20-1845 Lalvay-Lalvay v. Garland BIA Segal, IJ A206 838 242 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 22nd day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 PIERRE N. LEVAL, 9 JOSEPH F. BIANCO, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 ANDRES LALVAY-LALVAY, 15 Petitioner, 16 17 v. 20-1845 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Michael Borja, Jackson Heights, 25 NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Stephen J. 1 Flynn, Assistant Director; Lynda 2 A. Do, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Andres Lalvay-Lalvay (“Lalvay”), a native and
11 citizen of Ecuador, seeks review of a May 27, 2020, decision
12 of the BIA denying his motion to remand and affirming a June
13 8, 2018, decision of an Immigration Judge (“IJ”) denying his
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Lalvay-
16 Lalvay, No. A206 838 242 (B.I.A. May 27, 2020), aff’g No.
17 A206 838 242 (Immig. Ct. N.Y. City June 8, 2018). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history.
20 We have reviewed the IJ’s decision as supplemented by
21 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
22 Cir. 2005). We review the agency’s “legal conclusions de
23 novo, and its factual findings, including adverse credibility
24 determinations, under the substantial evidence standard.” 2 1 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (quotation
2 marks omitted). “[T]he administrative findings of fact are
3 conclusive unless any reasonable adjudicator would be
4 compelled to conclude to the contrary.” 8 U.S.C.
5 § 1252(b)(4)(B). We review the BIA’s denial of a motion to
6 remand for abuse of discretion. Li Yong Cao v. U.S. Dep’t
7 of Justice, 421 F.3d 149, 157 (2d Cir. 2005). The agency
8 reasonably concluded that Lalvay was not credible as to his
9 allegations of past persecution on account of either his
10 political opinion or sexual orientation and that the country
11 conditions evidence did not establish a pattern or practice
12 of persecution of gay men.
13 “Considering the totality of the circumstances, and all
14 relevant factors, a trier of fact may base a credibility
15 determination on . . . the consistency between the applicant’s
16 or witness’s written and oral statements (whenever made and
17 whether or not under oath, and considering the circumstances
18 under which the statements were made), the internal
19 consistency of each such statement . . . , and any
20 inaccuracies or falsehoods in such statements, without regard
21 to whether an inconsistency, inaccuracy, or falsehood goes to
3 1 the heart of the applicant’s claim, or any other relevant
2 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
3 an IJ’s credibility determination unless, from the totality
4 of the circumstances, it is plain that no reasonable fact-
5 finder could make such an adverse credibility ruling.” Xiu
6 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
7 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
8 Lalvay alleged that he was harmed by members of the
9 Movimiento Popular Democratico(“MPD”) party on account of his
10 support for his cousin’s mayoral campaign for the opposing
11 Pachakutik Party, and that he had been bullied and harassed
12 based on his sexual orientation. He has never disputed that
13 the agency accurately described the record and that, absent
14 some explanation beyond that presented at his hearing, the
15 inconsistencies that the agency identified in the record
16 provide substantial evidence for its adverse credibility
17 determination. These issues are thus waived. 1 See Norton v.
1 We disagree with the Government’s assessment that Lalvay waived any challenges to the adverse credibility determination, and with the Government’s and the BIA’s assessment that Lalvay waived withholding of removal and CAT relief. Lalvay preserved arguments that his psychological conditions explained the inconsistencies, and he was not required to separately argue his withholding and CAT claims 4 1 Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
2 sufficiently argued in the briefs are considered waived and
3 normally will not be addressed on appeal.”). In any event,
4 substantial evidence supports the adverse credibility
5 determination.
6 The agency reasonably relied on inconsistencies between
7 Lalvay’s testimony and other evidence. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). Lalvay’s oral and written statements
9 that his cousin lost the election to the MDP and did not hold
10 any office contradicted letters from his mother, the cousin,
11 and an attorney asserting that his cousin won a Vice Mayor
12 seat by a large margin. The agency was not required to credit
13 Lalvay’s explanation that he did not know the outcome because
14 Lalvay initially identified the wrong outcome and his
15 cousin’s letter asserted that Lalvay had a leadership role in
16 the campaign. The Court defers to an agency’s credibility
17 determination “unless, from the totality of the
18 circumstances, it is plain that no reasonable fact-finder
19 could make such an adverse credibility ruling.” Xiu Xia Lin
20 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008; accord Hong
because the IJ denied all forms of relief on the same grounds. 5 1 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
2 (Lalvay’s hearing testimony also contradicted his statements
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20-1845 Lalvay-Lalvay v. Garland BIA Segal, IJ A206 838 242 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 22nd day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 PIERRE N. LEVAL, 9 JOSEPH F. BIANCO, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 ANDRES LALVAY-LALVAY, 15 Petitioner, 16 17 v. 20-1845 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Michael Borja, Jackson Heights, 25 NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Stephen J. 1 Flynn, Assistant Director; Lynda 2 A. Do, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Andres Lalvay-Lalvay (“Lalvay”), a native and
11 citizen of Ecuador, seeks review of a May 27, 2020, decision
12 of the BIA denying his motion to remand and affirming a June
13 8, 2018, decision of an Immigration Judge (“IJ”) denying his
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Lalvay-
16 Lalvay, No. A206 838 242 (B.I.A. May 27, 2020), aff’g No.
17 A206 838 242 (Immig. Ct. N.Y. City June 8, 2018). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history.
20 We have reviewed the IJ’s decision as supplemented by
21 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
22 Cir. 2005). We review the agency’s “legal conclusions de
23 novo, and its factual findings, including adverse credibility
24 determinations, under the substantial evidence standard.” 2 1 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (quotation
2 marks omitted). “[T]he administrative findings of fact are
3 conclusive unless any reasonable adjudicator would be
4 compelled to conclude to the contrary.” 8 U.S.C.
5 § 1252(b)(4)(B). We review the BIA’s denial of a motion to
6 remand for abuse of discretion. Li Yong Cao v. U.S. Dep’t
7 of Justice, 421 F.3d 149, 157 (2d Cir. 2005). The agency
8 reasonably concluded that Lalvay was not credible as to his
9 allegations of past persecution on account of either his
10 political opinion or sexual orientation and that the country
11 conditions evidence did not establish a pattern or practice
12 of persecution of gay men.
13 “Considering the totality of the circumstances, and all
14 relevant factors, a trier of fact may base a credibility
15 determination on . . . the consistency between the applicant’s
16 or witness’s written and oral statements (whenever made and
17 whether or not under oath, and considering the circumstances
18 under which the statements were made), the internal
19 consistency of each such statement . . . , and any
20 inaccuracies or falsehoods in such statements, without regard
21 to whether an inconsistency, inaccuracy, or falsehood goes to
3 1 the heart of the applicant’s claim, or any other relevant
2 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
3 an IJ’s credibility determination unless, from the totality
4 of the circumstances, it is plain that no reasonable fact-
5 finder could make such an adverse credibility ruling.” Xiu
6 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
7 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
8 Lalvay alleged that he was harmed by members of the
9 Movimiento Popular Democratico(“MPD”) party on account of his
10 support for his cousin’s mayoral campaign for the opposing
11 Pachakutik Party, and that he had been bullied and harassed
12 based on his sexual orientation. He has never disputed that
13 the agency accurately described the record and that, absent
14 some explanation beyond that presented at his hearing, the
15 inconsistencies that the agency identified in the record
16 provide substantial evidence for its adverse credibility
17 determination. These issues are thus waived. 1 See Norton v.
1 We disagree with the Government’s assessment that Lalvay waived any challenges to the adverse credibility determination, and with the Government’s and the BIA’s assessment that Lalvay waived withholding of removal and CAT relief. Lalvay preserved arguments that his psychological conditions explained the inconsistencies, and he was not required to separately argue his withholding and CAT claims 4 1 Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
2 sufficiently argued in the briefs are considered waived and
3 normally will not be addressed on appeal.”). In any event,
4 substantial evidence supports the adverse credibility
5 determination.
6 The agency reasonably relied on inconsistencies between
7 Lalvay’s testimony and other evidence. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). Lalvay’s oral and written statements
9 that his cousin lost the election to the MDP and did not hold
10 any office contradicted letters from his mother, the cousin,
11 and an attorney asserting that his cousin won a Vice Mayor
12 seat by a large margin. The agency was not required to credit
13 Lalvay’s explanation that he did not know the outcome because
14 Lalvay initially identified the wrong outcome and his
15 cousin’s letter asserted that Lalvay had a leadership role in
16 the campaign. The Court defers to an agency’s credibility
17 determination “unless, from the totality of the
18 circumstances, it is plain that no reasonable fact-finder
19 could make such an adverse credibility ruling.” Xiu Xia Lin
20 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008; accord Hong
because the IJ denied all forms of relief on the same grounds. 5 1 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
2 (Lalvay’s hearing testimony also contradicted his statements
3 at his credible fear interview as to when he began supporting
4 the Pachakutik Party, when MPD members chased him through a
5 marketplace, and whether he ever saw two men again after they
6 sexually harassed him.
7 These inconsistencies provide substantial support for
8 the adverse credibility determination because they call into
9 question Lalvay’s political activities and his only
10 allegation of physical abuse based on his sexual orientation.
11 See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295
12 (2d Cir. 2006) (upholding adverse credibility determination
13 based on “a material inconsistency in an aspect of [the
14 petitioner’s] story that served as an example of the very
15 persecution from which he sought asylum”); see also Likai Gao
16 v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a
17 single inconsistency might preclude an alien from showing
18 that an IJ was compelled to find him credible. Multiple
19 inconsistencies would so preclude even more forcefully.”).
20 The BIA did not abuse its discretion in denying Lalvay’s
21 motion to remand for further consideration of credibility
6 1 based on new evidence because the party moving for reopening
2 has “‘heavy burden’ of demonstrating that the proffered new
3 evidence would likely alter the result in h[is] case.” Jian
4 Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)
5 (quoting INS v. Abudu, 485 U.S. 94, 110 (2d Cir. 1988)). The
6 psychologist’s report diagnosed Lalvay with major depressive
7 disorder and post-traumatic stress disorder and opined that
8 he had an impaired ability to communicate clearly and report
9 an accurate timeline or dates of his experiences. The BIA
10 reasonably concluded that Lalvay had not carried his burden
11 to show that this evidence was likely to alter the outcome,
12 because he did not explain how his symptoms caused the
13 discrepancies between his written declaration and other
14 documentary evidence and the inconsistencies related to
15 whether certain events occurred, not just to the timeline of
16 events.
17 Because the agency found Lalvay credible as to his sexual
18 orientation, Lalvay could still establish eligibility for
19 relief by establishing an “objectively reasonable” fear of
20 future persecution on that basis. Ramsameachire v. Ashcroft,
21 357 F.3d 169, 178 (2d Cir. 2004). Absent credible evidence
7 1 of his own particular circumstance, however, he had to show
2 a “pattern or practice” of persecution of gay men. 8 C.F.R.
3 § 1208.13(b)(2)(iii); Jian Liang v. Garland, 10 F.4th 106,
4 117 (2d Cir. 2021); In re A-M-, 23 I. & N. Dec. 737, 741
5 (B.I.A. 2005) (defining a pattern or practice of persecution
6 as the “systemic or pervasive” persecution of a group). He
7 did not meet that burden.
8 The record reflects that Ecuadorian law prohibits hate
9 crimes and discrimination based on sexual orientation,
10 although such discrimination persists. It describes a
11 significant cultural divide between older Ecuadorians, and a
12 more accepting younger generation that came of age following
13 the 1997 legalization of homosexuality and other significant
14 legal changes for gay Ecuadorians. This record does not
15 compel the conclusion that discrimination against gay
16 Ecuadorians, even if widespread, is so pervasive and extreme
17 as to amount to persecution. Cf. In re A-M-, 23 I. & N. Dec.
18 at 741–42 (finding no pattern or practice where violence was
19 at hands of private actors and country conditions evidence
20 referred to “instances of discrimination and harassment”
21 (quotation marks omitted)).
8 1 The record also reflects that physical and sexual abuse
2 of gay Ecuadorians occurs in “conversion therapy” clinics.
3 However, such clinics are illegal, and Ecuador’s former
4 health minister oversaw the closure of more than 100 of them
5 between 2012 and 2015. Those enforcement efforts demonstrate
6 that such abuses would not be inflicted by the Ecuadorian
7 government or by persons that the government is unable or
8 unwilling to control, as necessary to establish persecution.
9 See Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006).
10 Further, the record indicates that victims are typically
11 forced into these illegal clinics by relatives. Without
12 credible evidence regarding Lalvay’s particular
13 circumstances, and with no evidence regarding the prevalence
14 of such conduct among Ecuadorian families, the record does
15 not compel the conclusion that Lalvay has a reasonable fear
16 of this type of abuse.
17 In sum, Lalvay did not meet his burden for asylum because
18 he did not present credible evidence that he suffered past
19 harm or was at risk of being singled out for future harm, and
20 he did not establish that there is a pattern or practice of
21 persecution of gay men in Ecuador. See 8 U.S.C.
9 1 § 1158(b)(1)(B); 8 C.F.R. § 1208.13(b)(1), (2). Because
2 Lalvay failed to meet his burden for asylum, he “necessarily”
3 failed to meet the higher standards for withholding of removal
4 and CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119–20
5 (2d Cir. 2010).
6 For the foregoing reasons, the petition for review is
7 DENIED. All pending motions and applications are DENIED and
8 stays VACATED.
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court