Zuliema Guerrero-Esperanza v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZULIEMA DOLORES GUERRERO- No. 18-73402
ESPERANZA, AKA Dolores Zuliema
Guerrero-Esperanza; et al., Agency Nos. A208-905-534
A208-905-533
Petitioners, A208-905-604
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 2, 2021
Pasadena, California
Before: TALLMAN and OWENS, Circuit Judges, and CHRISTENSEN, ** District
Judge.
Zuliema Dolores Guerrero-Esperanza and her children, Ariel Eliseo
Vasquez-Guerrero and Daniel Enrique Vasquez-Guerrero (“the Guerreros”),
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
natives and citizens of El Salvador, petition for review of the Board of Immigration
Appeals’ (“BIA”) denial of their applications for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). The BIA affirmed
the Immigration Judge’s (“IJ”) adverse credibility determination as to both
Zuliema and Daniel and held the Guerreros waived review of their CAT claim. As
the parties are familiar with the facts, we do not recount them here. We deny the
petition for review as to Zuliema. We grant the petition and remand as to Daniel.1
Substantial evidence supports the BIA’s adverse credibility determination as
to Zuliema. Zuliema was inconsistent when describing a specific incident of abuse
by her ex-husband and her inability to consistently recall important facts that go to
the “heart of [her] claim” is given “great weight” when determining credibility.
Manes v. Sessions, 875 F.3d 1261, 1264 (9th Cir. 2017) (per curiam) (citation
omitted). Her testimony included new facts that were not mere “details,” but that
provided a “more compelling . . . story of persecution.” Silva-Pereira v. Lynch,
827 F.3d 1176, 1185 (9th Cir. 2016) (internal quotation marks and citation
omitted). The IJ also appropriately relied on Zuliema’s demeanor during
testimony. See Qiu v. Barr, 944 F.3d 837, 843 (9th Cir. 2019).
Substantial evidence does not support the BIA’s adverse credibility
1
Although Zuliema included both her sons in her application, Daniel also filed a
separate application.
2
determination as to Daniel. First, whether Daniel experienced problems while in
school is a “non-material, trivial detail[].” Singh v. Holder, 643 F.3d 1178, 1180
(9th Cir. 2011) (citation omitted). And Daniel’s explanation for the inconsistency
was reasonable after review of the record and because his hearing was conducted
through a translator. See Li v. Holder, 559 F.3d 1096, 1100 n.4 (9th Cir. 2009).
Second, the IJ’s implausibility findings for the second police encounter and
gang members incident were “fatally flawed.” Cui v. Holder, 712 F.3d 1332, 1336
(9th Cir. 2013) (citation omitted). The IJ either mischaracterized Daniel’s
testimony or based its implausibility findings on improper speculation and
conjecture. See Zhi v. Holder, 751 F.3d 1088, 1093 (9th Cir. 2014).
Lastly, the BIA properly held the CAT claim was waived because the
Guerreros did not sufficiently raise it before the BIA. See Alanniz v. Barr, 924
F.3d 1061, 1068-69 (9th Cir. 2019). Parada’s exception does not apply because
the BIA did not address the merits of the CAT claim. See Parada v. Sessions, 902
F.3d 901, 914 (9th Cir. 2018).
PETITION FOR REVIEW DENIED as to Zuliema Dolores Guerrero-
Esperanza.
PETITION FOR REVIEW GRANTED as to Daniel Enrique Vasquez-
Guerrero; REMANDED.
3