Aguilar Ordonez v. Bondi

• Court: Court of Appeals for the Second Circuit
• Decided: May 9, 2025
• Docket: 22-6517
• Status: Unpublished

Opinion

22-6517 Aguilar Ordonez v. Bondi BIA Ruehle, IJ A209 449 662

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 9th day of May, two thousand twenty- five.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, MYRNA PÉREZ, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

JOSE MIGUEL AGUILAR ORDONEZ, Petitioner,

v. 22-6517 NAC

PAMELA BONDI, UNITED STATES ATTORNEY GENERAL,*

*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela Bondi is automatically substituted for former Attorney General Merrick B. Garland as the Respondent. Respondent. _____________________________________

FOR PETITIONER: Samuel Iroegbu, Esq., Albany, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Brianne W. Cohen, Senior Litigation Counsel; Andrea N. Gevas, 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 Jose Miguel Aguilar Ordonez, a native and citizen of Guatemala,

seeks review of a September 30, 2022, decision of the BIA affirming an April 8,

2019, decision of an Immigration Judge (“IJ”) denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Jose Miguel Aguilar Ordonez, No. A209 449 662 (B.I.A. Sept. 30,

2022), aff’g No. A209 449 662 (Immig. Ct. Buffalo Apr. 8, 2019). 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., 448 F.3d 524, 528 (2d Cir. 2006). “We review de novo

2 questions of law and the application of law to fact,” and “[w]e review the agency’s

factual findings, including adverse credibility findings, under the substantial

evidence standard.” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

“[T]he administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B).

I. Asylum

An applicant for asylum must “demonstrate[] by clear and convincing

evidence that the application has been filed within 1 year after the date of . . .

arrival in the United States.” Id. § 1158(a)(2)(B). The failure to do so may be

excused where the applicant “demonstrates to the satisfaction of the Attorney

General . . . the existence of . . . extraordinary circumstances relating to the delay

in filing an application.” Id. § 1158(a)(2)(D). Aguilar Ordonez argues that

extraordinary circumstances excused his delay.

“The burden of proof is on the applicant to establish . . . that the

circumstances were not intentionally created by the alien through his or her own

action or inaction, that those circumstances were directly related to the alien’s

failure to file the application within the 1–year period, and that the delay was

3 reasonable under the circumstances.” 8 C.F.R. § 1208.4(a)(5). Extraordinary

circumstances “include but are not limited to . . . [s]erious illness or mental or

physical disability,” “[l]egal disability (e.g., the applicant was an unaccompanied

minor or suffered from a mental impairment),” “[i]neffective assistance of

counsel,” maintenance of a lawful status for a reasonable period, the applicant

filed on time but otherwise improperly and the application was returned, or “the

death or serious illness or incapacity” of counsel or family member. Id.

Our jurisdiction to review the timeliness determination or whether

extraordinary circumstances excuse the delay is limited to constitutional claims

and questions of law. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). A question of law

may arise where the agency applied the wrong legal standard, see Barco-Sandoval

v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2007), or where the agency “totally overlooked”

or “seriously mischaracterized” important facts, see Mendez v. Holder, 566 F.3d 316,

323 (2d Cir. 2009). And “the application of law to undisputed or established facts

is a ‘question of law’ within the meaning of § 1252(a)(2)(D).” Guerrero-Lasprilla v.

Barr, 589 U.S. 221, 228 (2020) (alteration adopted); see also Wilkinson v. Garland, 601

U.S. 209, 212, 216–17 (2024).

4 Aguilar Ordonez has not addressed jurisdiction. And to the extent he

raises questions of law, his arguments lack merit. He argues that he

demonstrated extraordinary circumstances excusing his delay because he was a

minor at time of entry (he was 20), he did not speak English, and he was unaware

he could apply for asylum. The agency explicitly considered and rejected these

arguments, i.e., it did not overlook any facts. See Mendez, 566 F.3d at 323.

Aguilar Ordonez does not cite legal authority for his positions and the

statute, regulations, and case law do not support his arguments. The asylum

statute defines a minor as someone younger than 18-years-old. See 8 U.S.C.

§ 1158(a)(2)(E); 6 U.S.C. § 279(g)(2)(B). A lack of English or awareness of asylum

are not identified in the regulation as examples of extraordinary circumstances, see

8 C.F.R. § 1208.4(a)(5), and lack of English fluency and legal knowledge are

common factors in immigration cases. Further, Aguilar Ordonez filed his

application 6 years after he turned 21, and he does not challenge the agency’s

conclusion that he did not apply “within a reasonable period.” Id. § 1208.4(a)(5);

Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any

claims not adequately presented in an appellant’s brief, and an appellant’s failure

to make legal or factual arguments constitutes abandonment.” (citation and

5 quotation marks omitted)).

II. Withholding of Removal and CAT Relief

“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, . . . 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.” 8 U.S.C. § 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, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.

Substantial evidence supports the adverse credibility determination given

omissions and inconsistencies that call into question the basis of Aguilar

Ordonez’s claim—that he suffered and feared persecution and torture because he

6 was Mayan and spoke Quiché—and a lack of corroboration to rehabilitate his

claim.

First, Aguilar Ordonez’s application omitted material details, such as his

native language, race, and his work and education history. These omissions

support the adverse credibility determination because his race and native

language were material to the protected ground at the heart of his claim and the

application form requires that information. Contrary to his claim that he is a

native Quiché speaker, his application listed Spanish as his native language.

Moreover, his application omitted any work history, but his claim relied in part on

his allegation that he sent money back to his father to pay off the would-be

persecutors. Although 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, 891 F.3d at 78 (citation and quotation

marks omitted), 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, 534 F.3d at 167

(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). “[T]he probative value of a witness’s prior

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

7 would reasonably have been expected to disclose.” Hong Fei Gao, 891 F.3d at 78.

The agency reasonably relied on the omissions about Aguliar Ordonez’s Mayan

race, his native language, and his employment history as that information is

material to his claim—whether he is of Mayan descent, whether his family was

targeted because of their race and language, and whether he was working here to

send money to his father. See Jian Liang v. Garland, 10 F.4th 106, 115 (2d Cir. 2021)

(upholding adverse credibility determination where petitioner omitted “critical

information” that petitioner “would reasonably have been expected to disclose

much earlier”).

His additional omission of his education history, while minor, lends further

support to the adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167

(“[E]ven where an IJ relies on discrepancies or lacunae that, if taken separately,

concern matters collateral or ancillary to the claim, the cumulative effect may

nevertheless be deemed consequential by the fact-finder.” (citation and quotation

marks omitted)). The agency was not required to credit Aguilar Ordonez’s

explanations for the omissions, as his testimony was unclear and not responsive.

See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more

than offer a plausible explanation for his inconsistent statements to secure relief;

8 he must demonstrate that a reasonable fact-finder would be compelled to credit his

testimony.” (citation and quotation marks omitted)); see also 8 U.S.C.

§ 1158(b)(1)(B)(iii) (an IJ “may base a credibility determination on the demeanor,

candor, or responsiveness of the applicant or witness”).

Finally, Aguilar Ordonez’s failure to corroborate his testimony provides

further support for the adverse credibility determination, and Aguilar Ordonez

does not challenge the BIA’s conclusion that he waived review of the corroboration

finding on appeal. See Debique, 58 F.4th at 684. “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, 496 F.3d 268, 273

(2d Cir. 2007). He did not provide any documentary evidence or witnesses, and

thus failed to corroborate that his father owns land in Guatemala and that he

(Aguilar Ordonez) had been sending money to avoid seizure of the land.

In sum, the omissions, inconsistencies, and lack of corroboration provide

substantial evidence for the adverse credibility determination. See Xiu Xia Lin,

534 F.3d at 167; Biao Yang, 496 F.3d at 273. That determination is dispositive of

withholding of removal and CAT relief because both forms of relief were based on

9 the same facts. See Hong Fei Gao, 891 F.3d at 76.

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