Edwin Garcia-Maldonado v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN GIOVANN GARCIA- No. 17-72200
MALDONADO,
Agency No. A206-093-995
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 5, 2020**
Pasadena, California
Before: M. SMITH, BADE, and BRESS, Circuit Judges.
Edwin Giovann Garcia-Maldonado, a native and citizen of Guatemala,
petitions for review of an order of the Board of Immigration Appeals (BIA)
affirming the decision of an immigration judge (IJ) denying his claims for asylum
*
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).
and withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252 and
deny the petition.
1. We review the agency’s adverse credibility determination for
substantial evidence and will not reverse unless the record compels a contrary
conclusion. See Halim v. Holder, 590 F.3d 971, 975 (9th Cir. 2009).
Inconsistencies and omissions in a petitioner’s testimony can support an adverse
credibility determination. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1185-86 (9th
Cir. 2016); Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010). The IJ found
that Garcia-Maldonado’s testimony regarding the threats directed at him conflicted
with the statements he made during his credible fear interview and in his affidavit
supporting his asylum application. The IJ also found that Garcia-Maldonado’s
statements during his credible fear interview and in his affidavit omitted significant
details regarding the threats directed at his father about which he later testified at
the merits hearing. The BIA upheld the IJ’s conclusion that these inconsistencies
and omissions supported an adverse credibility determination, and we agree. The
record shows that Garcia-Maldonado’s testimony regarding the threats directed at
him and his father materially differed from his earlier statements to the asylum
1
Garcia-Maldonado did not challenge the agency’s denial of his requests for
protection under the Convention Against Torture and for humanitarian relief.
Thus, he waived those claims. See Jie Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th
Cir. 2013).
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officer and from his affidavit.
An adverse credibility determination can also be supported by a petitioner’s
embellishment of his case. See Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir.
2011). The BIA upheld the IJ’s finding that Garcia-Maldonado embellished his
case regarding the number of threats that he received before he left Guatemala.
The record does not compel a contrary conclusion. Between his statements to an
asylum officer during his credible fear interview, his affidavit in support of his
asylum application, and his testimony during the merits hearing, Garcia-
Maldonado progressively increased the number of threats that he purportedly
received while living in Guatemala. In so doing, Garcia-Maldonado told “a much
different—and more compelling—story of persecution than his initial application
and testimony before the asylum officer,” id., justifying an adverse credibility
determination, see Halim, 590 F.3d at 976.
Without Garcia-Maldonado’s credible testimony, there is insufficient
evidence in the record for him to meet his burden of proving eligibility for
asylum.2
2
By affirming the IJ’s adverse credibility determination, it is apparent that
the BIA intended to deny relief on that basis. Even if its decision were ambiguous,
however, we would look to the IJ’s decision, see Morgan v. Mukasey, 529 F.3d
1202, 1206 (9th Cir. 2008), which expressly held that “[w]ithout respondent’s non-
credible testimony, the remainder of his evidence does not establish eligibility for
asylum.”
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2. Even assuming Garcia-Maldonado testified credibly, we reject his
argument that he is entitled to asylum based on membership in a particular social
group. Substantial evidence supports the agency’s determination that
“Guatemalans who are targeted by gangs because they witnessed family members
killed and cooperated with law enforcement” is not a cognizable social group
because the proposed group does not meet the particularity or social distinction
requirements.3 See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016)
(explaining that to show membership in a particular social group, “[t]he applicant
must ‘establish that the group is (1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,
237 (BIA 2014))).
The agency reasonably concluded that Garcia-Maldonado’s proposed social
group lacks particularity because it is amorphous and lacks definable boundaries
and limits as to what constitutes “cooperation” with law enforcement. And
substantial evidence supports the agency’s finding that the proposed group is not
distinct. Compare Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020)
3
The agency also found that the proposed social group failed because it was
defined in part by the harm suffered. Because we conclude that substantial
evidence supports the agency’s rejection of the proposed social group for lack of
particularity and social distinction, we do not reach that finding.
4
(holding proposed group of Guatemalans who “report the criminal activity of
gangs to the police” was not distinct), with Henriquez-Rivas v. Holder, 707 F.3d
1081, 1091-93 (9th Cir. 2013) (en banc) (holding proposed group of Salvadorans
“who testified in court against gang members” was distinct).
Additionally, substantial evidence supports the agency’s finding that Garcia-
Maldonado is ineligible for asylum because he failed to establish the requisite
nexus between his persecution and proposed social group. Substantial evidence
supports the BIA’s determination that his alleged persecution was not based on
membership in any social group, but because he reported a specific crime.
3. Because Garcia-Maldonado did not establish membership in a
proposed social group, his withholding of removal claim necessarily fails. See
Conde Quevedo, 947 F.3d at 1242.
PETITION DENIED.
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