit, Miranda

2 Perez stated that she was first attacked on February 25, 2012.

3 But, just three months after attesting to this exact date,

4 she testified inconsistently that she could not remember the

5 date of the attack because it had occurred so long ago. Her

6 affidavit and testimony further differed as to where the

7 attacks occurred (inside or outside her home), how many times

8 she was physically attacked, and what was used to attack her.

9 Given these inconsistencies, as well as her changing reasons

10 for not requesting help at the hospital or from the police,

11 the adverse credibility determination is supported by

12 substantial evidence. See Xian Tuan Ye v. Dep’t of Homeland

13 Security,

(2d Cir. 2006) (holding that “a

14 material inconsistency in an aspect of [petitioner]’s story

15 that served as an example of the very persecution from which

16 he sought asylum . . . afforded substantial evidence to

17 support the adverse credibility finding” (internal quotation

18 marks and citations omitted)). The adverse credibility

19 determination is dispositive of asylum, withholding of

20 removal, and CAT relief because all three claims were based

21 on this same discredited factual predicate. See Paul v.

4 1 Gonzales,

, 156–57 (2d Cir. 2006).

2 The agency’s denial of Miranda Perez’s motion for her

3 parents to testify by telephone from Guatemala does not compel

4 a contrary conclusion or violate due process. “To establish

5 a violation of due process, an alien must show that she was

6 denied a full and fair opportunity to present her claims or

7 that [she was] otherwise deprived . . . of fundamental

8 fairness,” Burger v. Gonzales,

(2d Cir.

9 2007) (internal quotation marks omitted), and that there was

10 “cognizable prejudice fairly attributable to the challenged

11 process,” Garcia-Villeda v. Mukasey,

(2d

12 Cir. 2008) (internal quotation marks omitted). First, the

13 IJ denied the motion because of technological limitations

14 and, although the IJ noted a possibility of arranging a call

15 from the U.S. Consulate or Embassy in Guatemala, counsel did

16 not request a continuance to attempt do so. Second, the IJ

17 did not rely on the absence of this testimony to question

18 Miranda Perez’s credibility, referencing it only in the

19 context of an alternative conclusion that Miranda Perez’s

20 claim was lacking in proof, mainly as to whether the

21 authorities would have been able or willing to control her

5 1 persecutor. See Ivanishvili v. U.S. Dep’t of Justice, 433

(2d Cir. 2006) (“[P]rivate acts may be

3 persecution if the government has proved unwilling to control

4 such actions.”). Third, as the BIA noted, her parents’

5 testimony would not have resolved the inconsistencies between

6 her affidavit and her testimony because they did not have

7 first-hand knowledge of the attacks or her interaction with

8 her doctor. See Garcia-Villeda,

.

9 Because the inconsistencies provide substantial evidence

10 for the adverse credibility determination, we find no basis

11 for remand because, even crediting her parents’ affidavits,

12 she was not credible as to the alleged abuse. See Li Hua Lin

13 v. U.S. Dep’t of Justice,

(2d Cir. 2006)

14 (holding that remand is not required when “reviewing panel is

15 confident that the agency would reach the same result upon a

16 reconsideration cleansed of errors” (footnote omitted)). To

17 the extent that Miranda Perez asserts that the agency ignored

18 a pharmacy receipt confirming medical treatment on February

19 25, the agency is not required to parse each piece of evidence

20 and the receipt does not resolve any inconsistencies. See

21 Xiao Ji Chen v. U.S. Dep’t of Justice,

, 336 n.17

6 1 (“[W]e presume that an IJ has taken into account all of the

2 evidence before him, unless the record compellingly suggests

3 otherwise.”).

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

7