Walter Funes-Acevedo v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER BLADIMIR FUNES- No. 19-70550
ACEVEDO, AKA Walter Fuentes-Acevedo,
Agency No. A206-899-076
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Walter Bladimir Funes-Acevedo, a native and citizen of El Salvador,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
application for withholding of removal and relief under the Convention Against
*
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).
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, applying the standards
governing adverse credibility determinations under the REAL ID Act. Shrestha v.
Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We review de novo claims of due
process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738
(9th Cir. 2014). We deny the petition for review.
We do not consider Funes-Acevedo’s asylum claim because the BIA did not
decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.
2011) (review limited to the grounds relied on by the BIA), and Funes-Acevedo
does not contend the BIA erred in finding that his asylum claim was not properly
before it, see Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013)
(failure to contest issue in opening brief resulted in waiver).
Substantial evidence supports the agency’s adverse credibility determination
based on discrepancies between Funes-Acevedo’s declaration and testimony as to
the threats and harm he experienced in El Salvador and his failure to provide
corroborating evidence. See Shrestha, 754 F.3d at 1048 (adverse credibility
determination reasonable under “the totality of circumstances”). Funes-Acevedo’s
explanations do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241,
1245 (9th Cir. 2000). Substantial evidence also supports the finding that Funes-
Acevedo did not present documentary evidence that would otherwise establish his
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eligibility for relief. See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014)
(petitioner’s documentary evidence was insufficient to independently support
claim). Thus, in the absence of credible testimony, Funes-Acevedo’s withholding
of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003).
Substantial evidence also supports the agency’s denial of Funes-Acevedo’s
CAT claim because it was based on the same evidence found not credible, and he
does not point to any other record evidence that compels the conclusion that it is
more likely than not he would be tortured by or with the consent or acquiescence
of the government if returned to El Salvador. See Shrestha, 754 F.3d at 1048-49.
Funes-Acevedo’s contention that the IJ violated his right to due process by
refusing to admit untimely exhibits, and his claim of IJ bias, fail. See Lata, 204
F.3d at 1246 (requiring substantial error and prejudice to prevail on a due process
claim); see also Rivera v. Mukasey, 508 F.3d 1271, 1276 (9th Cir. 2007) (bias
cannot be basis for denial of application where factual record supports denial).
As stated in the court’s May 9, 2019 order, the stay of removal remains in
place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
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