20-3839 Moscoso-Mancia v. Garland BIA Poczter, IJ A209 283 928
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 21st day of July, two thousand twenty-two. 5 6 PRESENT: 7 ROBERT D. SACK, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 ANA MARIA MOSCOSO-MANCIA, 14 Petitioner, 15 16 v. 20-3839 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael E. Rosado, Laurel, MD. 24 25 FOR RESPONDENT: Brian M. Boynton, Acting 26 Assistant Attorney General; 27 Benjamin Mark Moss, Senior 28 Litigation Counsel; Sara J. 1 Bayram, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 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 Ana Maria Moscoso-Mancia, a native and citizen
11 of El Salvador, seeks review of an October 9, 2020, decision
12 of the BIA affirming a June 25, 2018, decision of an
13 Immigration Judge (“IJ”) denying Moscoso-Mancia’s application
14 for asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Ana Maria Moscoso-
16 Mancia, No. A209 283 928 (B.I.A. Oct. 9, 2020), aff’g No.
17 A209 283 928 (Immig. Ct. N.Y. City June 25, 2018). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history.
20 Under the circumstances, we have reviewed the IJ’s
21 decision as modified and supplemented by the BIA. See Xue
22 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
23 Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
24 2005). We review competency and adverse credibility findings
25 for substantial evidence, treating “the administrative
2 1 findings of fact . . . [as] conclusive unless any reasonable
2 adjudicator would be compelled to conclude to the contrary.”
3 8 U.S.C. § 1252(b)(4)(B); see Hong Fei Gao v. Sessions, 891
4 F.3d 67, 76 (2d Cir. 2018); Diop v. Lynch, 807 F.3d 70, 75
5 (4th Cir. 2015). We find no error in the agency’s decision
6 not to evaluate Moscoso-Mancia’s competency or its
7 determination that she was not credible as to her claim of
8 persecution on account of her membership in the social group
9 of Salvadoran women who are victims of domestic violence and
10 unable to leave their abusive partners.
11 A. Competency
12 “[A]n alien is presumed to be competent to participate
13 in removal proceedings” and “[a]bsent indicia of mental
14 incompetency, an Immigration Judge is under no obligation to
15 analyze an alien’s competency.” Matter of M-A-M-, 25 I. &
16 N. Dec. 474, 477 (B.I.A. 2011). “Indicia of incompetency
17 include . . . the inability to understand and respond to
18 questions, the inability to stay on topic, . . . a high level
19 of distraction[,] . . . [or] evidence of mental illness . .
20 . .” Id. at 479–80. “[T]he test for determining whether an
21 alien is competent to participate in immigration proceedings
22 is whether he or she has a rational and factual understanding
3 1 of the nature and object of the proceedings, can consult with
2 the attorney or representative if there is one, and has a
3 reasonable opportunity to examine and present evidence and
4 cross-examine witnesses.” Id. at 484.
5 Moscoso-Mancia’s counsel did not raise any concerns as
6 to her competency and her psychological evaluation did not
7 provide any basis to conclude that she had difficulty
8 understanding the nature of her removal proceedings or
9 communicating with others. Accordingly, there were no
10 indicia of incompetency to prompt inquiry into her
11 competence. See id. (“[I]f there are no indicia of
12 incompetency in an alien’s case, no further inquiry regarding
13 competency is required.”). Further, the record does not show
14 that Moscoso-Mancia had difficulty understanding proceedings
15 or presenting her evidence. Contrary to her contention that
16 her testimony revealed that she had difficulty remembering
17 certain events, the record shows that she answered every
18 question responsively and expressed difficulty with recall
19 only when confronted with prior inconsistent statements.
20 Accordingly, given that Moscoso-Mancia knew the nature of her
21 proceedings, communicated effectively, and testified
22 responsively, the agency did not err in declining to evaluate
4 1 her competency further. See id. at 479–84.
2 B. 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 consistency between the applicant’s
6 or witness’s written and oral statements (whenever made and
7 whether or not under oath, and considering the circumstances
8 under which the statements were made), the internal
9 consistency of each such statement . . . , and any
10 inaccuracies or falsehoods in such statements, without regard
11 to whether an inconsistency, inaccuracy, or falsehood goes to
12 the heart of the applicant’s claim, or any other relevant
13 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
14 an IJ’s credibility determination unless, from the totality
15 of the circumstances, it is plain that no reasonable fact-
16 finder could make such an adverse credibility ruling.” Xiu
17 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
18 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports
19 the agency’s determination that Moscoso-Mancia was not
20 credible as to her claim of domestic violence.
21 As an initial matter, the agency did not err in relying
22 on the record of Moscoso-Mancia’s credible fear interview in
5 1 assessing credibility because the interview record bears the
2 hallmarks of reliability: it was conducted with an
3 interpreter, it was memorialized in a typewritten question-
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20-3839 Moscoso-Mancia v. Garland BIA Poczter, IJ A209 283 928
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 21st day of July, two thousand twenty-two. 5 6 PRESENT: 7 ROBERT D. SACK, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 ANA MARIA MOSCOSO-MANCIA, 14 Petitioner, 15 16 v. 20-3839 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael E. Rosado, Laurel, MD. 24 25 FOR RESPONDENT: Brian M. Boynton, Acting 26 Assistant Attorney General; 27 Benjamin Mark Moss, Senior 28 Litigation Counsel; Sara J. 1 Bayram, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 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 Ana Maria Moscoso-Mancia, a native and citizen
11 of El Salvador, seeks review of an October 9, 2020, decision
12 of the BIA affirming a June 25, 2018, decision of an
13 Immigration Judge (“IJ”) denying Moscoso-Mancia’s application
14 for asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Ana Maria Moscoso-
16 Mancia, No. A209 283 928 (B.I.A. Oct. 9, 2020), aff’g No.
17 A209 283 928 (Immig. Ct. N.Y. City June 25, 2018). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history.
20 Under the circumstances, we have reviewed the IJ’s
21 decision as modified and supplemented by the BIA. See Xue
22 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
23 Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
24 2005). We review competency and adverse credibility findings
25 for substantial evidence, treating “the administrative
2 1 findings of fact . . . [as] conclusive unless any reasonable
2 adjudicator would be compelled to conclude to the contrary.”
3 8 U.S.C. § 1252(b)(4)(B); see Hong Fei Gao v. Sessions, 891
4 F.3d 67, 76 (2d Cir. 2018); Diop v. Lynch, 807 F.3d 70, 75
5 (4th Cir. 2015). We find no error in the agency’s decision
6 not to evaluate Moscoso-Mancia’s competency or its
7 determination that she was not credible as to her claim of
8 persecution on account of her membership in the social group
9 of Salvadoran women who are victims of domestic violence and
10 unable to leave their abusive partners.
11 A. Competency
12 “[A]n alien is presumed to be competent to participate
13 in removal proceedings” and “[a]bsent indicia of mental
14 incompetency, an Immigration Judge is under no obligation to
15 analyze an alien’s competency.” Matter of M-A-M-, 25 I. &
16 N. Dec. 474, 477 (B.I.A. 2011). “Indicia of incompetency
17 include . . . the inability to understand and respond to
18 questions, the inability to stay on topic, . . . a high level
19 of distraction[,] . . . [or] evidence of mental illness . .
20 . .” Id. at 479–80. “[T]he test for determining whether an
21 alien is competent to participate in immigration proceedings
22 is whether he or she has a rational and factual understanding
3 1 of the nature and object of the proceedings, can consult with
2 the attorney or representative if there is one, and has a
3 reasonable opportunity to examine and present evidence and
4 cross-examine witnesses.” Id. at 484.
5 Moscoso-Mancia’s counsel did not raise any concerns as
6 to her competency and her psychological evaluation did not
7 provide any basis to conclude that she had difficulty
8 understanding the nature of her removal proceedings or
9 communicating with others. Accordingly, there were no
10 indicia of incompetency to prompt inquiry into her
11 competence. See id. (“[I]f there are no indicia of
12 incompetency in an alien’s case, no further inquiry regarding
13 competency is required.”). Further, the record does not show
14 that Moscoso-Mancia had difficulty understanding proceedings
15 or presenting her evidence. Contrary to her contention that
16 her testimony revealed that she had difficulty remembering
17 certain events, the record shows that she answered every
18 question responsively and expressed difficulty with recall
19 only when confronted with prior inconsistent statements.
20 Accordingly, given that Moscoso-Mancia knew the nature of her
21 proceedings, communicated effectively, and testified
22 responsively, the agency did not err in declining to evaluate
4 1 her competency further. See id. at 479–84.
2 B. 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 consistency between the applicant’s
6 or witness’s written and oral statements (whenever made and
7 whether or not under oath, and considering the circumstances
8 under which the statements were made), the internal
9 consistency of each such statement . . . , and any
10 inaccuracies or falsehoods in such statements, without regard
11 to whether an inconsistency, inaccuracy, or falsehood goes to
12 the heart of the applicant’s claim, or any other relevant
13 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
14 an IJ’s credibility determination unless, from the totality
15 of the circumstances, it is plain that no reasonable fact-
16 finder could make such an adverse credibility ruling.” Xiu
17 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
18 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports
19 the agency’s determination that Moscoso-Mancia was not
20 credible as to her claim of domestic violence.
21 As an initial matter, the agency did not err in relying
22 on the record of Moscoso-Mancia’s credible fear interview in
5 1 assessing credibility because the interview record bears the
2 hallmarks of reliability: it was conducted with an
3 interpreter, it was memorialized in a typewritten question-
4 and-answer format, the questions posed were designed to
5 elicit details of an asylum claim, and her responses indicated
6 that she understood the questions posed. See Ming Zhang v.
7 Holder, 585 F.3d 715, 724–25 (2d Cir. 2009) (requiring
8 scrutiny of credible fear interviews but finding record
9 reliable where it was typewritten, demonstrated that the
10 applicant understood the questions, reflected questions about
11 past harm or fear of future harm, and was conducted with an
12 interpreter). Contrary to Moscoso-Mancia’s contention, the
13 interview record reflects that the interviewer reviewed the
14 summary of her statement with her and that she indicated that
15 the summary was correct.
16 The agency reasonably relied on inconsistencies between
17 Moscoso-Mancia’s statements at her credible fear interview
18 and her testimony before the IJ regarding whether she was
19 legally married to her abuser, whether she told her parents
20 about the abuse, and how she escaped from the house she shared
21 with her abuser. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai
22 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a
6 1 single inconsistency might preclude an alien from showing
2 that an IJ was compelled to find him credible. Multiple
3 inconsistencies would so preclude even more forcefully.”).
4 Moscoso-Mancia did not compellingly explain these
5 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
6 Cir. 2005) (“A petitioner must do more than offer a plausible
7 explanation for his inconsistent statements to secure relief;
8 he must demonstrate that a reasonable fact-finder would be
9 compelled to credit his testimony.” (quotation marks
10 omitted)); see also Ming Zhang, 585 F.3d at 722 (noting that
11 an applicant’s assertion that she was nervous or afraid does
12 not overcome a record of a sworn statement that has been
13 deemed sufficiently reliable for purposes of a credibility
14 determination). The agency also reasonably relied on her
15 failure to rehabilitate these inconsistent statements with
16 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
17 268, 273 (2d Cir. 2007) (“An applicant’s failure to
18 corroborate his or her testimony may bear on credibility,
19 because the absence of corroboration in general makes an
20 applicant unable to rehabilitate testimony that has already
21 been called into question.”).
22 Given the inconsistencies and lack of corroboration, the
7 1 agency’s adverse credibility determination is supported by
2 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);
3 Likai Gao, 968 F.3d at 145 n.8. That determination is
4 dispositive of asylum, withholding of removal, and CAT relief
5 because all three claims were based on the same factual
6 predicate.* See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
7 Cir. 2006). Accordingly, we do not reach the agency’s
8 alternative finding that Moscoso-Mancia failed to satisfy her
9 burden of showing that Salvadoran officials were unable or
10 unwilling to protect her. See INS v. Bagamasbad, 429 U.S.
11 24, 25 (1976) (“As a general rule courts and agencies are not
12 required to make findings on issues the decision of which is
13 unnecessary to the results they reach.”). Further, as the
14 Government argues, the IJ’s denial of a continuance is not
15 before us because the BIA found it unnecessary to determine
16 whether the proposed social group was cognizable given the
17 dispositive adverse credibility determination. See Xue Hong
18 Yang, 426 F.3d at 522; Lin Zhong v. U.S. Dep’t of Justice,
* The BIA and Government incorrectly conclude that Moscoso- Mancia waived and thus failed to exhaust her claims for withholding of removal and CAT relief. The IJ denied all relief on credibility grounds; therefore, any challenge to the adverse credibility determination necessarily included a challenge to the denial of those forms of relief.
8 1 480 F.3d 104, 122 (2d Cir. 2007) (“[W]e may consider only
2 those issues that formed the basis for [the BIA’s]
3 decision.”).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court 10