20-2737 Valle Anaya v. Garland BIA Mulligan, IJ A093 394 086 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 20th day of July, two thousand twenty-two.
PRESENT: ROSEMARY S. POOLER, RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
JAVIER ALFREDO VALLE ANAYA, Petitioner,
v. 20-2737 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Alison M. Igoe, Senior Counsel for National Security; Drew C. Brinkman, Senior Counsel for National Security, 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 Javier Alfredo Valle Anaya, a native and
citizen of Colombia, seeks review of a July 22, 2020, decision
of the BIA affirming an October 6, 2019, decision of an
Immigration Judge (“IJ”) denying his application for deferral
of removal under the Convention Against Torture (“CAT”). In
re Javier Alfredo Valle Anaya, No. A 093 394 086 (B.I.A. Jul.
22, 2020), aff’g No. A 093 394 086 (Immig. Ct. N.Y. City Oct.
6, 2019). We assume the parties’ familiarity with the
underlying facts and procedural history.
Under the circumstances, we review the IJ’s decision as
supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005) (“Where the BIA adopts the decision
of the IJ and merely supplements the IJ’s decision, however,
we review the decision of the IJ as supplemented by the
BIA.”). The applicable standards of review are well
2 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing the
adverse credibility determination under a substantial
evidence standard).
I. Adverse Credibility
“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” and inconsistencies within and
between an applicant’s statements and other evidence,
“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). This
Court “defer[s] 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 agency’s mixed credibility finding,
i.e., that Valle Anaya was not credible as to his
collaboration with a paramilitary group, his role in the
3 murder of a professor, or the danger he faced if returned to
Colombia.
The agency reasonably relied on three inconsistencies.
See 8 U.S.C. § 1158(b)(1)(B)(ii). First, Valle Anaya
testified that he feared his wife and children would be
kidnapped or killed if returned to Colombia, but also admitted
that they had visited Colombia multiple times without
incident since coming to the United States. Although
voluntary “return trips alone are insufficient to establish
[a] lack of credibility,” they “may be relevant to credibility
in the exercise of an IJ’s informed discretion.” Kone v.
Holder, 596 F.3d 141, 150 (2d Cir. 2010). Here, the IJ did
not rely solely on the voluntary trips to determine
credibility, and did not clearly err in concluding that
multiple, recent trips by Valle Anaya’s family—none of whom
were harmed—rendered his claim less credible.
Second, Valle Anaya testified that he had never
associated with paramilitaries in Colombia, but claimed in
his application that paramilitary members had warned him
about assassins sent to kill him in 2006. Valle Anaya was
unable to explain or resolve this discrepancy. Third, the
4 IJ concluded that Valle Anaya was not credible because
documentary evidence contradicted his claim that he did not
fabricate evidence against the professor. The evidence
included Valle Anaya’s 2017 Colombian conviction, the
Colombian attorney general’s report recommending his
indictment, and media reports, all of which agreed that Valle
Anaya had fabricated the evidence to tie the professor to
FARC. Contrary to Valle Anaya’s claim that the IJ should not
have relied on this evidence due to it being hearsay or
derived from a judgment entered in absentia, an IJ is
permitted to base a credibility finding on “any other relevant
factor” in the record, and is not limited in what those
factors might be. 8 U.S.C. § 1158(b)(1)(B)(iii). Further,
hearsay evidence is admissible in removal proceedings, and
Valle Anaya does not offer any argument that the media reports
are unreliable. See Zhen Nan Lin v. U.S. Dep’t of Justice,
459 F.3d 255, 272 (2d Cir. 2006); Matter of Stapleton, 15 I.
& N. Dec. 469, 470 (BIA 1975). And although Valle Anaya
declined to be personally present for his trial, he was
represented by counsel who made arguments on his behalf.
Finally, the agency reasonably concluded that Valle
5 Anaya’s corroborating evidence did not otherwise satisfy his
burden of proof. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The
testimony . . . may be sufficient to sustain the applicant’s
burden without corroboration, but only if the applicant
satisfies the trier of fact that the applicant’s testimony is
credible . . . [and] persuasive . . . . In determining
whether the applicant has met the . . . burden, the trier of
fact may weigh the credible testimony along with other
evidence of record.”).
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20-2737 Valle Anaya v. Garland BIA Mulligan, IJ A093 394 086 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 20th day of July, two thousand twenty-two.
PRESENT: ROSEMARY S. POOLER, RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
JAVIER ALFREDO VALLE ANAYA, Petitioner,
v. 20-2737 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Alison M. Igoe, Senior Counsel for National Security; Drew C. Brinkman, Senior Counsel for National Security, 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 Javier Alfredo Valle Anaya, a native and
citizen of Colombia, seeks review of a July 22, 2020, decision
of the BIA affirming an October 6, 2019, decision of an
Immigration Judge (“IJ”) denying his application for deferral
of removal under the Convention Against Torture (“CAT”). In
re Javier Alfredo Valle Anaya, No. A 093 394 086 (B.I.A. Jul.
22, 2020), aff’g No. A 093 394 086 (Immig. Ct. N.Y. City Oct.
6, 2019). We assume the parties’ familiarity with the
underlying facts and procedural history.
Under the circumstances, we review the IJ’s decision as
supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005) (“Where the BIA adopts the decision
of the IJ and merely supplements the IJ’s decision, however,
we review the decision of the IJ as supplemented by the
BIA.”). The applicable standards of review are well
2 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing the
adverse credibility determination under a substantial
evidence standard).
I. Adverse Credibility
“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” and inconsistencies within and
between an applicant’s statements and other evidence,
“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). This
Court “defer[s] 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 agency’s mixed credibility finding,
i.e., that Valle Anaya was not credible as to his
collaboration with a paramilitary group, his role in the
3 murder of a professor, or the danger he faced if returned to
Colombia.
The agency reasonably relied on three inconsistencies.
See 8 U.S.C. § 1158(b)(1)(B)(ii). First, Valle Anaya
testified that he feared his wife and children would be
kidnapped or killed if returned to Colombia, but also admitted
that they had visited Colombia multiple times without
incident since coming to the United States. Although
voluntary “return trips alone are insufficient to establish
[a] lack of credibility,” they “may be relevant to credibility
in the exercise of an IJ’s informed discretion.” Kone v.
Holder, 596 F.3d 141, 150 (2d Cir. 2010). Here, the IJ did
not rely solely on the voluntary trips to determine
credibility, and did not clearly err in concluding that
multiple, recent trips by Valle Anaya’s family—none of whom
were harmed—rendered his claim less credible.
Second, Valle Anaya testified that he had never
associated with paramilitaries in Colombia, but claimed in
his application that paramilitary members had warned him
about assassins sent to kill him in 2006. Valle Anaya was
unable to explain or resolve this discrepancy. Third, the
4 IJ concluded that Valle Anaya was not credible because
documentary evidence contradicted his claim that he did not
fabricate evidence against the professor. The evidence
included Valle Anaya’s 2017 Colombian conviction, the
Colombian attorney general’s report recommending his
indictment, and media reports, all of which agreed that Valle
Anaya had fabricated the evidence to tie the professor to
FARC. Contrary to Valle Anaya’s claim that the IJ should not
have relied on this evidence due to it being hearsay or
derived from a judgment entered in absentia, an IJ is
permitted to base a credibility finding on “any other relevant
factor” in the record, and is not limited in what those
factors might be. 8 U.S.C. § 1158(b)(1)(B)(iii). Further,
hearsay evidence is admissible in removal proceedings, and
Valle Anaya does not offer any argument that the media reports
are unreliable. See Zhen Nan Lin v. U.S. Dep’t of Justice,
459 F.3d 255, 272 (2d Cir. 2006); Matter of Stapleton, 15 I.
& N. Dec. 469, 470 (BIA 1975). And although Valle Anaya
declined to be personally present for his trial, he was
represented by counsel who made arguments on his behalf.
Finally, the agency reasonably concluded that Valle
5 Anaya’s corroborating evidence did not otherwise satisfy his
burden of proof. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The
testimony . . . may be sufficient to sustain the applicant’s
burden without corroboration, but only if the applicant
satisfies the trier of fact that the applicant’s testimony is
credible . . . [and] persuasive . . . . In determining
whether the applicant has met the . . . burden, the trier of
fact may weigh the credible testimony along with other
evidence of record.”). “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). This Court “generally defer[s] to
the agency’s evaluation of the weight to be afforded an
applicant’s documentary evidence.” Y.C. v. Holder, 741 F.3d
324, 332 (2d Cir. 2013). Here, Valle Anaya provided letters
from his wife and son, none of whom testified, which the IJ
was not required to credit. Id. at 332, 334 (upholding
BIA’s decision to afford little weight to letter from
applicant’s spouse in China); Matter of H–L–H & Z–Y–Z–, 25 I.
6 & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished
evidentiary weight to letters from “relatives and friends,”
because they were from interested witnesses not subject to
cross-examination), rev’d on other grounds by Hui Lin Huang
v. Holder, 677 F.3d 130 (2d Cir. 2012). Nor did these letters
resolve the contradictions in Valle Anaya’s testimony on
which the credibility determination was made. See Y.C., 741
F.3d at 332.
II. CAT and Other Claims
Valle Anaya did not challenge the IJ’s findings on
removability or waiver of removability on appeal to the BIA,
rendering those issues unexhausted. Lin Zhong v. U.S. Dep’t
of Justice, 480 F.3d 104, 123 (2d Cir. 2007) (“Judicially-
imposed doctrines of issue exhaustion . . . will usually mean
that issues not raised to the [Board] will not be examined by
the reviewing court.”). Valle Anaya argues that he impliedly
challenged the waiver issue by challenging the IJ’s
credibility finding, because the waiver issue “is rooted in
the issue of [Valle Anaya’s] credibility.” Pet. Br. at 13.
But Valle Anaya challenged the credibility finding only in
the context of the CAT claim, with no mention of waiver of
7 removability. The issue is therefore unexhausted and will
not be addressed here. Lin Zhong, 480 F.3d at 123.
Valle Anaya’s only exhausted claim is deferral of removal
under the CAT, a mandatory form of relief that requires the
applicant to show that he would more likely than not be
tortured in the proposed country of removal. 8 C.F.R.
§§ 1208.16(c), 1208.17; Khouzam v. Ashcroft, 361 F.3d 161,
168 (2d Cir. 2004). Not all harm rises to the level of
torture; rather, it is an “‘extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman
or degrading treatment or punishment that do not amount to
torture.’” San Chung Jo v. Gonzales, 458 F.3d 104, 109 (2d
Cir. 2006) (quoting 8 C.F.R. § 1208.18(a)(2)). Torture also
requires that “government officials know of or remain
willfully blind to an act and thereafter breach their legal
responsibility to prevent it.” Khouzam, 361 F.3d at 171.
Substantial evidence supports the agency’s denial of
deferral of removal on the merits because Valle Anaya had not
shown he was likely to be tortured. Valle Anaya did not
allege past torture. 8 C.F.R. § 1208.16(c)(3) (agency
considers past torture). Instead, he claimed that he feared
8 retaliatory torture from FARC and other paramilitaries he
investigated while serving in DAS, due to threatening calls
and letters he and his wife received from September to
December 2006. But aside from Valle Anaya’s own statements,
he offers nothing to show that the threats were made by FARC
or any other paramilitary. See Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid
support in the record . . . fear is speculative at best.”).
Valle Anaya did not show that he received further threats
post-2006. He claims that his attorney in Colombia had been
sent threatening letters more recently, but did not submit
those letters to the IJ. Further, although Valle Anaya
claims that FARC and similar groups remain a threat in
Colombia, country conditions evidence instead indicates that
the paramilitaries lack the same power they did when Valle
Anaya was last in the country.
Finally, the agency reasonably concluded that Valle Anaya
did not show government acquiescence. Khouzam, 361 F.3d at
171. Valle Anaya acknowledged in his testimony that the
Colombian government has prosecuted members of FARC and other
paramilitary groups. He insists that the Colombian
9 government is corrupt, but corruption is not equivalent to
government acquiescence to torture. See 8 C.F.R.
§ 1208.18(a) (acquiescence occurs when an official, before
the torture occurs, is aware of the torture and thereafter
“breach[es] his or her legal responsibility to intervene to
prevent” it). In short, given the lack of “particularized
evidence” suggesting torture is likely, the agency did not
err in denying the deferral claim. Mu Xiang Lin v. U.S.
Dep’t of Justice, 432 F.3d 156, 159–60 (2d Cir. 2005); Jian
Xing Huang, 421 F.3d at 129.
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