Saidy Pensamiento-Duarte v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAIDY IVETH PENSAMIENTO- No. 19-72331
DUARTE; NEISY JASLEMAR
PENSAMIENTO-DUARTE, Agency Nos. A208-902-918
A208-902-917
Petitioners,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 1, 2021**
San Francisco, California
Before: IKUTA and NGUYEN, Circuit Judges, and EATON,*** Judge.
*
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).
***
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
Saidy Iveth Pensamiento-Duarte,1 a native and citizen of Guatemala, applied
for asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). After making an adverse credibility determination, the Immigration
Judge (IJ) denied all relief, and the Board of Immigration Appeals (BIA) dismissed
Pensamiento’s subsequent appeal. Pensamiento now petitions for review,
challenging the adverse credibility determination, and arguing that she experienced
“physical and mental abuse amounting to torture . . . [which establishes] both past
persecution and a well-founded fear of future persecution.” We have jurisdiction
under 8 U.S.C. § 1252(a), and we deny the petition.
1. We review adverse credibility determinations under a substantial evidence
standard. See Jin v. Holder, 748 F.3d 959, 964 (9th Cir. 2014). We review both the
BIA’s decision and the IJ’s decision where, as here, the BIA adopts the IJ’s analysis
and adds its own reasoning. See, e.g., Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.
2000).
Substantial evidence supports the agency’s finding. Pensamiento’s testimony
before the IJ was inconsistent with statements she made during her asylum interview
and in her declaration. When testifying about her escape attempts from her abusive
domestic partner, she stated that she tried to escape twice, even though, at her asylum
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Pensamiento’s minor daughter is a derivative beneficiary of
Pensamiento’s asylum application.
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interview, she had claimed that she tried to escape five times. She was unable to
provide a consistent and plausible timeline as to her pregnancy and childbirth, her
state of consciousness, the alleged injuries she suffered, and her eventual escape.
She admitted that she exaggerated her account because she did not want to be
deported and said that she was willing to make false statements to prevent her
deportation.
Based on these inconsistencies and admissions, the agency’s adverse
credibility determination was supported by substantial evidence. The inconsistencies
in Pensamiento’s testimony concerned the nature, extent, and cause of the
persecution that she claimed warranted relief. Considering the totality of the
circumstances, the BIA properly affirmed the adverse credibility determination. See
Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010).
2. Pensamiento thus could not establish, by credible testimony, the requisite
subjective, well-founded fear of future persecution—or a history of past
persecution—necessary for asylum and withholding of removal. See Kaiser v.
Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004); see also Jiang v. Holder, 754 F.3d 733,
740 (9th Cir. 2014) (holding that the standard for withholding of removal is higher
than the standard for asylum, and thus if a petitioner’s asylum claim fails, her
withholding of removal claim will also fail). Accordingly, we deny her petition as
to these forms of relief.
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3. Finally, the agency’s determination that Pensamiento is not entitled to
protection under CAT is supported by substantial evidence. To be entitled to CAT
protection, a petitioner bears the burden of showing that she is “more likely than
not” to be tortured, with acquiescence (including willful blindness) by government
officials, if returned to her home country. See Garcia v. Holder, 749 F.3d 785, 791
(9th Cir. 2014) (citing 8 C.F.R. § 1208.16(c)(3)). We review factual findings
underlying the denial of relief under CAT for substantial evidence. See Zheng v.
Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).
Because her testimony was not credible, the only evidence Pensamiento has
to support her CAT claim is documentary evidence of country conditions in
Guatemala. The country conditions evidence here is too generalized to compel the
conclusion that Pensamiento herself likely will be tortured if deported to Guatemala.
See Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006) (“Although the
reports confirm that torture takes place in Yemen, they do not compel the conclusion
that [the noncitizen] would be tortured if returned.”). Therefore, substantial evidence
supports the agency’s denial of CAT protection.
PETITION DENIED.
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