20-4258 Boda v. Garland BIA Schoppert, IJ A206 562 606 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 3rd day of March, two thousand twenty-two. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 RAYMOND J LOHIER, JR., 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 FRANCOIS BODA, 14 Petitioner, 15 16 v. 20-4258 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 27 Attorney General; Shelley R. Goad, 28 Assistant Director; Monica G. 1 Antoun, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DISMISSED IN PART and DENIED IN PART.

9 Petitioner Francois Boda, a native and citizen of the

10 Central African Republic, seeks review of a December 9, 2020,

11 decision of the BIA affirming a November 1, 2018, decision of

12 an Immigration Judge (“IJ”) denying asylum, withholding of

13 removal, and relief under the Convention Against Torture

14 (“CAT”). In re Francois Boda, No. A206 562 606 (B.I.A. Dec.

15 9, 2020), aff’g No. A206 562 606 (Immig. Ct. N.Y. City Nov.

16 1, 2018). We assume the parties’ familiarity with the

17 underlying facts and procedural history.

18 We have reviewed the IJ’s decision as modified by the

19 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir. 2005). For the following reasons, we

21 dismiss the petition as to asylum and deny it as to

22 withholding of removal and CAT protection.

2 1 Our jurisdiction to review the agency’s findings

2 regarding the timeliness of an asylum application and the

3 circumstances excusing the untimeliness is limited to

4 constitutional claims or questions of law. See 8 U.S.C.

5 §§ 1158(a)(3), 1252(a)(2)(D). In the present case, we lack

6 jurisdiction to review the denial of asylum because Boda

7 challenges the agency’s factual determination that his 11-

8 month delay in filing after the overthrow of the government

9 in his home country that prompted his fear of return was

10 unreasonable. See Xiao Ji Chen v. U.S. Dep't of Just., 471

(2d Cir. 2006) (“[W]e remain deprived of

12 jurisdiction . . . when the petition for review essentially

13 disputes the correctness of an IJ's fact-finding or the wisdom

14 of his exercise of discretion.”); see also 8 U.S.C.

15 §§ 1158(a)(2)(B), (D), (3);

(a)(4)(ii),

16 (a)(5). Although Boda asserts the agency overlooked country

17 conditions evidence, he does not identify evidence the agency

18 failed to consider. See Xiao Ji Chen, 471 F.3d at 336 n.17

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

20 evidence before him, unless the record compellingly suggests

21 otherwise.”).

3 1 We deny the petition as to withholding of removal and

2 CAT protection. An applicant bears the burden of proving his

3 eligibility for relief with credible testimony and reasonably

4 available corroboration.

(b)(1)(B)(i),

5 (ii), 1231(b)(3)(C);

(c)(2). We find no

6 error in the agency’s conclusion that Boda failed to meet his

7 burden of proof.

8 “Considering the totality of the circumstances, and all

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

10 determination on the demeanor, candor, or responsiveness of

11 the applicant . . . , the consistency between the

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

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

14 consistency of such statements with other evidence of record

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

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

17 any other relevant factor.”

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

18 “We defer . . . to an IJ’s credibility determination

19 unless . . . it is plain that no reasonable fact-finder could

20 make such an adverse credibility ruling.” Xiu Xia Lin v.

4 1 Mukasey,

(2d Cir. 2008); accord Hong Fei

2 Gao v. Sessions,

(2d Cir. 2018).

3 We defer to the IJ’s conclusion that Boda’s demeanor

4 undermined his credibility given his vague testimony about

5 his work for the New York embassy of the Central African

6 Republic and his knowledge of the current government. See

7 Karaj v. Gonzales,

(2d Cir. 2006) (giving

8 “particular deference” to demeanor findings (internal

9 quotation marks omitted)). That finding, and the adverse

10 credibility determination as a whole, were bolstered by

11 inconsistencies regarding whether Boda lived at the embassy,

12 how he was paid, and whether he had siblings. See 8 U.S.C.

13 § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of Justice,

14

(2d Cir. 2006) (“We can be . . . more

15 confident in our review of observations about an applicant’s

16 demeanor where . . . they are supported by specific examples

17 of inconsistent testimony.”). Those findings provide

18 substantial evidence for the adverse credibility

19 determination. See Likai Gao v. Barr,

, 145 n.8

20 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude

21 an alien from showing that an IJ was compelled to find him

5 1 credible. Multiple inconsistencies would so preclude even

2 more forcefully.”).

3 Moreover, Boda did not rehabilitate his credibility with

4 reliable corroboration. See Biao Yang v. Gonzales,

268, 273 (2d Cir. 2007) (“An applicant’s failure to

6 corroborate his . . . testimony may bear on credibility,

7 because the absence of corroboration in general makes an

8 applicant unable to rehabilitate testimony that has already

9 been called into question.”). The agency reasonably afforded

10 minimal weight to the family letters, particularly given

11 Boda’s inconsistent statements about whether he had siblings.

12 See Y.C. v. Holder,

(2d Cir. 2013)

13 (holding that “[w]e generally defer to the agency’s

14 evaluation of the weight to be afforded an applicant’s

15 documentary evidence” and upholding BIA’s decision to afford

16 little weight to letter from applicant’s spouse); Matter of

17 H-L-H- & Z-Y-Z-,

(B.I.A. 2010)

18 (finding letters from relatives and friends did not provide

19 substantial support for claim where authors were “interested

20 witnesses . . . not subject to cross-examination”),

21 overruled on other grounds by Hui Lin Huang v. Holder, 677

6

(2d Cir. 2012). And the pay stub Boda submitted did

2 not confirm his employment with the embassy in the United

3 States.

4 Accordingly, absent credible testimony or reliable

5 corroboration, the agency did not err in concluding that Boda

6 could not meet his burden of proof. See 8 U.S.C.

7 §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); 8 C.F.R.

8 § 1208.16(c)(2). That determination is dispositive of

9 withholding of removal and CAT relief because both forms of

10 relief were based on the same discredited factual predicate.

11 See Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

12 For the foregoing reasons, the petition for review is

13 DISMISSED IN PART and DENIED IN PART. All pending motions

14 and applications are DENIED and stays VACATED.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court

7