Clarifying the Weight of Direct Contradictions: Paguay-Acosta v. Bondi and the Second Circuit’s Refinement of Credibility Analysis in Asylum Proceedings

1. Introduction

In Paguay-Acosta v. Bondi, the United States Court of Appeals for the Second Circuit reviewed an order of the Board of Immigration Appeals (BIA) that had affirmed an Immigration Judge’s (IJ) denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT) to an Ecuadorian family claiming persecution on account of their indigenous identity.

Although issued as a “Summary Order”—and thus not formally precedential under the Court’s Local Rule 32.1.1—the decision is nevertheless significant. It reiterates, sharpens, and synthesises a line of Second Circuit authority on credibility determinations in asylum cases, highlighting:

the decisive import of direct contradictions between an applicant’s written account and oral testimony,
the role of “minor” inconsistencies when viewed “in the totality of circumstances,”
the applicant’s duty to provide corroborative evidence to rehabilitate weakened credibility, and
the deferential “substantial evidence” standard governing appellate review of agency fact-finding.

These clarifications, while technically non-binding, furnish valuable guidance for practitioners and future litigants navigating credibility disputes in the asylum context.

2. Summary of the Judgment

The Court—Judges Sack, Nardini, and Robinson—denied the petition for review. Key determinations included:

The IJ’s adverse credibility determination was supported by substantial evidence, notably:
- Inconsistencies about whether and when physical harm occurred (February 27 incident).
- Omission—and explicit denial—of a March 6 assault alleged in the written statement.
- Conflicting timelines concerning the time of day (5:00 a.m. vs. noon) and duration of stays in Suscal and El Triunfo.
The petitioner’s proffered explanations failed to compel a contrary finding; plausible explanations are insufficient under Majidi v. Gonzales.
The lack of reliable corroboration compounded the credibility concerns (Biao Yang).
Because all forms of relief relied on the same discredited factual core, the adverse credibility finding was dispositive for asylum, withholding, and CAT protection.

3. Analysis

3.1 Precedents Cited and Their Influence

8 U.S.C. § 1158(b)(1)(B)(iii) – Statutory provision codifying the “totality of circumstances” test and enumerating factors (demeanor, inconsistencies, inaccuracies) that may support an adverse credibility finding.
Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) – Confirmed that even minor inconsistencies can justify an adverse credibility ruling when viewed collectively. The court relied on this case to endorse the IJ’s attention to time-of-day discrepancies.
Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) – Distinguished between omissions and contradictions; omissions may be less probative unless they create a “direct contradiction.” The panel drew on this principle to stress that the petitioner did more than omit the March 6 incident—he actively denied it.
Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) – Articulated that, where two permissible interpretations of evidence exist, the fact-finder’s choice cannot be deemed clearly erroneous. Invoked to uphold the IJ’s reading of the 5:00 a.m. versus noon inconsistency.
Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) – Held that a petitioner must compel a fact-finder to accept his explanation of inconsistencies. Used to reject Paguay-Acosta’s arguments that his shifting narrative was reconcilable.
Biao Yang v. Gonzales, 496 F.3d 268 (2d Cir. 2007) – Confirmed that lack of corroboration weighs against credibility. The court noted the petitioner abandoned any challenge to the IJ’s corroboration findings.
Likai Gao v. Barr, 968 F.3d 137 (2d Cir. 2020) – Reaffirmed that “even a single inconsistency” can suffice to sustain an adverse credibility finding.

Taken together, these authorities form a coherent doctrinal lattice: direct contradictions, unexplained or inadequately explained, justify disbelief; minor or peripheral inconsistencies may accumulate; corroboration (or the lack thereof) can tip the scale; and appellate courts must defer unless “any reasonable adjudicator” would be compelled to credit the claim.

3.2 The Court’s Legal Reasoning

Standard of Review
The panel applied the bifurcated standard: “substantial evidence” for factual findings, de novo for legal questions. It examined the IJ decision “as modified by the BIA”—ignoring grounds the BIA declined to adopt (Xue Hong Yang).
Inconsistencies and Contradictions
a. Physical Harm on February 27 – Petitioner alternately denied and alleged any beating.
b. March 6 Incident – Complete silence in oral testimony despite detailed written narrative.
c. Time-of-Day Discrepancy – 5:00 a.m. in writing vs. noon in testimony.
d. Timeline of Hiding – Conflicting statements on duration in Suscal and El Triunfo.
Failure to Rehabilitate
Documentary evidence did not resolve the contradictions, and the petitioner did not meaningfully contest that conclusion on appeal—thus abandoning the point (Debique v. Garland).
Consequential Effect
Because credibility was the linchpin for asylum, withholding, and CAT claims alike, once credibility collapsed, all three forms of relief fell simultaneously.

3.3 Potential Impact

Even as a non-precedential order, Paguay-Acosta is poised to carry persuasive weight within the Second Circuit and beyond, particularly on the following fronts:

Litigation Strategy – Applicants will need to ensure meticulous internal consistency between affidavits, credible fear interviews, and hearing testimony. Attorneys must pre-emptively address even seemingly small discrepancies.
Evidentiary Preparation – Corroboration is indispensable where factual narratives contain any uncertainty. Medical records, contemporaneous complaints, affidavits from witnesses, or country conditions reports may counterbalance minor inconsistencies.
Judicial Economy – The decision affirms that appellate courts may dispose of petitions summarily where credibility findings meet the statutory standard, conserving judicial resources.
Doctrinal Clarification – The order underscores that “direct contradictions” receive greater probative weight than omissions, refining the guidance issued in Hong Fei Gao.

4. Complex Concepts Simplified

Adverse Credibility Determination – A finding that an applicant’s testimony is not trustworthy. Without credible testimony, the claim typically fails unless independently supported by corroborative evidence.
Substantial Evidence Review – A deferential appellate standard: the agency’s factual finding stands unless a reasonable fact-finder would be compelled to reach the opposite conclusion.
Withholding of Removal – A form of protection requiring proof that the applicant’s life or freedom would be threatened more likely than not (≥ 50 % probability) on account of a protected ground.
Convention Against Torture (CAT) Relief – Protection from removal where the applicant shows it is more likely than not they would be tortured by or with the acquiescence of government officials.
Corroboration – Independent evidence (documents or witness testimony) that supports the applicant’s account. Lack thereof can reinforce an adverse credibility finding.

5. Conclusion

Paguay-Acosta v. Bondi fits squarely into the Second Circuit’s evolving jurisprudence on credibility in asylum adjudications. It crystallises several principles:

Direct contradictions are highly probative—and often fatal—to credibility.
Seemingly “minor” discrepancies (time of day, duration of stay) may become substantial when taken cumulatively.
Plausible explanations must do more than exist; they must compel acceptance.
Applicants shoulder the burden of producing corroboration to rehabilitate questionable testimony.
Appellate review is—and will remain—exceedingly deferential to agency fact-finding absent compelling contrary evidence.

For attorneys, advocates, and adjudicators, the case serves as a cautionary tale: precision, consistency, and corroboration are not mere formalities but the pillars upon which asylum claims rise or fall.