19-1211 Contreras-Gonzalez v. Barr BIA Kolbe, IJ A216 473 512 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 TO 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 22nd day of December, two thousand twenty. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 SUSAN L. CARNEY, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 ARGENIS CONTRERAS-GONZALEZ, 14 Petitioner, 15 16 v. 19-1211 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Marisol Conde-Hernandez, Law 24 Office of Eric M. Mark, Newark, 25 NJ. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; 1 Anthony P. Nicastro, Assistant 2 Director; Ilana J. Snyder, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Argenis Contreras-Gonzalez, a native and
12 citizen of the Dominican Republic, seeks review of a April 8,
13 2019 decision of the BIA affirming a October 24, 2018 decision
14 of an Immigration Judge (“IJ”) denying Contreras-Gonzalez’s
15 application for asylum, withholding of removal, and relief
16 under the Convention Against Torture (“CAT”). In re Argenis
17 Contreras-Gonzalez, No. A 216 473 512 (B.I.A. Apr. 8, 2019),
18 aff’g No. A 216 473 512 (Immig. Ct. N.Y. City Oct. 24, 2018).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history in this case.
21 We have reviewed the IJ’s decision as supplemented and
22 modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
23 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
24 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The standards
2 1 of review are well-established. See 8 U.S.C.
2 § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
3 2013).
4 The agency reasonably concluded that Contreras-Gonzalez
5 was barred from asylum and withholding of removal. An alien
6 is ineligible for these forms of relief if “there are serious
7 reasons for believing that the alien has committed a serious
8 nonpolitical crime outside the United States prior to the
9 arrival of the alien in the United States.” 8 U.S.C.
10 § 1158(b)(2)(A)(iii); see also id. § 1231(b)(3)(B)(iii).
11 “The serious reasons to believe standard is the equivalent of
12 probable cause,” and may be satisfied by the applicant’s own
13 testimony. Guo Qi Wang v. Holder, 583 F.3d 86, 90–91 (2d
14 Cir. 2009) (internal quotation marks omitted). Where the
15 evidence indicates that a mandatory ground for denial of
16 asylum or withholding of removal, including commission of a
17 serious nonpolitical crime, may apply, the applicant “shall
18 have the burden of proving by a preponderance of the evidence
19 that such grounds do not apply.” 8 C.F.R. §§ 1208.16(d)(2),
20 1240.8(d).
3 1 The record presented serious reasons to believe that
2 Contreras-Gonzalez had committed a serious nonpolitical
3 crime. As reflected in an Interpol Red Notice submitted by
4 the government, a judge in the Dominican Republic has issued
5 an arrest warrant for Contreras-Gonzalez based on his
6 involvement in a murder. Contreras-Gonzalez admitted in
7 proceedings before the IJ that he was at the scene of the
8 murder. The Interpol notice also reflected that Contreras-
9 Gonzalez was under investigation for fraud, bribery, and
10 corruption and he admitted to knowing of the corruption and
11 bribery and attending meetings where the corruption and
12 payment of bribes were discussed. Given this evidence, the
13 burden shifted to Contreras-Gonzalez to show that the
14 serious-nonpolitical-crime bar did not apply. Since his only
15 contrary evidence was his own testimony, which the IJ found
16 incredible, the agency reasonably concluded he had not met
17 his burden. See id.
18 The serious-nonpolitical-crime bar does not preclude CAT
19 relief, but the agency’s determination that the CAT claim
20 failed on credibility grounds is supported by substantial
21 evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
4 1 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (applying substantial
2 evidence standard to adverse credibility determination).
3 “Considering the totality of the circumstances, and all
4 relevant factors, a trier of fact may base a credibility
5 determination on the . . . inherent plausibility of the
6 applicant’s . . . account . . . .” 8 U.S.C.
7 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
8 determination unless . . . it is plain that no reasonable
9 fact-finder could make such an adverse credibility ruling.”
10 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see
11 also Hong Fei Gao, 891 F.3d at 76.
12 The agency reasonably found implausible Contreras-
13 Gonzalez’s claim that he was a whistleblower. “It is well
14 settled that, in assessing the credibility of an . . .
15 applicant’s testimony, an IJ is entitled to consider whether
16 the applicant’s story is inherently implausible.” Wensheng
17 Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007). An IJ’s
18 finding that an applicant’s claim is inherently implausible
19 is supported by substantial evidence if “the reasons for [the
20 IJ’s] incredulity are evident.” Id. at 67. While “bald”
21 speculation is an impermissible basis for an adverse
5 1 credibility finding, “[t]he speculation that inheres in
2 inference is not ‘bald’ if the inference is made available to
3 the factfinder by record facts, or even a single fact, viewed
4 in the light of common sense and ordinary experience.” Siewe
5 v. Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007).
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19-1211 Contreras-Gonzalez v. Barr BIA Kolbe, IJ A216 473 512 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 TO 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 22nd day of December, two thousand twenty. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 SUSAN L. CARNEY, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 ARGENIS CONTRERAS-GONZALEZ, 14 Petitioner, 15 16 v. 19-1211 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Marisol Conde-Hernandez, Law 24 Office of Eric M. Mark, Newark, 25 NJ. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; 1 Anthony P. Nicastro, Assistant 2 Director; Ilana J. Snyder, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Argenis Contreras-Gonzalez, a native and
12 citizen of the Dominican Republic, seeks review of a April 8,
13 2019 decision of the BIA affirming a October 24, 2018 decision
14 of an Immigration Judge (“IJ”) denying Contreras-Gonzalez’s
15 application for asylum, withholding of removal, and relief
16 under the Convention Against Torture (“CAT”). In re Argenis
17 Contreras-Gonzalez, No. A 216 473 512 (B.I.A. Apr. 8, 2019),
18 aff’g No. A 216 473 512 (Immig. Ct. N.Y. City Oct. 24, 2018).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history in this case.
21 We have reviewed the IJ’s decision as supplemented and
22 modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
23 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
24 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The standards
2 1 of review are well-established. See 8 U.S.C.
2 § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
3 2013).
4 The agency reasonably concluded that Contreras-Gonzalez
5 was barred from asylum and withholding of removal. An alien
6 is ineligible for these forms of relief if “there are serious
7 reasons for believing that the alien has committed a serious
8 nonpolitical crime outside the United States prior to the
9 arrival of the alien in the United States.” 8 U.S.C.
10 § 1158(b)(2)(A)(iii); see also id. § 1231(b)(3)(B)(iii).
11 “The serious reasons to believe standard is the equivalent of
12 probable cause,” and may be satisfied by the applicant’s own
13 testimony. Guo Qi Wang v. Holder, 583 F.3d 86, 90–91 (2d
14 Cir. 2009) (internal quotation marks omitted). Where the
15 evidence indicates that a mandatory ground for denial of
16 asylum or withholding of removal, including commission of a
17 serious nonpolitical crime, may apply, the applicant “shall
18 have the burden of proving by a preponderance of the evidence
19 that such grounds do not apply.” 8 C.F.R. §§ 1208.16(d)(2),
20 1240.8(d).
3 1 The record presented serious reasons to believe that
2 Contreras-Gonzalez had committed a serious nonpolitical
3 crime. As reflected in an Interpol Red Notice submitted by
4 the government, a judge in the Dominican Republic has issued
5 an arrest warrant for Contreras-Gonzalez based on his
6 involvement in a murder. Contreras-Gonzalez admitted in
7 proceedings before the IJ that he was at the scene of the
8 murder. The Interpol notice also reflected that Contreras-
9 Gonzalez was under investigation for fraud, bribery, and
10 corruption and he admitted to knowing of the corruption and
11 bribery and attending meetings where the corruption and
12 payment of bribes were discussed. Given this evidence, the
13 burden shifted to Contreras-Gonzalez to show that the
14 serious-nonpolitical-crime bar did not apply. Since his only
15 contrary evidence was his own testimony, which the IJ found
16 incredible, the agency reasonably concluded he had not met
17 his burden. See id.
18 The serious-nonpolitical-crime bar does not preclude CAT
19 relief, but the agency’s determination that the CAT claim
20 failed on credibility grounds is supported by substantial
21 evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
4 1 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (applying substantial
2 evidence standard to adverse credibility determination).
3 “Considering the totality of the circumstances, and all
4 relevant factors, a trier of fact may base a credibility
5 determination on the . . . inherent plausibility of the
6 applicant’s . . . account . . . .” 8 U.S.C.
7 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
8 determination unless . . . it is plain that no reasonable
9 fact-finder could make such an adverse credibility ruling.”
10 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see
11 also Hong Fei Gao, 891 F.3d at 76.
12 The agency reasonably found implausible Contreras-
13 Gonzalez’s claim that he was a whistleblower. “It is well
14 settled that, in assessing the credibility of an . . .
15 applicant’s testimony, an IJ is entitled to consider whether
16 the applicant’s story is inherently implausible.” Wensheng
17 Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007). An IJ’s
18 finding that an applicant’s claim is inherently implausible
19 is supported by substantial evidence if “the reasons for [the
20 IJ’s] incredulity are evident.” Id. at 67. While “bald”
21 speculation is an impermissible basis for an adverse
5 1 credibility finding, “[t]he speculation that inheres in
2 inference is not ‘bald’ if the inference is made available to
3 the factfinder by record facts, or even a single fact, viewed
4 in the light of common sense and ordinary experience.” Siewe
5 v. Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007).
6 The record here reflects sufficient grounds for the
7 implausibility findings and thus for the adverse credibility
8 determination. The IJ gave Contreras-Gonzalez an opportunity
9 to explain why, once in the United States, he delayed finding
10 a lawyer to represent his interests in the Dominican Republic
11 and why he spoke to a journalist only after he was taken into
12 immigration custody. Despite his claim that he was a
13 whistleblower, he was unable to identify any previous
14 attempts made by him to contact authorities or the news media
15 or to justify the six-month delay other than to say generally
16 he did not have time or money to hire a lawyer and was afraid
17 of the consequences if he did.
18 The IJ also reasonably relied on the implausibility of
19 both Contreras-Gonzalez’s account of his involvement in the
20 murder and his detailed knowledge of the criminal activity
21 despite his alleged lack of personal involvement. Contreras-
6 1 Gonzalez testified that after he reported financial
2 irregularities to his immediate supervisor, he was promoted
3 and included in meetings discussing that criminal activity
4 and the payment of bribes to cover it up. The agency’s
5 finding that this account of events was implausible is
6 reasonable: if Contreras-Gonzalez was not involved in the
7 corruption and bribery scheme, it is unlikely that his
8 supervisor would promote him and give him even greater access
9 to the individuals and discussions that would leave them
10 exposed to criminal charges. See Wensheng Yan, 509 F.3d at
11 67; Siewe, 480 F.3d at 169. Finally, the IJ reasonably found
12 it implausible that Contreras-Gonzalez was not involved with
13 the murder, yet he was present at the scene and his truck was
14 used by the killers. After the murder, Contreras-Gonzalez
15 asked for his truck back and received it without objection
16 despite the possibility that it contained evidence of the
17 crime. In light of these implausibility findings,
18 substantial evidence supports the agency’s conclusion that
19 Contreras-Gonzalez was not credible. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F. 3d 148, 157
21 (2d Cir. 2006).
7 1 Finally, we reject Contreras-Gonzalez’s due process
2 claims. He has not identified what documents the IJ declined
3 to credit or explained why those documents would change the
4 outcome of his case. See Garcia-Villeda v. Mukasey, 531 F.3d
5 141, 149 (2d Cir. 2008) (requiring showing of prejudice to
6 state a due process claim). He had notice of the Interpol
7 notice and was familiar with the Government’s late-filed
8 impeachment evidence. See Ali v. Mukasey, 529 F.3d 478, 481
9 n.3 (2d Cir. 2008) (suggesting that evidence admitted for
10 impeachment value need not be filed in advance of the
11 hearing). Accordingly, Contreras-Gonzalez has not shown that
12 he was denied a “full and fair opportunity” to present his
13 case as required to show a due process violation. See Burger
14 v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court