20-1844 Martinez Fajardo v. Garland BIA Christensen, IJ A209 218 784/785 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 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 16th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 DENNIS JACOBS, 9 PIERRE N. LEVAL, 10 RAYMOND J. LOHIER, JR., 11 Circuit Judges. 12 _____________________________________ 13 14 ADA CLARIBEL MARTINEZ FAJARDO, 15 OSCAR OSMIN POLANCO-AGUILAR, 16 Petitioners, 17 18 v. 20-1844 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONERS: Gisela Chavez-Garcia, Esq., New 27 York, NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Claire L. 3 Workman, Senior Litigation 4 Counsel; John B. Holt, Trial 5 Attorney, Office of Immigration 6 Litigation, United States 7 Department of Justice, Washington, 8 DC.

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Petitioners Ada Claribel Martinez Fajardo and Oscar Osmin

14 Polanco-Aguilar, natives and citizens of El Salvador, seek

15 review of a May 19, 2020 decision of the BIA affirming a July

16 11, 2018 decision of an Immigration Judge (“IJ”) denying their

17 applications for asylum, withholding of removal, and relief

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

19 Claribel Martinez Fajardo, Oscar Osmin Polanco-Aguilar, No.

20 A 209 218 784/785 (B.I.A. May 19, 2020), aff’g No. A 209 218

21 784/785 (Immig. Ct. N.Y. City July 11, 2018). We assume the

22 parties’ familiarity with the underlying facts and procedural

23 history.

24 We have reviewed both the IJ’s and the BIA’s opinions

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

26 Homeland Sec.,

(2d Cir. 2006). We review 2 1 adverse credibility determinations for substantial evidence,

2 see Hong Fei Gao v. Sessions,

(2d Cir. 2018),

3 and treat the agency’s findings of fact as “conclusive unless

4 any reasonable adjudicator would be compelled to conclude to

5 the contrary,”

(b)(4)(B).

6 “Considering the totality of the circumstances, and all

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

8 determination on . . . the consistency between the

9 applicant’s or witness’s written and oral statements

10 (whenever made and whether or not under oath, and considering

11 the circumstances under which the statements were

12 made), . . . the consistency of such statements with other

13 evidence of record . . . , and any inaccuracies or falsehoods

14 in such statements, without regard to whether an

15 inconsistency, inaccuracy, or falsehood goes to the heart of

16 the applicant’s claim, or any other relevant factor.” 8

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

18 credibility determination unless, from the totality of the

19 circumstances, it is plain that no reasonable fact-finder

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

21 v. Mukasey,

(2d Cir. 2008).

22 Here, substantial evidence supports the agency’s adverse

3 1 credibility determination. First, the agency reasonably

2 relied on inconsistencies between Petitioners’ testimony and

3 Martinez Fajardo’s credible fear interview. See

4 § 1158(b)(1)(B)(iii). Petitioners alleged that Martinez

5 Fajardo witnessed a gang murder and that, as a result, the

6 gang members threatened them, sexually assaulted Martinez

7 Fajardo, and beat Polanco-Aguilar. But Martinez Fajardo made

8 inconsistent statements as to whether she saw or only heard

9 the shooting, whether the gang members shot or both shot and

10 stabbed the victims, and where she was when she witnessed the

11 murders. The agency did not err in relying on inconsistent

12 statements from her credible fear interview because the

13 interview record bears the necessary “hallmarks of

14 reliability”: the interview was conducted through a Spanish

15 interpreter, Martinez Fajardo did not indicate that she had

16 difficulty understanding the interpreter, she told the

17 interviewing officer why she was afraid to go to El Salvador,

18 and the interview was memorialized in a typewritten document

19 that listed the questions and responses. See Ming Zhang v.

20 Holder,

(2d Cir. 2009). The agency was not

21 required to credit her explanation that she forgot to mention

22 some details at the hearing. See Majidi v. Gonzales, 430

4

(2d Cir. 2005).

2 Second, the IJ reasonably relied on a discrepancy between

3 Petitioners’ testimony and applications. Although they

4 testified that the gang members assaulted Polanco-Aguilar at

5 work, they did not mention that assault in their applications

6 or written statements. The agency was not compelled to

7 credit Petitioners’ explanation that Polanco-Aguilar was

8 nervous and reluctant to think about the beating because he

9 prepared the written statement well after his arrival and the

10 beating was the only harm he suffered personally. Id.; see

11 also Hong Fei Gao, 891 F.3d at 78–79 (“[I]n assessing the

12 probative value of the omission of certain facts, an IJ should

13 consider whether those facts are ones that a credible

14 petitioner would reasonably have been expected to disclose

15 under the relevant circumstances.”).

16 Third, the agency reasonably relied on multiple minor

17 discrepancies about where Martinez Fajardo was when the

18 murders took place, what Petitioners did with their car when

19 they left El Salvador, and who found a threatening note. See

20 Xiu Xia Lin,

(“[E]ven where an IJ relies on

21 discrepancies or lacunae that, if taken separately, concern

22 matters collateral or ancillary to the claim, the cumulative

5 1 effect may nevertheless be deemed consequential by the fact-

2 finder.”) (quotation marks omitted).

3 Given the multiple inconsistencies and the omissions of

4 Polanco-Aguilar’s only alleged harm, substantial evidence

5 supports the agency’s adverse credibility determination. See

6 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

; see also

7 Likai Gao v. Barr,

, 145 n.8 (2d Cir. 2020)

8 (“[E]ven a single inconsistency might preclude an alien from

9 showing that an IJ was compelled to find him credible.

10 Multiple inconsistencies would so preclude even more

11 forcefully.”). The adverse credibility determination is

12 dispositive of asylum, withholding of removal, and CAT relief

13 because all three claims were based on the same factual

14 predicate. See Paul v. Gonzales,

, 156–57 (2d

15 Cir. 2006).

16 For the foregoing reasons, the petition for review is

17 DENIED. All pending motions and applications are DENIED and

18 stays VACATED.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk

6