Daniel Bautista-Lopez v. Jefferson Sessions ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 27 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL BAUTISTA-LOPEZ, No. 15-71402
Petitioner, Agency No. A079-143-798
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III,
Attorney General
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 9, 2018
Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District
Judge.
Daniel Bautista-Lopez, a Mexican native, petitions for review of the Board of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Immigration Appeals (BIA) order dismissing his appeal of the denial of his
application for withholding of removal and protection under the Convention Against
Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a)(1) and review the
agency’s factual findings for substantial evidence. Shrestha v. Holder, 590 F.3d 1034,
1039 (9th Cir. 2010). We grant in part and deny in part the petition for review.
1. Because the BIA relied on the IJ’s analysis of Bautista-Lopez’s credibility, “we
look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.”
Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted). Under the
applicable REAL ID Act standard, the IJ must consider the totality of the
circumstances and provide “‘a specific cogent reason’ for the adverse credibility
finding.” Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (citation omitted); see also
8 U.S.C. § 1158(b)(1)(B)(iii). Here, the IJ found Bautista-Lopez was not credible
based on material discrepancies between his I-589 application and his hearing
testimony.
In his I-589 application, Bautista-Lopez succinctly stated that he was kidnaped
by locals, sold to the cartel, and beaten severely for three weeks because he refused
to assist with the cartel’s drug smuggling operations. However, he did not mention
that his captors used bolt cutters to sever one toe and split open another, as he testified
during the hearing. Nor did he mention the “crippled man” who tried to help him or
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his family’s efforts to secure his ransom—both prominent features of his hearing
testimony. Bautista-Lopez explained that he did not mention these details earlier
because he “forgot,” which the IJ found “suspicious.” The IJ also skeptically noted
Bautista-Lopez’s testimony that when he returned to the United States, he sought
medical attention for a cut on his hand, but not his severed toe.
On appeal, the BIA concluded that these omissions and inconsistencies “were
not minor, collateral details, but instead went to the core of his alleged fear of
returning to Mexico.” We agree. Thus, substantial evidence supports the IJ’s adverse
credibility determination and the BIA’s denial of withholding of removal.
2. The next issue is the application for CAT protection. The evidence included the
Mexico 2013 Human Rights Report (Mexico Report), which was admitted without
objection. To demonstrate eligibility for CAT relief, “an alien must show that it is
‘more likely than not’ that a government official or person acting in an official
capacity would torture him or aid or acquiesce in his torture by others.” Wakkary v.
Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009) (quoting Kamalthas v. INS, 251 F.3d
1279, 1283 (9th Cir. 2001)); see also 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The
IJ is required to consider “all evidence relevant to the possibility of future torture.”
8 C.F.R. § 1208.16(c)(3). “Even if the IJ correctly concluded that [the petitioner’s]
testimony, by itself, was insufficient to meet his burden under CAT, this conclusion
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would not be dispositive because a CAT applicant may satisfy his burden with
evidence of country conditions alone.” Aguilar-Ramos v. Holder, 594 F.3d 701, 705
(9th Cir. 2010) (citing Kamalthas, 251 F.3d at 1284).
The IJ failed to address the Mexico Report in ruling on the CAT claim.
Respondent contends this was not error because though the IJ must consider all
relevant evidence, he or she is not required to “discuss each piece of evidence
submitted.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (emphasis added).
Instead, “general language that the agency ‘considered all the evidence before [it]’ is
sufficient.” Garcia v. Holder, 749 F.3d 785, 791–92 (9th Cir. 2014) (“To say that
there is ‘no evidence in the record’ clearly implies that the BIA has looked at all of the
evidence in the record.”).
But the IJ and BIA opinions in this case included no such “catch all” language.
Therefore, we grant the petition for review of this claim and remand for consideration
in the first instance of the CAT claim in light of the Mexico Report. See Aguilar-
Ramos, 594 F.3d at 705 (“Because the BIA failed to reconsider the Country Report
at all, the proper course of action is to remand with instructions that the BIA consider
[Petitioner’s] CAT claim in light of the Country Report.”); see also INS v. Orlando
Ventura, 537 U.S. 12, 16 (2002) (per curiam).
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART,
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AND REMANDED.
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