20-2737 Valle Anaya v. Garland BIA Mulligan, IJ A093 394 086 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 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 20th day of July, two thousand twenty-two.

PRESENT: ROSEMARY S. POOLER, RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

JAVIER ALFREDO VALLE ANAYA, Petitioner,

v. 20-2737 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Yerman, New York, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Alison M. Igoe, Senior Counsel for National Security; Drew C. Brinkman, Senior Counsel for National Security, 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 Javier Alfredo Valle Anaya, a native and

citizen of Colombia, seeks review of a July 22, 2020, decision

of the BIA affirming an October 6, 2019, decision of an

Immigration Judge (“IJ”) denying his application for deferral

of removal under the Convention Against Torture (“CAT”). In

re Javier Alfredo Valle Anaya, No. A 093 394 086 (B.I.A. Jul.

22, 2020), aff’g No. A 093 394 086 (Immig. Ct. N.Y. City Oct.

6, 2019). We assume the parties’ familiarity with the

underlying facts and procedural history.

Under the circumstances, we review the IJ’s decision as

supplemented by the BIA. See Yan Chen v. Gonzales,

(2d Cir. 2005) (“Where the BIA adopts the decision

of the IJ and merely supplements the IJ’s decision, however,

we review the decision of the IJ as supplemented by the

BIA.”). The applicable standards of review are well

2 established. See

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

Sessions,

(2d Cir. 2018) (reviewing the

adverse credibility determination under a substantial

evidence standard).

I. Adverse Credibility

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on the demeanor, candor, or responsiveness of

the applicant or witness” and inconsistencies within and

between an applicant’s statements and other evidence,

“without regard to whether an inconsistency, inaccuracy, or

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

other relevant factor.”

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

Court “defer[s] to an IJ’s 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,

. Substantial

evidence supports the agency’s mixed credibility finding,

i.e., that Valle Anaya was not credible as to his

collaboration with a paramilitary group, his role in the

3 murder of a professor, or the danger he faced if returned to

Colombia.

The agency reasonably relied on three inconsistencies.

See

(b)(1)(B)(ii). First, Valle Anaya

testified that he feared his wife and children would be

kidnapped or killed if returned to Colombia, but also admitted

that they had visited Colombia multiple times without

incident since coming to the United States. Although

voluntary “return trips alone are insufficient to establish

[a] lack of credibility,” they “may be relevant to credibility

in the exercise of an IJ’s informed discretion.” Kone v.

Holder,

(2d Cir. 2010). Here, the IJ did

not rely solely on the voluntary trips to determine

credibility, and did not clearly err in concluding that

multiple, recent trips by Valle Anaya’s family—none of whom

were harmed—rendered his claim less credible.

Second, Valle Anaya testified that he had never

associated with paramilitaries in Colombia, but claimed in

his application that paramilitary members had warned him

about assassins sent to kill him in 2006. Valle Anaya was

unable to explain or resolve this discrepancy. Third, the

4 IJ concluded that Valle Anaya was not credible because

documentary evidence contradicted his claim that he did not

fabricate evidence against the professor. The evidence

included Valle Anaya’s 2017 Colombian conviction, the

Colombian attorney general’s report recommending his

indictment, and media reports, all of which agreed that Valle

Anaya had fabricated the evidence to tie the professor to

FARC. Contrary to Valle Anaya’s claim that the IJ should not

have relied on this evidence due to it being hearsay or

derived from a judgment entered in absentia, an IJ is

permitted to base a credibility finding on “any other relevant

factor” in the record, and is not limited in what those

factors might be.

(b)(1)(B)(iii). Further,

hearsay evidence is admissible in removal proceedings, and

Valle Anaya does not offer any argument that the media reports

are unreliable. See Zhen Nan Lin v. U.S. Dep’t of Justice,

(2d Cir. 2006); Matter of Stapleton,

, 470 (BIA 1975). And although Valle Anaya

declined to be personally present for his trial, he was

represented by counsel who made arguments on his behalf.

Finally, the agency reasonably concluded that Valle

5 Anaya’s corroborating evidence did not otherwise satisfy his

burden of proof. See

(b)(1)(B)(ii) (“The

testimony . . . may be sufficient to sustain the applicant’s

burden without corroboration, but only if the applicant

satisfies the trier of fact that the applicant’s testimony is

credible . . . [and] persuasive . . . . In determining

whether the applicant has met the . . . burden, the trier of

fact may weigh the credible testimony along with other

evidence of record.”). “An applicant’s failure to

corroborate his or her testimony may bear on credibility,

because the absence of corroboration in general makes an

applicant unable to rehabilitate testimony that has already

been called into question.” Biao Yang v. Gonzales,

(2d Cir. 2007). This Court “generally defer[s] to

the agency’s evaluation of the weight to be afforded an

applicant’s documentary evidence.” Y.C. v. Holder,

(2d Cir. 2013). Here, Valle Anaya provided letters

from his wife and son, none of whom testified, which the IJ

was not required to credit.

(upholding

BIA’s decision to afford little weight to letter from

applicant’s spouse in China); Matter of H–L–H & Z–Y–Z–, 25 I.

6 & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished

evidentiary weight to letters from “relatives and friends,”

because they were from interested witnesses not subject to

cross-examination), rev’d on other grounds by Hui Lin Huang

v. Holder,

(2d Cir. 2012). Nor did these letters

resolve the contradictions in Valle Anaya’s testimony on

which the credibility determination was made. See Y.C.,

.

II. CAT and Other Claims

Valle Anaya did not challenge the IJ’s findings on

removability or waiver of removability on appeal to the BIA,

rendering those issues unexhausted. Lin Zhong v. U.S. Dep’t

of Justice,

(2d Cir. 2007) (“Judicially-

imposed doctrines of issue exhaustion . . . will usually mean

that issues not raised to the [Board] will not be examined by

the reviewing court.”). Valle Anaya argues that he impliedly

challenged the waiver issue by challenging the IJ’s

credibility finding, because the waiver issue “is rooted in

the issue of [Valle Anaya’s] credibility.” Pet. Br. at 13.

But Valle Anaya challenged the credibility finding only in

the context of the CAT claim, with no mention of waiver of

7 removability. The issue is therefore unexhausted and will

not be addressed here. Lin Zhong,

.

Valle Anaya’s only exhausted claim is deferral of removal

under the CAT, a mandatory form of relief that requires the

applicant to show that he would more likely than not be

tortured in the proposed country of removal.

(c), 1208.17; Khouzam v. Ashcroft,

(2d Cir. 2004). Not all harm rises to the level of

torture; rather, it is an “‘extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel, inhuman

or degrading treatment or punishment that do not amount to

torture.’” San Chung Jo v. Gonzales,

(2d

Cir. 2006) (quoting

(a)(2)). Torture also

requires that “government officials know of or remain

willfully blind to an act and thereafter breach their legal

responsibility to prevent it.” Khouzam,

.

Substantial evidence supports the agency’s denial of

deferral of removal on the merits because Valle Anaya had not

shown he was likely to be tortured. Valle Anaya did not

allege past torture.

(c)(3) (agency

considers past torture). Instead, he claimed that he feared

8 retaliatory torture from FARC and other paramilitaries he

investigated while serving in DAS, due to threatening calls

and letters he and his wife received from September to

December 2006. But aside from Valle Anaya’s own statements,

he offers nothing to show that the threats were made by FARC

or any other paramilitary. See Jian Xing Huang v. U.S. INS,

(2d Cir. 2005) (“In the absence of solid

support in the record . . . fear is speculative at best.”).

Valle Anaya did not show that he received further threats

post-2006. He claims that his attorney in Colombia had been

sent threatening letters more recently, but did not submit

those letters to the IJ. Further, although Valle Anaya

claims that FARC and similar groups remain a threat in

Colombia, country conditions evidence instead indicates that

the paramilitaries lack the same power they did when Valle

Anaya was last in the country.

Finally, the agency reasonably concluded that Valle Anaya

did not show government acquiescence. Khouzam,

. Valle Anaya acknowledged in his testimony that the

Colombian government has prosecuted members of FARC and other

paramilitary groups. He insists that the Colombian

9 government is corrupt, but corruption is not equivalent to

government acquiescence to torture. See

(a) (acquiescence occurs when an official, before

the torture occurs, is aware of the torture and thereafter

“breach[es] his or her legal responsibility to intervene to

prevent” it). In short, given the lack of “particularized

evidence” suggesting torture is likely, the agency did not

err in denying the deferral claim. Mu Xiang Lin v. U.S.

Dep’t of Justice,

, 159–60 (2d Cir. 2005); Jian

Xing Huang,

.

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

10