19-2649 Bolivar-Sinchi v. Garland BIA Christensen, IJ A206 419 548 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 15th day of February, two thousand twenty- two.

PRESENT: JOSÉ A. CABRANES, SUSAN L. CARNEY, MICHAEL H. PARK, Circuit Judges. _____________________________________

MARIO BOLIVAR-SINCHI, Petitioner,

v. 19-2649 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: H. Raymond Fasano, Youman, Madeo & Fasano, LLP, New York, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Jessica A. Dawgert, Senior Litigation Counsel; Jacob A. Bashyrov, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 Mario Bolivar-Sinchi, a native and citizen of

Ecuador, seeks review of a July 31, 2019 decision of the BIA

affirming a January 25, 2018 decision of an Immigration Judge

(“IJ”) denying asylum, withholding of removal, and protection

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

Bolivar-Sinchi, No. A 206 419 548 (B.I.A. July 31, 2019),

aff’g No. A 206 419 548 (Immig. Ct. N.Y. City Jan. 25, 2018).

We assume the parties’ familiarity with the underlying facts

and procedural history.

We have considered both the IJ’s and the BIA’s opinions

“for the sake of completeness.” Wangchuck v. Dep’t of

Homeland Security,

(2d Cir. 2006). The

applicable standards of review are well established. See 8

(b)(4)(B); Hong Fei Gao v. Sessions,

(2d Cir. 2018) (reviewing adverse credibility

determination for substantial evidence). The IJ may,

“[c]onsidering the totality of the circumstances,” base a

credibility finding on inconsistencies in an applicant’s

statements or between his statements and other evidence,

“without regard to whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s claim.”

(b)(1)(B)(iii). “We defer . . . to an IJ’s

adverse credibility determination unless, from the totality

of the circumstances, it is plain that no reasonable fact-

finder could make such an adverse credibility ruling.” Xiu

Xia Lin v. Mukasey,

(2d Cir. 2008); accord

Hong Fei Gao,

. Upon review, we conclude that

substantial evidence supports the agency’s adverse

credibility determination.

The agency reasonably relied on inconsistencies between

Bolivar-Sinchi’s testimony and statements made by him during

his credible fear interview. When discrepancies arise from

an applicant’s statements in a credible fear interview, we

closely examine the interview record to ensure that it

3 represents a sufficiently accurate record of the applicant’s

statements to merit consideration in determining credibility.

See Ming Zhang v. Holder,

(2d Cir. 2009).

The record of Bolivar-Sinchi’s interview contains the

following indicia of reliability: (1) it includes a list of

questions and responses; (2) the interviewer posed questions

to elicit an asylum claim; (3) Bolivar-Sinchi did not appear

reluctant to reveal information; and (4) his responses

suggested that he understood the interpreter.

.

Further, a comparison of the interview record and Bolivar-

Sinchi’s testimony reveals the inconsistencies identified by

the IJ.

To begin, Bolivar-Sinchi testified that he was not a

formal member of the Patriotic Society Party (“PSP”), but he

stated at the interview that he was a member of PSP and that

he joined in October 2013 because they gave him a job. The

IJ was not required to credit his explanation that he meant

the party might give him a job if it won. See Majidi v.

Gonzales,

(2d Cir. 2005) (“A petitioner must

do more than offer a plausible explanation for his

inconsistent statements to secure relief; he must demonstrate

4 that a reasonable fact-finder would be compelled to credit

his testimony.” (internal quotation marks omitted) (emphasis

in original). Bolivar-Sinchi also testified that he was at

work hanging up posters outside on the date of the October

2013 attack, but he stated at his credible fear interview

that he was attacked on his way to work.

The IJ also reasonably relied on inconsistencies between

Bolivar-Sinchi’s testimony and his affidavit. Bolivar-

Sinchi testified that his political activities were limited

to hanging posters and talking to people in the community to

gain support for the PSP. But in his affidavit he asserted

that he helped the candidates set up the areas where they

were going to give speeches. The IJ reasonably rejected his

explanation that his lawyer may not have understood him,

particularly given his confirmation that his attorney had

reviewed the statement with him, and the statement was true

and correct. See Majidi,

.

More crucially here, Bolivar-Sinchi testified that he

was hit and kicked during a November 2013 attack, resulting

in a laceration to his head. In his affidavit, however, he

reported that he was threatened at gunpoint in the November

5 2013 encounter; he did not mention any physical attack or

injury.

The IJ also found that Bolivar-Sinchi’s testimony was

inconsistent regarding the details of the October 2013

attack. It is true, as Bolivar-Sinchi points out, that the

testimony could be viewed as inconsistent, but the

purportedly inconsistent portions may simply have been a

result of confusion over what was asked. But we defer to the

IJ’s assessment that the assertions were in fact

inconsistent. See Siewe v. Gonzales,

(2d Cir. 2007) (“Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be

clearly erroneous . . . . [and] a reviewing court

must defer to that choice so long as the deductions are not

illogical or implausible.” (internal citations and quotation

marks omitted)). Although this particular inconsistency may

not alone provide strong support for the agency’s adverse

credibility determination, that determination is supported by

substantial evidence given the “cumulative effect” of the

inconsistencies reviewed above. Hong Fei Gao,

(internal quotation marks omitted).

6 The adverse credibility determination that we sustain is

dispositive of Bolivar-Sinchi’s claims for, withholding of

removal and CAT relief as well as asylum because they all

rest on the same factual predicate. See Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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