Martinez v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUL GREGORIO MARTINEZ, 
Petitioner, No. 04-72975
v.
 Agency No.
A70-217-803
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 7, 2007—Pasadena, California
Filed March 3, 2009
Before: Harry Pregerson, John T. Noonan, and
Stephen S. Trott, Circuit Judges.
Opinion by Judge Trott;
Dissent by Judge Pregerson
2443
MARTINEZ v. HOLDER 2445
COUNSEL
Kari E. Hong, Law Offices of Helen A. Sklar, Los Angeles,
California, for the petitioner.
Arthur L. Rabin, U.S. Department of Justice, Office of Immi-
gration Litigation, Washington D.C., for the respondent.
OPINION
TROTT, Circuit Judge:
Saul Martinez, a native of Guatemala, petitions for review
of a Board of Immigration Appeals’ (“BIA”) decision that
denied his claims for asylum, withholding of removal, and
voluntary departure. In a 2003 decision, this court remanded
the matter to the BIA for further proceedings, concluding that
it had failed to provide cogent reasons for rejecting Marti-
nez’s testimony in support of his application. Martinez v.
I.N.S., 72 F. App’x 564 (9th Cir. 2003). In its recent decision,
the BIA upheld the Immigration Judge’s (“IJ”) adverse credi-
bility finding regarding Martinez. Martinez also petitions for
review of the BIA’s decision that denied his motion to reopen
to consider his Convention Against Torture claim.
We have jurisdiction over this timely petition, which we
deny on both counts.
I
“We review adverse credibility findings under the substan-
tial evidence standard.” Rivera v. Mukasey, 508 F.3d 1271,
1274 (9th Cir. 2007). “The BIA must have a legitimate
articulable basis to question the petitioner’s credibility, and
must offer a specific, cogent reason for any stated disbelief.”
Valderrama v. I.N.S., 260 F.3d 1083, 1085 (9th Cir. 2001)
2446 MARTINEZ v. HOLDER
(internal quotation marks omitted). Here, because the BIA
failed when it first heard this case to provide specific, cogent
reasons to support its initial adverse credibility determination,
we remanded to give the BIA the opportunity to provide rea-
sons for its conclusions. See Garrovillas v. I.N.S., 156 F.3d
1010, 1015-16 (9th Cir. 1998) (finding that the BIA’s deci-
sion was not supported by substantial evidence and remanding
to the BIA with instructions to provide specific reasons). The
BIA has followed our instructions, and we now review its
decision.
II
The facts pertaining to Martinez’s credibility — or the lack
thereof — are striking. In his initial Request for Asylum in the
United States dated September 21, 1992, he made the follow-
ing admittedly false representations under penalty of perjury,
declaring that “the above and all accompanying documents
are true and correct to the best of my knowledge and belief”:
I am seeking Asylum in the US. Because in Guate-
mala I was threatened by the Gobernment because I
was in the University of San Carlos I was Leader of
the Students in the University of San Carlos and for
this reason the Gobernment persecuted and threat-
ened me, I am afraid to return Guatemala because
many of my companions to disappear completely
and I can to disappear likewise. I was constantly
threatened by the Gobernment and my life was in
more danger than the rest of the people of my coun-
try. If I didn’t leave, I would have been killed.
The constant conflicts that exist in Guatemala no
security for anyone. In my case that I belonged to
student groups is very hard to live in Guatemala.
....
MARTINEZ v. HOLDER 2447
I was in Student Group of The University of San
Carlos during the period between 1986 to Nov. 1991.
I was active member. My duties were to organized
Political Meeting. And organized to the Students.
....
I was threatened by the Gobernment they have gone
on various occasions to my house and the University
looking for me. because I was Leader of the Students
in the University of San Carlos, causing my life to
be threatened to death by the Gobernment.
....
I came to the US. in search of protection of my life,
I also came in search of a peaceful life without
always having to fear for my life, because in Guate-
mala my life was in danger, I was always persecuted
by the Gobernment.
The next step in what turns out to have been a plot to
deceive the Immigration and Naturalization Service, the
United States Department of Justice, and the Attorney Gen-
eral was to foil the asylum officer assigned to his case. To
accomplish this ruse, he appeared in person before the officer
three years after his application and testified under oath —
again falsely — that he was the victim of persecution “on
account of my political opinion.” Moreover, he swore before
the officer that the content of his initial request was true. The
officer’s Assessment Report dated November 14, 1995, dem-
onstrates that his hoax was designed to fit neatly into the
requirements of our asylum law. The officer’s report reads as
follows:
Applicant indicated that he is a 31-year-old male
native and citizen of Guatemala who entered the
2448 MARTINEZ v. HOLDER
United States on May 14, 1992 at San Ysidro, Ca
without inspection.
Applicant fears that he will be killed by the govern-
ment on account of his political opinion.
Applicant credibly testified that in January 1991, he
became a leader in a student club at San Carlos Uni-
versity. Applicant stated that he began having prob-
lems due to his political opinion after participating in
Mardi Gras type parades with political overtones.
Applicant began receiving threatening phone calls in
January 1991 and believed that agents of the govern-
ment were responsible. Applicant did not stated [sic]
a political opinion in response to the phone calls.
Applicant stated that the calls persisted through June
1991, when Applicant went to visit his parents in
Puerto Barrios. Applicant did not expereince [sic]
any problems in Puerto Barrios and stated that it was
a remote little town far from Guatemala City. In
August 1991, Applicant was chased by a car. Appli-
cant was not harmed, although he believed that the
government was responsible. In November 1991,
Applicant was again chased by a car and shot at.
Applicant was not harmed and believed that the gov-
ernment was trying to scare him. Applicant left Gua-
temala the next day and traveled through Mexico
prior to coming to the United States. Applicant fur-
ther stated that he has a brother, who is currently liv-
ing in Guatemala City and not experiencing any
problems with the Government. Applicant’s family
is presently living in Puerto Barrios, and not experi-
encing problems with the government.
Applicant has been threatened on several occasions
on account of his political opinion. Threats alone do
not constitute persecution. The Applicant has not
established a well-founded fear of future persecu-
MARTINEZ v. HOLDER 2449
tion. It appears that the threats the Applicant suffered
were local in nature. The Applicant was able to live
in Puerto Barrios, and not experience problems with
the government. Applicant’s parents are presently
living in Puerto Barrios and not experiencing prob-
lems. Applicant has not established that the govern-
ment has the inclination to pursue him. Applicant
can relocate.
For the foregoing reasons, Applicant is not eliglible
[sic] for asylum in the United States. Assessment is
to refer to the Immigration Judge.
(emphasis added).
Three aspects of this report are particularly noteworthy.
First, the level of invented detail with which Martinez pres-
ented his false claim. Second, his ability to convince an expe-
rienced asylum officer that his swindle was credible; and
third, Martinez’s failure nonetheless to achieve a favorable
asylum eligibility recommendation.
Having failed to convince the asylum officer that his phony
political persecution story made him eligible for asylum, Mar-
tinez simply changed his tune, shed his first yarn, and showed
up three months later for a hearing before an IJ, armed with
an entirely new ground designed to make him eligible for asy-
lum. No longer had he been a victim of persecution on
account of his political opinion. Now, euphemistically calling
his bogus initial request “partially incorrect,” he averred that
he had been persecuted because of his homosexuality.
When confronted at his hearing with his previous story,
Martinez conceded that both the elaborate tale he recounted
in his initial request and then repeated in person three years
later to the asylum officer was a fabrication. He allowed that
he had taken an oath to tell the truth to the officer, but that he
had lied anyway because his “life was in danger.” When
2450 MARTINEZ v. HOLDER
pressed, Martinez admitted that the asylum officer had not
been intimidating and that he had never had any problem dur-
ing the four years he had been in the United States with gov-
ernment officials because of his homosexuality.
The context of Martinez’s lies under oath to the asylum
officer was the subject of direct testimony by the officer, none
of which supports the existence of a hostile interview atmo-
sphere which would explain Martinez’s adherence to his lies
or his alleged fear of danger. The officer’s testimony amply
supports the IJ’s disbelief of Martinez’s explanation of his
lies. Stating that he specifically recalled Martinez’s interview,
the officer said:
I, I do swear them in also. I think I stated that also,
you know, as I was sworn today stating that he
should tell the truth and such. We — I personally
explain the procedure trying to make him feel as
comfortable as possible letting them know what the
next step is in the procedure even prior to getting to
the interview. After explaining the procedure we go
ahead and verify the biographical data on the I-589,
okay, and ask for any other evidence that he may be
willing to provide at that time. We assure that the
interview is very confidential, that nothing will get
back to Guatemala. That’s part of the procedure and
basically trying to reassure the applicant we’re there
to help them if we can. So they tell, tell us their com-
plete story and we go, we go ahead over all the bio-
graphical information and also the, the testimony on
the I-589. And we, we start — usually I start by ask-
ing him the application to tell me the most severe
incidents that he experienced in Guatemala that com-
pelled him to come to the United States. I make it
clear that there are five grounds so there is not just,
not just one ground that there — I also let them
know that there is membership in political social —
political group which is more or less a — member-
MARTINEZ v. HOLDER 2451
ship in a, in a social group, excuse me. Not necessar-
ily in a political group. I do ask whether he’s, he’s
been a member of any groups or organizations, polit-
ical or otherwise, other than the Catholic church per
se. I , I do make it clear that there are five grounds.
And we, we get into eliciting information, ascertain-
ing that information for credibility, that’s the major-
ity of the interview. Okay. We stress credibility very
highly and then upon completion of the interview I,
I bring any changes that were made during the inter-
view on the 589 or in testimony, anything that is
inconsistent with what, what was explained origi-
nally. That is addressed. Upon addressing any incon-
sistencies we have the applicant sign stating that all
the testimony that he has provided on the 589 and
also his verbal testimony is true and correct.
(emphasis added).
In a thorough and detailed twenty-three page decision, the
IJ arrayed every aspect of the case and evidence before him
and then turned to Martinez’s credibility. Noting that the bur-
den to demonstrate eligibility rested with the petitioner, the IJ
made the following lack of credibility finding:
The Respondent has presented insufficient spe-
cific facts as well as concrete and/or credible evi-
dence for the Court to infer that he has been
persecuted or has a well-founded fear of persecution
in Guatemala on account of his race, his religion, his
nationality, his membership in a particular social
group or his political opinion. The basis of the
Respondent’s claim to asylum before this Court was
dramatically inconsistent with the claim presented to
the INS in 1992 and reaffirmed before an INS asy-
lum officer on November 13, 1995. Although
Respondent provides an explanation for the different
claims I do not find that explanation to be credible.
2452 MARTINEZ v. HOLDER
In light of the Respondent’s intelligence and more
than three years time in the Los Angeles area during
which time he appears to have freely associated with
other gays and to have had no untoward difficulties
with governmental authorities Respondent did not
acquire the articulate intelligent relaxed demeanor
which he exhibited in this Court overnight. More-
over, we have a situation where the Respondent did
worse than neglect for whatever reason to refer to his
“homosexual” claim in 1992 or 1995, he set forth
“student/political” claim which was completely
untrue and he knew it was untrue. The Respondent’s
prior experience does not entitle him to come to the
United States and lie to a governmental official to
secure benefits under the laws of this country. Based
upon this conduct I find that Respondent’s present
claim of mistreatment due to his homosexuality
lacks credibility and, indeed, that Respondent is not
a person of good moral character as that term is
defined at Section 101(f)(6) of the Act.
....
The Respondent has applied for the privilege of
voluntary departure pursuant to Section 244(e) of the
Act as it existed prior to April 1, 1997. That section
requires an alien to establish that he is a person of
good moral character at least five years immediately
preceding his application. Good moral character as a
defined term in Section 101(f)(6) of the Act bars the
finding of good moral character if the alien has given
false testimony for the purpose of obtaining any ben-
efit under the Act. In this case, Respondent is unable
to establish statutory eligibility as he gave false testi-
mony before an INS asylum officer on November
13, 1995 for the purpose of obtaining asylum in the
United States pursuant to Section 208 of the Act.
MARTINEZ v. HOLDER 2453
Accordingly, Respondent’s application for voluntary
departure is denied on statutory grounds.
The BIA determined in its first Order denying asylum that
Martinez had not presented a credible testimonial claim suffi-
cient to satisfy his burden of proof. Addressing Martinez’s
attempted explanation for the difference between his two sto-
ries, the BIA said, “We are not persuaded by the respondent’s
explanations for this discrepancy.” On remand, the Board
affirmed its adoption in its first Order of the IJ’s adverse cred-
ibility finding, this time giving reasons for its decision:
On July 25, 2003, the Ninth Circuit remanded the
instant proceeding to the Board after finding that the
Board failed to provide a specific, cogent reason for
rejecting the respondent’s justification for misrepre-
senting the basis of his fear. Through his appeal, the
respondent incorporates a motion to remand to pur-
sue relief under the Convention Against Torture
(“CAT”). The respondent’s appeal is dismissed. The
respondent’s motion is denied.
Upon review, we affirm our prior resolution of the
instant case. Specifically, we find that the respondent
failed to sustain his burden of proof regarding asy-
lum as the result of his lack of credibility. The record
reflects that the respondent twice misrepresented the
basis of his fear while testifying under oath (Exhs. 2
and 12). Specifically, we note that the respondent
initially claimed that he had been persecuted on
account of his political opinion, however, he subse-
quently retracted this claim and instead, asserted that
he suffered persecution on account of his sexual ori-
entation. We find this discrepancy material as it goes
to the heart of the respondent’s asylum claim.
Although the respondent explained that the afore-
mentioned misrepresentation was due to his fear of
2454 MARTINEZ v. HOLDER
experiencing additional persecution if the United
States government learned of his sexual orientation,
we do not find his justification persuasive. As
observed by the Immigration Judge, the respondent
spent more than 3 years in the Los Angeles area
freely associating with other gays and furthermore,
he did not experience any problems with any United
States governmental authorities (I.J. at 17). As fur-
ther noted by the Immigration Judge, the respondent
exhibited an “articulate, intelligent and relaxed
demeanor.” Id. In sum, we adopted the Immigration
Judge’s decision below as the Immigration Judge
articulated cogent reasons for his adverse credibility
finding.
III
[1] As the record reveals, Martinez repeatedly and persis-
tently lied under oath with respect to his application for asy-
lum. That his skillful lies were material and went to the heart
of his presentation goes without saying. The IJ’s reasons for
his adverse credibility finding “bear a legitimate nexus” to his
decision. Salaam v. I.N.S., 229 F.3d 1234, 1238 (9th Cir.
2000); and we can discern no flaw in either the IJ’s or the
BIA’s cogent reasoning. Gui v. I.N.S., 280 F.3d 1217, 1225
(9th Cir. 2002). Thus, both the IJ and the BIA’s specific
adopted adverse credibility findings are well supported by
substantial uncontroverted evidence in the record. Al-Harbi v.
I.N.S., 242 F.3d 882, 889-90 (9th Cir. 2001) (affirming nega-
tive credibility finding supported by applicant’s “propensity
to change his story regarding incidents of past persecution”).
[2] An asylum seeker’s incentive to lie is not curtailed by
fear of the IJ’s scrutiny or the government’s fact checkers.
These are only small obstacles that can be easily overcome.
The major check on the asylum seeker’s incentive to lie is an
oath to tell the truth, and the asylum seeker’s belief that he or
she will be held to that oath. It is fair to say that the asylum
MARTINEZ v. HOLDER 2455
process is ultimately an honor system — it depends largely on
the assumption that asylum seekers will take the oath seri-
ously, and that they will be truthful in their testimony. The
Ninth Circuit can do much to reduce the risk of error and to
mitigate unfair procedures in immigration proceedings. How-
ever, in order for the process to work, we must construe and
enforce the oath strictly, so that we may be more lenient else-
where in the process. Accordingly, we deny Martinez’s peti-
tion for review.1
Petition DENIED.
PREGERSON, Circuit Judge, Dissenting:
It was wrong for Martinez initially to tell a false tale about
his persecution in Guatemala to immigration authorities. But
it is not hard to see why a gay man who suffered persecution
on account of his sexual orientation would want to hide that
fact from immigration authorities. When Martinez filed his
asylum application in 1992, the INS had not yet recognized
that persecution on account of sexual orientation provided a
valid basis for an asylum claim. See Karouni v. Gonzales, 399
F.3d 1163, 1171 (9th Cir. 2005). Indeed, before the Immigra-
tion Act of 1990, homosexuality was a ground on which to
exclude any immigrant who wished to enter this country. See
Pub. Law 101-649 § 601, 104 Stat. 4978, 5067 (1990); see
also House Rep. No. 723(I), 101st Cong., 2d Sess., p. 56,
reprinted in 1990 U.S. Code Cong. & Ad. News 6710, 6736.
In this context, it is easy to understand how Martinez might
have felt compelled to tailor his story to avoid being returned
to Guatemala, where he suffered persecution on account of his
sexual orientation.
1
We conclude that the BIA did not abuse its discretion in concluding
that Martinez failed to establish a prima facie case that warrants reopening
under the Convention Against Torture.
2456 MARTINEZ v. HOLDER
In reviewing an IJ’s adverse credibility finding regarding
an asylum petitioner, our court in Turcios v. INS stated: “Un-
true statements by themselves are not reason for refusal of ref-
ugee status[,] and . . . it is the examiner’s responsibility to
evaluate [the petitioner’s false] statements in the light of all
the circumstances of the case.” Turcios v. INS, 821 F.2d 1396,
1400 (9th Cir. 1987) (finding that the lies petitioner told to
immigration authorities actually supported petitioner’s fear of
deportation). If Martinez had filed his asylum application in
1992 alleging persecution on account of his sexual orienta-
tion, he would likely have been deported. Instead, Martinez
initially alleged political persecution, a valid basis for an asy-
lum claim in 1992, because he greatly feared being returned
to Guatemala. It was not until April 1996 that the INS “for-
mally adopted the ‘position . . . that homosexuals do consti-
tute a particular social group.’ ” Karouni, 399 F.3d at 1171
(quoting a Memorandum from David A. Martin, INS General
Counsel, to All Regional and District Counsel (Apr. 4, 1996)).
On April 23, 1996, nineteen days after the INS recognized
that persecution based on sexual orientation was a valid
ground for an asylum claim, Martinez explained his true rea-
sons for seeking asylum in the United States in a detailed dec-
laration.
Accordingly, I disagree with the BIA’s finding that the IJ
in the case before us “articulated cogent reasons for his
adverse credibility finding.” As in Turcios, the IJ’s explana-
tion that Martinez was not credible because initially he made
false statements to immigration officials was insufficient. In
fact, Martinez’s statements may have “support[ed] his claim
of fear of persecution,” Turcios, 821 F.2d at 1401, because
Martinez misrepresented the truth solely to avoid persecution
in Guatemala based on his sexual orientation, in response to
U.S. immigration policies forbidding such asylum claims at
the time he made the statements.
Furthermore, nowhere does Martinez testify that he feared
“additional persecution [in the United States] if the United
MARTINEZ v. HOLDER 2457
States government learned of his sexual orientation,” as the
BIA and Majority contend. Instead, Martinez’s fear was
premised on his belief that he would be further persecuted if
the United States government were to deport him to Guate-
mala. The Majority states that the IJ’s reasons for his adverse
credibility finding did “bear a legitimate nexus” to the IJ’s
decision. I disagree. That Martinez was “freely associating
with other gays” in Los Angeles has no bearing on or nexus
to the IJ’s decision that Martinez was not credible, nor does
it have any bearing on or nexus to the suffering Martinez
feared he would experience were he deported to Guatemala.
Therefore the IJ’s negative credibility finding — affirmed by
the BIA — doesn’t hold water.
Because the IJ did not articulate cogent reasons for his
adverse credibility finding, and because the IJ did not provide
a legitimate nexus between the reasons for his adverse credi-
bility finding and his ultimate decision, Martinez’s petition
should not have been denied. Accordingly, I dissent.