21-6260 Castillo v. Garland BIA Douchy, IJ A208 537 031
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 6th day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 REENA RAGGI, 8 RAYMOND J. LOHIER, JR., 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 JUAN PABLO CASTILLO, 14 Petitioner, 15 16 v. 21-6260 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Hamdan Qudah, Esq., Paterson, NJ. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Russell J. E. Verby, Senior 3 Litigation Counsel; John D. Williams, Senior 4 Trial Attorney, Office of Immigration 5 Litigation, United States Department of 6 Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Juan Pablo Castillo, a native and citizen of Ecuador, seeks review
11 of an April 9, 2021 decision of the BIA affirming an October 30, 2018 decision of an
12 Immigration Judge (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture (“CAT”). In re Juan
14 Pablo Castillo, No. A208 537 031 (B.I.A. Apr. 9, 2021), aff’g No. A208 537 031
15 (Immigr. Ct. N.Y.C. Oct. 30, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the IJ’s decision as modified by the BIA—that is, without
18 considering grounds cited by the IJ for finding Castillo not credible on which the
19 BIA declined to rely. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d
20 Cir. 2005). We review the agency’s “legal conclusions de novo, and its factual
21 findings, including adverse credibility determinations, under the substantial 2 1 evidence standard.” Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (internal
2 quotation marks omitted). “[T]he administrative findings of fact are conclusive
3 unless any reasonable adjudicator would be compelled to conclude to the
4 contrary.” 8 U.S.C. § 1252(b)(4)(B).
5 In assessing credibility, an IJ must consider “the totality of the
6 circumstances,” including such factors as,
7 the demeanor, candor, or responsiveness of the applicant or witness, 8 the inherent plausibility of the applicant’s or witness’s account, the 9 consistency between the applicant’s or witness’s written and oral 10 statements (whenever made and whether or not under oath, and 11 considering the circumstances under which the statements were 12 made), the internal consistency of each such statement, the 13 consistency of such statements with other evidence in the record 14 (including the reports of the Department of State on country 15 conditions), and any inaccuracies or falsehoods in such statements, 16 without regard to whether an inconsistency, inaccuracy, or falsehood 17 goes to the heart of the applicant’s claim, or any other relevant factor.
18 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination
19 unless, from the totality of the circumstances, it is plain that no reasonable fact-
20 finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,
21 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
22 Cir. 2018). That is not this case. Substantial evidence supports the agency’s
3 1 determination that Castillo was not credible as to his claim that gang members
2 assaulted him three times because of his evangelical Christian proselytizing.
3 The BIA affirmed the adverse credibility determination based on three
4 inconsistencies in the record regarding, (1) whether Castillo was tied to a tree
5 during the third alleged assault, (2) how many gang members were involved in
6 that incident, and (3) whether gang members ever took him to a forest to attack
7 him. The inconsistencies are supported by the record.
8 First, in his written statement describing the third assault, Castillo asserted
9 that gang members held a gun to his head and poured gasoline on him, but he
10 escaped during a gunfight between the gang and the police. By contrast, the
11 record of his credible fear interview reflects that he stated that the gang members
12 tied him to a tree before pouring gasoline on him. At his hearing, Castillo initially
13 testified consistently with the written statement, i.e., he said that he was in the
14 middle of the street when gasoline was poured on him, and he was restrained only
15 by the threat posed by the gun. 1 When asked about the discrepancy with his
16 credible fear interview, he changed his testimony to conform with that account,
1Contrary to Castillo’s argument, his initial testimony during cross-examination did not leave open the possibility that he was also tied to a tree. See Cert. Admin. Rec. 161–62. 4 1 explaining that he had not remembered being tied to a tree. The agency was not
2 required to accept that explanation. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
3 2018) (“A petitioner must do more than offer a plausible explanation for his
4 inconsistent statements to secure relief; he must demonstrate that a reasonable
5 fact-finder would be compelled to credit his testimony.” (internal quotation marks
6 omitted)). Being tied to a tree is an important aspect of this assault that Castillo
7 would be expected to remember during his hearing (and mention in his written
8 statement), and it appears incompatible with Castillo’s testimony that he was in
9 the middle of the road when gasoline was poured on him and he was able to
10 escape during the alleged gunfight with the police.
11 Second, Castillo testified on direct and cross-examination that only two gang
12 members were present during this third assault. In his credible fear interview
13 and written statement, however, he asserted that three gang members were
14 present. Castillo’s explanation that he misunderstood a question on cross-
15 examination is not compelling because he also made the misstatement on direct
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21-6260 Castillo v. Garland BIA Douchy, IJ A208 537 031
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 6th day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 REENA RAGGI, 8 RAYMOND J. LOHIER, JR., 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 JUAN PABLO CASTILLO, 14 Petitioner, 15 16 v. 21-6260 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Hamdan Qudah, Esq., Paterson, NJ. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Russell J. E. Verby, Senior 3 Litigation Counsel; John D. Williams, Senior 4 Trial Attorney, Office of Immigration 5 Litigation, United States Department of 6 Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Juan Pablo Castillo, a native and citizen of Ecuador, seeks review
11 of an April 9, 2021 decision of the BIA affirming an October 30, 2018 decision of an
12 Immigration Judge (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture (“CAT”). In re Juan
14 Pablo Castillo, No. A208 537 031 (B.I.A. Apr. 9, 2021), aff’g No. A208 537 031
15 (Immigr. Ct. N.Y.C. Oct. 30, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the IJ’s decision as modified by the BIA—that is, without
18 considering grounds cited by the IJ for finding Castillo not credible on which the
19 BIA declined to rely. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d
20 Cir. 2005). We review the agency’s “legal conclusions de novo, and its factual
21 findings, including adverse credibility determinations, under the substantial 2 1 evidence standard.” Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (internal
2 quotation marks omitted). “[T]he administrative findings of fact are conclusive
3 unless any reasonable adjudicator would be compelled to conclude to the
4 contrary.” 8 U.S.C. § 1252(b)(4)(B).
5 In assessing credibility, an IJ must consider “the totality of the
6 circumstances,” including such factors as,
7 the demeanor, candor, or responsiveness of the applicant or witness, 8 the inherent plausibility of the applicant’s or witness’s account, the 9 consistency between the applicant’s or witness’s written and oral 10 statements (whenever made and whether or not under oath, and 11 considering the circumstances under which the statements were 12 made), the internal consistency of each such statement, the 13 consistency of such statements with other evidence in the record 14 (including the reports of the Department of State on country 15 conditions), and any inaccuracies or falsehoods in such statements, 16 without regard to whether an inconsistency, inaccuracy, or falsehood 17 goes to the heart of the applicant’s claim, or any other relevant factor.
18 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination
19 unless, from the totality of the circumstances, it is plain that no reasonable fact-
20 finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,
21 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
22 Cir. 2018). That is not this case. Substantial evidence supports the agency’s
3 1 determination that Castillo was not credible as to his claim that gang members
2 assaulted him three times because of his evangelical Christian proselytizing.
3 The BIA affirmed the adverse credibility determination based on three
4 inconsistencies in the record regarding, (1) whether Castillo was tied to a tree
5 during the third alleged assault, (2) how many gang members were involved in
6 that incident, and (3) whether gang members ever took him to a forest to attack
7 him. The inconsistencies are supported by the record.
8 First, in his written statement describing the third assault, Castillo asserted
9 that gang members held a gun to his head and poured gasoline on him, but he
10 escaped during a gunfight between the gang and the police. By contrast, the
11 record of his credible fear interview reflects that he stated that the gang members
12 tied him to a tree before pouring gasoline on him. At his hearing, Castillo initially
13 testified consistently with the written statement, i.e., he said that he was in the
14 middle of the street when gasoline was poured on him, and he was restrained only
15 by the threat posed by the gun. 1 When asked about the discrepancy with his
16 credible fear interview, he changed his testimony to conform with that account,
1Contrary to Castillo’s argument, his initial testimony during cross-examination did not leave open the possibility that he was also tied to a tree. See Cert. Admin. Rec. 161–62. 4 1 explaining that he had not remembered being tied to a tree. The agency was not
2 required to accept that explanation. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
3 2018) (“A petitioner must do more than offer a plausible explanation for his
4 inconsistent statements to secure relief; he must demonstrate that a reasonable
5 fact-finder would be compelled to credit his testimony.” (internal quotation marks
6 omitted)). Being tied to a tree is an important aspect of this assault that Castillo
7 would be expected to remember during his hearing (and mention in his written
8 statement), and it appears incompatible with Castillo’s testimony that he was in
9 the middle of the road when gasoline was poured on him and he was able to
10 escape during the alleged gunfight with the police.
11 Second, Castillo testified on direct and cross-examination that only two gang
12 members were present during this third assault. In his credible fear interview
13 and written statement, however, he asserted that three gang members were
14 present. Castillo’s explanation that he misunderstood a question on cross-
15 examination is not compelling because he also made the misstatement on direct
16 examination and the question referred to the only assault involving gasoline. See
17 id.
5 1 Third, the credible fear interview record reflects that Castillo stated that, in
2 June 2015, gang members harmed him for the second time by forcing him into a
3 vehicle and taking him to a forest, where they beat him. When the IJ asked
4 Castillo about that statement, he denied having been taken to a forest, and he said
5 he did not know why his credible fear interview record would indicate otherwise.
6 Castillo argues that the credible fear interview record is unreliable because
7 it reflects that he misunderstood the questions posed. We are not persuaded.
8 The agency may rely on a credible fear interview record if the interview was
9 “(1) conducted in a non-coercive and careful manner, and (2) appropriately
10 documented by the interviewing authorities.” Ming Zhang v. Holder, 585 F.3d 719,
11 725–26 (2d Cir. 2009) (internal quotation marks and citation omitted). That is the
12 case here: Castillo’s interview was conducted in his primary language through
13 an interpreter; his attorney was present (by telephone) during questioning; the
14 interviewer instructed Castillo about the purpose of the interview and that he
15 should say if he did not understand any questions; the interview was recorded in
16 a typewritten document setting forth questions and answers; the questions were
17 designed to elicit the basis for Castillo’s claim; and, at the close of the interview,
18 Castillo confirmed that he understood everything that had been asked. See Cert.
6 1 Admin. Rec. 323. While Castillo is correct that some of his answers were
2 nonresponsive, the interviewer asked clarifying follow-up questions, the agency
3 did not rely on those portions of the interview to question his credibility, and there
4 is no indication that Castillo misunderstood the questions related to the issues that
5 the agency did rely on.
6 Castillo’s complete lack of corroboration bolsters the agency’s adverse
7 credibility determination. “An applicant’s failure to corroborate his or her
8 testimony may bear on credibility, because the absence of corroboration in general
9 makes an applicant unable to rehabilitate testimony that has already been called
10 into question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Here, there
11 was no evidence, beyond Castillo’s own statements, that he was an evangelical
12 Christian or that he was ever assaulted. The only evidence Castillo offered
13 beyond his own statements was country conditions evidence that would not have
14 provided strong support for Castillo’s claims even if the agency had credited his
15 representations about his religious activities.
16 Contrary to Castillo’s argument, the agency was not required to identify
17 specific evidence and explain why it was reasonably available, as it would have
18 been if his testimony had been found credible, but uncorroborated. See Chuilu Liu
7 1 v. Holder, 575 F.3d 193, 198 n.5 (2d Cir. 2009) (“[C]redibility and corroboration are
2 distinct principles in this Circuit’s immigration jurisprudence. The critical
3 distinction is this: while a failure to corroborate can suffice, without more, to
4 support a finding that [a noncitizen] has not met his burden of proof, a failure to
5 corroborate cannot, without more, support an adverse credibility
6 determination.”); Wei Sun v. Sessions, 883 F.3d 23, 31 (2d Cir. 2018) (“[W]hen an IJ
7 determines that the applicant has failed to meet his burden of proof based on the
8 failure to provide corroborating evidence, the IJ should perform the following
9 analysis: (1) point to specific pieces of missing evidence and show that it was
10 reasonably available, (2) give the applicant an opportunity to explain the omission,
11 and (3) assess any explanation given.”). Moreover, the IJ did identify specific
12 evidence that was lacking: a letter from Castillo’s church in Ecuador, hospital
13 records, and letters from family members in the United States to whom Castillo
14 allegedly preached. The IJ considered Castillo’s explanations for these omissions,
15 which did not compel the conclusion that these records were unavailable. See
16 8 U.S.C. § 1252(b)(4) (“No court shall reverse a determination made by a trier of
17 fact with respect to the availability of corroborating evidence . . . unless the court
8 1 finds . . . that a reasonable trier of fact is compelled to conclude that such
2 corroborating evidence is unavailable.”).
3 Taken together, the inconsistencies and lack of corroboration provide
4 substantial evidence for the adverse credibility determination. See Likai Gao v.
5 Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might
6 preclude [a noncitizen] from showing that an IJ was compelled to find him
7 credible. Multiple inconsistencies would so preclude even more forcefully.”); Xiu
8 Xia Lin, 534 F.3d at 167; Biao Yang, 496 F.3d at 273. The adverse credibility
9 determination is dispositive of asylum, withholding of removal, and CAT relief
10 because all three forms of relief were based on the same facts. 2 See Paul v.
11 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
2 The BIA erred in finding that Castillo waived his CAT claim. The IJ relied on the adverse credibility determination to deny all relief, so Castillo necessarily challenged the denial of CAT protection by challenging the adverse credibility determination. But this error is harmless because substantial evidence supports the adverse credibility determination. Also, in any event, Castillo has waived this issue by failing to present any arguments to this court concerning his CAT claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n.7 (2d Cir. 2005) (deeming claim for which petitioner “devote[d] only a single conclusory sentence” “abandoned” on petition for review and declining to consider it). 9 1 For the foregoing reasons, the petition for review is DENIED. All pending
2 motions and applications are DENIED and stays are VACATED.
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court