Jose Cruz-Guidos v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE OSCAR CRUZ-GUIDOS, No. 18-72007
Petitioner, Agency No. A200-572-389
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Jose Oscar Cruz-Guidos, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”),
as well as the BIA’s order denying his motion to reopen or remand removal
*
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).
proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review de novo due
process claims. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). We review
for abuse of discretion the BIA’s denial of a motion to reopen and remand.
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We review for
substantial evidence the agency’s factual findings, applying the standards
governing adverse credibility determinations created by the REAL ID Act.
Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010); Lin, 377 F.3d at 1023-
24. We deny the petition for review.
The BIA did not abuse its discretion in denying Cruz-Guidos’s motion to
reopen and remand where he failed to show prior counsel’s alleged ineffective
assistance prevented him from reasonably presenting his case. See Mohammed v.
Gonzales, 400 F.3d 785, 793 (9th Cir. 2005) (to prevail on an ineffective assistance
of counsel claim, petitioner must show he was prevented from reasonably
presenting his case because counsel failed to perform with sufficient competence).
Substantial evidence supports the agency’s adverse credibility determination
where Cruz-Guidos provided inconsistent testimony as to when he was last
threatened in El Salvador, and where he testified about a beating and threats that
were not included in his asylum application. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
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also Silva-Pereira v. Lynch, 827 F.3d 1176, 1186 (9th Cir. 2016) (distinguishing
the omission of trivial events from pivotal events which are crucial to claim).
Cruz-Guidos’s explanations do not compel a contrary conclusion. See Rizk v.
Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (the agency reasonably rejects an
alien’s explanation where it provides a “specific and cogent reason” for doing so);
Garcia v. Holder, 749 F.3d 785, 790 (9th Cir. 2014) (adverse credibility finding is
supported when despite being given the opportunity, an applicant fails to clarify or
explain inconsistent statements).
Because Cruz-Guidos failed to provide credible testimony or sufficient
supporting evidence, substantial evidence supports the agency’s denial of asylum
and withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003).
Substantial evidence also supports the agency’s denial of CAT relief because
it was based on the same testimony the agency found not credible, and Cruz-
Guidos points to no other evidence in the record that compels the conclusion that it
is more likely than not he will be tortured by or with the consent or acquiescence
of the government if returned to El Salvador. See id. at 1157.
PETITION FOR REVIEW DENIED.
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