18-1172 Buestan Rojas v. Garland BIA A206 869 546

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.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 8th day of November, two thousand 4 twenty-two. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNY CHIN, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 GLADYS YOLANDA BUESTAN ROJAS, 14 Petitioner, 15 16 v. 18-1172 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 1 FOR PETITIONER: Glen L. Formica, Formica, Williams, P.C., New 2 Haven, CT. 3 4 FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney 5 General; Brianne Whelan Cohen, Senior 6 Litigation Counsel; Deitz P. Lefort, Trial 7 Attorney, Office of Immigration Litigation, 8 United States Department of Justice, 9 Washington, DC. 10 11 UPON DUE CONSIDERATION of this petition for review of a Board of

12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

13 DECREED that the petition for review is DENIED.

14 Petitioner Gladys Yolanda Buestan Rojas, a native and citizen of Ecuador,

15 seeks review of an April 18, 2018 decision of the BIA, denying her motion to

16 reconsider the denial of her petition for asylum, withholding of removal, and relief

17 under the Convention Against Torture. In re Gladys Yolanda Buestan Rojas,

18 No. A206 869 546 (B.I.A. Apr. 18, 2018). We assume the parties’ familiarity with

19 the underlying facts and procedural history.

20 We review the BIA’s denial of reconsideration for abuse of discretion. See

21 Jin Ming Liu v. Gonzales,

(2d Cir. 2006). A motion to reconsider

22 “shall specify the errors of law or fact in the previous order.” 8 U.S.C.

2 1 § 1229a(c)(6)(C); see also

(b)(1); Ke Zhen Zhao v. U.S. Dep’t of Justice,

2

, 90 (2d Cir. 2001).

3 As an initial matter, the BIA excused Buestan Rojas’s failure to exhaust her

4 challenge to the underlying adverse-credibility determination when it thoroughly

5 addressed that determination in both its dismissal of Buestan Rojas’s appeal from

6 the IJ and its denial of her motion to reconsider. See Xian Tuan Ye v. Dep’t of

7 Homeland Sec.,

, 296–97 (2d Cir. 2006) (excusing a petitioner’s failure to

8 raise an issue before the BIA where the BIA considered the claim). We therefore

9 have jurisdiction to consider Buestan Rojas’ petition as to the agency’s adverse-

10 credibility finding. See

11 Nevertheless, the BIA did not abuse its discretion in declining to reverse its

12 prior decision, which was not based on an error of law or fact. See 8 U.S.C.

13 § 1229a(c)(6)(C). Specifically, the agency’s adverse-credibility determination was

14 supported by Buestan Rojas’s inconsistent statements regarding – among other

15 things – whether she had ever been in the United States before, whether she feared

16 harm or persecution if returned to Ecuador, whether she was apprehended and

17 removed to Mexico when she first entered the United States in 2001, and whether

18 she left Ecuador in 2014 without her husband’s knowledge or assistance.

3 1 Although Buestan Rojas was provided an opportunity to explain these

2 inconsistencies during her removal hearing, she failed to do so. These

3 inconsistencies therefore supported the agency’s adverse-credibility

4 determination. See

(b)(1)(B)(iii); Likai Gao v. Barr,

, 145

5 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from

6 showing that an IJ was compelled to find him credible. Multiple inconsistencies

7 would so preclude even more forcefully.”). Thus, the BIA did not abuse its

8 discretion in denying Buestan Rojas’s motion to reconsider. See 8 U.S.C.

9 § 1229a(c)(6)(C);

(b)(1); Ke Zhen Zhao, 265 F.3d at 90.

10 For the foregoing reasons, the petition for review is DENIED. All pending

11 motions and applications are DENIED and stays VACATED.

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

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