22-6401 Urias-Bonilla v. Garland BIA Conroy, IJ A206 137 834

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 August, two thousand twenty-four.

PRESENT: JON O. NEWMAN, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________

MEDEA DADAY URIAS-BONILLA, Petitioner,

v. 22-6401 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Abdoul A. Konare, Konare Law, Frederick, MD.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Daniel E. Goldman, Senior Litigation Counsel; Todd J. Cochran, 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 Medea Daday Urias-Bonilla, a native and citizen of El Salvador,

seeks review of a July 13, 2022, decision of the BIA affirming a March 12, 2018,

decision of an Immigration Judge (“IJ”) denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Medea Daday Urias-Bonilla, No. A206 137 834 (B.I.A. July 13, 2022),

aff’g No. A206 137 834 (Immig. Ct. N.Y. City Mar. 12, 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. See Wangchuck v.

Dep’t of Homeland Sec.,

(2d Cir. 2006). We review the agency’s

legal conclusions de novo, and its “factual findings, including adverse credibility

2 findings, under the substantial evidence standard.” Hong Fei Gao v. Sessions,

(2d Cir. 2018). “[T]he administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary.”

(b)(4)(B).

“Considering the totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on . . . the consistency between

the applicant’s or witness’s written and oral statements (whenever made and

whether or not under oath, and considering the circumstances under which the

statements were made), the internal consistency of each such statement, the

consistency of such statements with other evidence of record . . . , and any

inaccuracies or falsehoods in such statements, without regard to whether an

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

or any other relevant factor.”

§ 1158(b)(1)(B)(iii). “We defer . . . 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 determination that Urias-

Bonilla was not credible as to her claim that gang members targeted her for

3 informing a reporter about gang activities and collusion between gangs and the

police.

First, the agency reasonably relied on Urias-Bonilla’s omissions from her

initial application and updated written statement. Urias-Bonilla’s 2014

application states that gangs “threatened” and “robbed” her and had killed her

friends (one because he did not have money for a drug dealer, and others for

unspecified reasons). Her 2018 updated written statement and hearing

testimony, however, identify the “primary reason” she fears returning to El

Salvador as gang retaliation for her work as a reporter’s informant. She alleged

in the later statements that gang members threatened her for several months by

telephone because of her work as an informant, and ultimately robbed and

“attacked” her on a bus. She subsequently testified to additional facts not

included in any written statement—that she recognized her attackers by their

tattoos, that the same gang members beat her nephew, that the telephonic threats

included demands for money, and that she had been followed twice.

The agency “may rely on any inconsistency or omission in making an

adverse credibility determination as long as the ‘totality of the circumstances’

establishes that an asylum applicant is not credible.” Xiu Xia Lin,

4 (quoting

(b)(1)(B)(iii)). We have cautioned that “in general

omissions are less probative of credibility than inconsistencies created by direct

contradictions in evidence and testimony.” Hong Fei Gao,

(quotation marks omitted). However, “the probative value of a witness’s prior

silence on particular facts depends on whether those facts are ones the witness

would reasonably have been expected to disclose.”

The agency reasonably relied on Urias-Bonilla’s omissions. The omission

in her original application of her work as an informant goes to the heart of her

claim, and she reasonably would have been expected to disclose that allegation

earlier. See Jian Liang v. Garland,

(2d Cir. 2021) (upholding

adverse credibility determination where petitioner omitted “critical information

that he would reasonably have been expected to disclose much earlier”).

Omissions from the updated written statement may provide additional support

for the adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 166–67

(finding no error in agency’s reliance on omission in application and petitioner’s

father’s letter that were not “directly material” and holding that “the cumulative

effect” of even “collateral or ancillary” discrepancies “may . . . be deemed

consequential”).

5 Contrary to Urias-Bonilla’s assertions, the agency considered her

explanation that she did not trust her lawyers or the authorities in the United

States. But the agency was not required to credit that explanation, particularly

given the instructions on the application to “provide a detailed and specific

account of the basis of [the] claim,” including “descriptions about each action or

event.” 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 that a reasonable fact-finder would be compelled to

credit his testimony.” (quotation marks omitted)). The same is true for Urias-

Bonilla’s explanations that “[she did not] know” why she omitted that she

recognized the attackers by their tattoos and that she “[did not] think [she] needed

to add” that she had been followed.

The adverse credibility determination is further bolstered by inconsistencies

and a lack of reliable corroboration. The IJ reasonably relied on inconsistencies

within Urias-Bonilla’s testimony about whether her attackers on the bus spoke to

and threatened her friends. See

(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

at 166–67 (upholding agency’s reliance on cumulative effect of minor

inconsistencies and omissions). And the IJ reasonably relied on the lack of

6 reliable corroboration. See Biao Yang v. Gonzales,

(2d Cir. 2007)

(“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.”). The

agency did not err in giving diminished weight to affidavits, as the declarants were

unavailable for cross-examination. See Likai Gao v. Barr,

(2d Cir.

2020) (holding that “the IJ acted within her discretion in according . . . little weight

[to letters]” in part because the declarants were unavailable for cross-

examination); Y.C. v. Holder,

(2d Cir. 2013) (“We generally defer

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

evidence.”).

Taken together, the omissions, inconsistencies, and lack of reliable

corroboration constitute substantial evidence for the adverse credibility

determination. See Xiu Xia Lin,

; Biao Yang,

. The

adverse credibility determination is dispositive because asylum, withholding of

removal, and CAT relief were all based on the same factual predicate. See Hong

Fei Gao,

. Absent a credible claim that she was an informant, Urias-

Bonilla’s country conditions evidence is insufficient to establish a CAT claim

7 because she had to show “that someone in [her] particular alleged circumstances is

more likely than not to be tortured.” Mu Xiang Lin v. U.S. Dep’t of Just.,

(2d Cir. 2005); see also Zelaya-Moreno v. Wilkinson,

(2d Cir.

2021) (holding that absent “particularized evidence” a petitioner’s “generalized

statements about the pervasiveness of gangs and gang violence” did not show

error in BIA’s conclusion regarding the likelihood of torture).

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

8