Osny Lubin v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSNY LUBIN, AKA Assale Tomoko, No. 19-72764
Petitioner, Agency No. A209-168-618
v.
MEMORANDUM*
MERRICK GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2021**1F P
Pasadena, California
Before: SILER,*** HURWITZ, and COLLINS, Circuit Judges.
Osny Lubin, a native and citizen of Haiti, petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order of
*
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 Eugene E. Siler, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
an Immigration Judge (“IJ”) denying applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We deny
the petition.
1. Substantial evidence supports the BIA’s determination that Lubin failed
to establish eligibility for asylum and withholding of removal because the “totality
of the circumstances” showed he lacked credibility. Iman v. Barr, 972 F.3d 1058,
1062, 1064–65 (9th Cir. 2020). Lubin claimed to be the victim of two 2013 attacks
that caused him to leave Haiti for Brazil. He claimed to have left Brazil for the
United States after his cousin was shot and he experienced discrimination. The BIA
discerned no clear error in the IJ’s determination that Lubin was not credible. The
BIA noted multiple discrepancies between Lubin’s testimony, declaration, and
sworn statement to a Customs and Border Patrol officer. These included
inconsistencies regarding the circumstances surrounding the first attack, including
whether Lubin’s attackers were armed and whether he was taken to the hospital
following the incident; whether the attacks were related to a land dispute; Lubin’s
reasons for coming to the United States; and whether Lubin feared returning to
Haiti. A reasonable adjudicator would not be compelled to conclude that Lubin is
credible. See 8 U.S.C. § 1252(b)(4)(B). Absent the discredited testimony, Lubin
cannot meet his burden of establishing past persecution or a well-founded fear of
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future persecution on a protected ground, and his asylum and withholding claims
fail. See Rizk v. Holder, 629 F.3d 1083, 1091 (9th Cir. 2011).
2. Having found Lubin not credible, the BIA was not obligated to address
his arguments concerning resettlement. See INS v. Bagamasbad, 429 U.S. 24, 25
(1976) (“As a general rule courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results they reach.”).
3. Substantial evidence supports the BIA’s determination that Lubin failed
to establish eligibility for CAT protection. A CAT applicant “bears the burden of
establishing that [he] will more likely than not be tortured with the consent or
acquiescence of a public official if removed to [his] native country.” Xochihua-
Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Lubin presented no evidence
of past torture, and the IJ’s determination that there was insufficient evidence that
he would be tortured in the future by or with the acquiescence of any government is
supported by the record. Lubin testified that the private individuals who attacked
him remained at large, but presented no evidence that those individuals acted with
the consent or acquiescence of any government. The general references to country
conditions in his declaration and country reports do not compel a contrary conclusion
because they lack any relation to the land disputes and criminal attacks underlying
his claim.
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4. Nor does the BIA’s reference to its adverse credibility finding in the
context of Lubin’s CAT claim justify granting the petition. “An adverse credibility
determination is not necessarily a death knell to CAT protection.” Shrestha v.
Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). But, if the petitioner is “found not
credible, to reverse the BIA’s decision we would have to find that the reports alone
compelled the conclusion that [the petitioner] is more likely than not to be tortured.”
Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006). The reports in this
case fall far short of that high bar.
PETITION FOR REVIEW DENIED.
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