Pedro Alvarez-Campos v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO ALVAREZ-CAMPOS; ALISON No. 19-70734
NAYELI ALVAREZ-RODRIGUEZ;
ANDERSON CRISTOFER ALVAREZ- Agency Nos. A208-680-493
ROGDRIGUEZ; GUADALUPE DEL A208-678-570
CARMEN RODRIGUEZ-PALACIOS, A208-678-571
A208-680-492
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 14, 2022
Pasadena, California
Before: CALLAHAN and VANDYKE, Circuit Judges, and ARTERTON,**
District Judge.
Petitioners Pedro Alvarez-Campos (“Alvarez-Campos”), his wife Guadalupe
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Janet Bond Arterton, United States District Judge for the District
of Connecticut, sitting by designation.
Del Carmen Rodriguez-Palacios (“Rodriguez-Palacios”), and their two minor
children petition for review of a decision of the Board of Immigration Appeals
(“BIA”) affirming the order of an Immigration Judge denying their applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition
as to Alvarez-Campos’s application but grant the petition as to Rodriguez-Palacios’s
application.
I. Due Process
“We review de novo … claims of due process violations in immigration
proceedings.” Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889 (9th Cir. 2018).
“The Due Process Clause of the Fifth Amendment guarantees that aliens in removal
proceedings have a full and fair opportunity to be represented by counsel, to prepare
an application for relief, and to present testimony and other evidence in support of
that application.” Guan v. Barr, 925 F.3d 1022, 1032 (9th Cir. 2019) (cleaned up).
Alvarez-Campos and Rodriguez-Palacios filed separate applications for
asylum, withholding of removal, and CAT protection. Rodriguez-Palacios was also
listed as a derivative applicant on Alvarez-Campos’s application. At the only merits
hearing, the Immigration Judge made clear that the parties were “going forward
only” on Alvarez-Campos’s application and that consideration of Rodriguez-
Palacios’s application was “reserved” for later “if necessary.” Rodriguez-Palacios
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participated in the hearing as a witness, but her testimony was limited to only “a few
specific issues.” And though the Immigration Judge expressed credibility concerns,
Rodriguez-Palacios was never given an opportunity to explain her testimony. Nor
was she afforded an opportunity to present evidence. Despite all this, the
Immigration Judge issued a decision denying Rodriguez-Palacios’s application
without conducting a hearing on her application and affording her an opportunity to
present testimony and evidence in support of that application. This was a violation
of her due process rights. See Guan, 925 F.3d at 1032.1
II. Adverse Credibility
“We review the denial of asylum, withholding of removal and CAT claims for
substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019). Likewise, “[w]e review factual findings, including adverse credibility
determinations, for substantial evidence.” Lalayan v. Garland, 4 F.4th 822, 826 (9th
Cir. 2021) (cleaned up). “[T]here is no presumption that an applicant for relief is
credible, and the [Immigration Judge] is authorized to base an adverse credibility
determination on ‘the totality of the circumstances’ and ‘all relevant factors.’” Ling
Huang v. Holder, 744 F.3d 1149, 1152–53 (9th Cir. 2014) (quoting 8 U.S.C.
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At Rodriguez-Palacios’s merits hearing, the Immigration Judge must reassess her
credibility based on “the totality of the circumstances, and all relevant factors,”
which may include the testimony she provided during Alvarez-Campos’s hearing. 8
U.S.C. § 1158(b)(1)(B)(iii); see Silva-Pereira v. Lynch, 827 F.3d 1176, 1187 (9th
Cir. 2016); Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007).
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§ 1158(b)(1)(B)(iii)).
Inconsistencies permeate Alvarez-Campos’s application, declaration, and
testimony. He claimed to have been attacked in his home by members of Mara 18
but his testimony was inconsistent—both internally and with Rodriguez-Palacios’s
testimony—about (1) the number of men who attacked him and his family, (2) how
the men were dressed, and (3) whether and how the men entered his home. While
inconsistencies need not “go to the heart of the applicant’s claim,” Li v. Garland, 13
F.4th 954, 958 (9th Cir. 2021) (cleaned up), here they do and are thus
“doubtless … of great weight,” Shrestha v. Holder, 590 F.3d 1034, 1047 (9th Cir.
2010); see Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011). Even assuming
that Alvarez-Campos’s explanations for the inconsistencies were “plausible,” none
is sufficiently compelling to require crediting his testimony. See Zamanov, 649 F.3d
at 974. Nor does his other evidence sufficiently corroborate his story. Substantial
evidence thus supports the Immigration Judge’s denial of Alvarez-Campos’s asylum
application. See Duran-Rodriguez, 918 F.3d at 1028.
To qualify for withholding of removal, Alvarez-Campos must satisfy a more
stringent standard and demonstrate that it is “more likely than not” he would be
persecuted on account of a protected ground if returned to El Salvador. 8 C.F.R.
§ 1208.16(b)(2). Because he has not established eligibility for asylum, “he
necessarily fails to satisfy the more stringent standard for withholding of removal.”
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Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004).
Finally, to qualify for relief under CAT, Alvarez-Campos must demonstrate
that he would more likely than not be tortured if removed to El Salvador. See 8
C.F.R. § 1208.16(c)(2). His claim for CAT protection is based on the same evidence
as his asylum and withholding claims. But Alvarez-Campos was properly found to
lack credibility. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). And
the remaining evidence does not, standing alone, compel the conclusion that he
would more likely than not be tortured if returned to El Salvador. See Almaghzar v.
Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006).
PETITION GRANTED IN PART AND DENIED IN PART.
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