Pedro Alvarez-Campos v. Merrick Garland ( 2022 )


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  •                              NOT FOR PUBLICATION                          FILED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
    2
    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.
    1
    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).
    3
    § 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.”
    4
    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.
    5