George Napoles-Leyva v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE NAPOLES-LEYVA, No. 19-73041
Petitioner, Agency No. A203-633-164
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney Gen-
eral,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 27, 2022**
San Francisco, California
Before: GRABER and OWENS, Circuit Judges, and BAKER,*** International Trade
Judge.
George Napoles-Leyva, a citizen of Cuba, petitions for review of the Board
of Immigration Appeals’ (BIA) decision dismissing his appeal from the order of an
*
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).
***
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
Immigration Judge (IJ) denying his application for asylum and withholding of re-
moval and protection under the Convention Against Torture (CAT).1
We review the BIA’s denials of asylum and withholding of removal for sub-
stantial evidence and may reverse only if the evidence compels a contrary conclu-
sion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We also review
adverse credibility determinations for substantial evidence. Wang v. Sessions, 861
F.3d 1003, 1007 (9th Cir. 2017). Where, as here, the BIA’s decision cites Matter of
Burbano, 20 I&N Dec. 872 (BIA 1994), and also provides the Board’s own reasons,
we review both decisions. Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013).
1. The adverse credibility finding is supported by substantial evidence. The IJ
correctly emphasized that Napoles-Leyva’s inconsistent testimony concerning a
passport application involved “a significant life event involving an alleged torture
and the basis of Respondent’s claim. Claiming he cannot remember the sequences
of these significant events casts doubts on whether Respondent actually experienced
these events as he claimed.” The BIA noted that, on appeal, Napoles-Leyva failed to
address those issues and also failed to address the IJ’s adverse credibility finding.
Substantial evidence supports the administrative determinations. And contrary to
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Napoles-Leyva did not appeal the denial of CAT relief to the BIA, which deemed
that claim abandoned.
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Napoles-Leyva’s assertions, the IJ gave Napoles-Leyva an opportunity to explain
and clarify the inconsistencies.
2. The IJ also found that there was no evidence to support a reasonable fear of
future persecution. Napoles-Leyva does not address that issue in his briefing here
and we therefore deem it waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60
(9th Cir. 1996).
3. Finally, Napoles-Leyva contends that the IJ violated his Fifth Amendment
due process rights by admitting evidence submitted by the government without giv-
ing him a chance to review it, by denying a continuance to allow him to obtain his
own supporting evidence, and by not stating that he familiarized himself with the
record as required by 8 C.F.R. § 1240.1(b). We lack jurisdiction to consider the due
process argument because Napoles-Leyva never raised it before the BIA. Brown v.
Holder, 763 F.3d 1141, 1146 (9th Cir. 2014).
Although Napoles-Leyva never filed a brief with the BIA, it is still possible
for a petitioner to assert a theory via the “Notice of Appeal” form he files with the
BIA. See, e.g., Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (rejecting
government’s waiver argument when notice of appeal and subsequent motion for
reconsideration raised ineffective assistance issue). The key is that the BIA must be
“given an opportunity to review and adjudicate” the petitioner’s claims “through
either direct appeal or the motion for reconsideration.” Id. Napoles-Leyva filed two
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notices of appeal with the BIA, but neither one raised a due process theory. “When
a petitioner files no brief and relies entirely on the notice of appeal to make an im-
migration argument,” as Napoles-Leyva did here, “the notice of appeal serves in lieu
of a brief, and he will be deemed to have exhausted all issues raised therein,” but not
others. Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009).
PETITION DENIED IN PART AND DISMISSED IN PART.
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