Carlos Rodriguez Juarez v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
JUL 8 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS EMILIO RODRIGUEZ No. 20-73815
JUAREZ,
Agency No. A209-127-654
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2022**
San Francisco, California
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
Carlos Emilio Rodriguez Juarez is a citizen of Honduras who entered the
United States without a valid entry document on August 15, 2016. An immigration
judge (IJ) denied Rodriguez Juarez’s applications for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, and protection under the Convention Against Torture (CAT). The Board
of Immigration Appeals (BIA) affirmed. Petitioner argues for relief on two
grounds.1 First, petitioner contends that the IJ’s adverse credibility determination
was clearly erroneous because petitioner subsequently recanted his inconsistent
testimony. Second, petitioner asserts that the IJ erred in finding that he was
ineligible for CAT protection because he had failed to establish that the
government would acquiesce to his torture or that he was unable to relocate and
avoid harm.2 We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny his
petition.
Where the BIA affirms the IJ while citing its decision in Matter of Burbano,
20 I. & N. Dec. 872, 874 (B.I.A. 1994), and adding its own analysis, we review
both decisions together and review the agency’s factual findings for substantial
1
Petitioner does not contest the agency’s findings with respect to the lack of
a nexus between his alleged persecution and a particular social group—failing in
his briefing before this court to mention either of his proposed social groups of
“young men who resist police corruption” or “family”—and any challenge to them
is forfeited. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“[W]e
generally will not take up arguments not raised in an alien’s opening brief before
this court.”). Accordingly, he fails to meet his burden of proof for asylum and
withholding. See Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016).
2
Although petitioner attempts to raise this issue before this court, the BIA
specifically declined to address these findings by the IJ and instead predicated
denial of petitioner’s CAT claim solely on the adverse credibility determination.
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evidence. See Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013);
Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). Under this standard,
we must uphold the findings unless “any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). When applying this standard of
review, we may not re-weigh the evidence, Gu v. Gonzales, 454 F.3d 1014,
1018–19 (9th Cir. 2006), and may only reverse if “no reasonable factfinder could
have reached the agency’s result,” Tzompantzi-Salazar v. Garland, 32 F.4th 696,
703 (9th Cir. 2022) (quoting Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007)).
As long as the IJ has provided specific and cogent reasons for finding the applicant
not credible, “only the most extraordinary circumstances will justify overturning
[the agency’s] adverse credibility determination.” Shrestha v. Holder, 590 F.3d
1034, 1041 (9th Cir. 2010) (quoting Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1
(9th Cir. 2005)).
The IJ’s adverse credibility determination was supported by substantial
evidence. Although petitioner claimed before the IJ that he received a single death
threat from the Mara 18 gang for his refusal to pay a “war tax,” the IJ permissibly
found petitioner lacked credibility because of his prior statement to an immigration
officer in a border patrol interview on August 24, 2016 that he had no fear of
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returning to Honduras and came to the United States only “[t]o find work.” See id.
at 1047 (“[W]hen an inconsistency is at the heart of the claim it doubtless is of
great weight.”). The IJ properly considered and rejected petitioner’s explanation
that he was nervous. Although petitioner asserts that the IJ erred in failing to
honor his recantation of his statement to the immigration officer, an IJ is not
required to interpret evidence as an applicant advocates. See Don, 476 F.3d at 744.
Rather, the IJ must only “consider the petitioner’s explanation for any
inconsistency” while excluding any “utterly trivial inconsistency that . . . [has] no
bearing on a petitioner’s veracity.” Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.
2014) (brackets in original) (internal quotation marks omitted). The IJ was best
positioned to consider the testimony in its context. And, the IJ provided support
from the record for his conclusion. As petitioner was found to lack credibility and
presented no additional information in support of his claims, the IJ and BIA did not
err in determining that petitioner failed to meet his burden of proof. See Wang v.
Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017) (holding that an adverse credibility
determination precludes CAT protection where the CAT claim is “based on the
same statements . . . that the BIA determined to be not credible” (quoting Singh v.
Lynch, 802 F.3d 972, 977 (9th Cir. 2015), overruled on other grounds by Alam v.
Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc))).
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PETITION DENIED.
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