Edward Marroquin-Sanchez v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
APR 26 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD ELENILSON MARROQUIN- No. 16-72443
SANCHEZ,
Agency No. A205-989-919
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2022**
Pasadena, California
Before: MURGUIA, Chief Judge, and GRABER and BEA, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge BEA.
Petitioner Edward Marroquin-Sanchez, a native and citizen of El Salvador,
seeks review of the order of the Board of Immigration Appeals (“BIA”) that denied
*
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).
his applications for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review factual findings for substantial evidence and legal conclusions
de novo. Shrestha v. Holder, 590 F.3d 1034, 1039, 1048 (9th Cir. 2010). We deny
the petition in part and grant and remand in part.
1. The BIA relied solely on the immigration judge’s (“IJ”) adverse
credibility finding to reject Petitioner’s claims for asylum and withholding. To
sustain the IJ’s finding the BIA relied on four inconsistencies.
(a) As to whether Petitioner lived on San Barolome or Santa Tecla
immediately before traveling to the United States, the IJ incorrectly found that
Petitioner failed to provide an explanation, when in fact he provided a facially
plausible explanation.
(b) As to whether Petitioner lived at one or two addresses, the BIA erred in
relying on this inconsistency because the IJ did not do so. See Zumel v. Lynch,
803 F.3d 463, 475 (9th Cir. 2015) (“[T]he BIA may not make its own findings or
‘rely on its own interpretation of the facts.’” (citation omitted)).
(c) Petitioner testified that he moved to Santa Tecla in late 2010 or early
2011 and experienced a period of calm there for about a year. In context, whether
Petitioner moved from San Bartolome to Santa Tecla in November 2010 or
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February 2011 is a trivial difference that does not support an adverse credibility
finding. See Bandari v. I.N.S., 227 F.3d 1160, 1166 (9th Cir. 2000) (“Any alleged
inconsistencies in dates that reveal nothing about a petitioner’s credibility cannot
form the basis of an adverse credibility finding.”).
(d) That recitation leaves only the question whether members of the MS-13
gang threatened Petitioner in February or March of 2012, an event to which
Petitioner testified but which he did not report in his credible fear interview. In
reviewing an adverse credibility finding, we look to the totality of the
circumstances. Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc).
“In Alam, we declined to draw a bright line or engage in a number-counting
analysis, instead noting that no specific number of inconsistencies requires
sustaining or rejecting an adverse credibility determination.” Kumar v. Garland,
18 F.4th 1148, 1155 (9th Cir. 2021). In Kumar, as here, the BIA identified four
factors underlying an adverse credibility finding, 18 F.4th at 1153, and we
concluded that most of those factors were not supported by the record, Id.
Accordingly, we remanded to the BIA to decide in the first instance whether the
remaining factors supported the adverse credibility finding. Id. at 1156. We
follow the same path here.
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2. The BIA relied in part on the adverse credibility determination in
concluding that Petitioner did not establish CAT eligibility. Because the BIA did
not determine whether Marroquin-Sanchez’s CAT claim would fail even if the
adverse credibility determination could not be sustained, we also remand the CAT
claim. See Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1046 n.5 (9th Cir. 2008)
(remanding CAT claim where adverse credibility determination could not be
sustained and the BIA never determined whether, “if petitioner were believed, [he]
has presented . . . sufficient evidence to support a grant of . . . CAT relief”).
3. We reject Petitioner’s due process claim. He has not shown that his
proceedings were “so fundamentally unfair that [he] was prevented from
reasonably presenting his case.” Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.
2000) (quoting Platero–Cortez v. I.N.S., 804 F.2d 1127, 1132 (9th Cir. 1986)).
Petition DENIED in part, GRANTED and REMANDED in part. Each
party shall bear its own costs.
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FILED
APR 26 2022
Bea, J., concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with my colleagues in full as to Petitioner’s due process claim, which
I would reject for the reasons given in the memorandum disposition. As to
Petitioner’s asylum and withholding claims, I agree with much of my colleagues’
analysis but not with their conclusion. And conversely, as to Petitioner’s CAT
claim, I agree with my colleagues’ conclusion but not with their analysis.
As to Petitioner’s asylum and withholding claims, I agree with my
colleagues’ assessment of the first, second, and fourth inconsistencies in
Petitioner’s evidence. As to the third inconsistency (which concerns when
Petitioner moved within El Salvador from San Bartolome Santa Tecla to avoid
threats from the gangs), I agree that “minor inconsistencies regarding non-material
and trivial details . . . cannot form the exclusive basis for an adverse credibility
determination.” Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). But
“[m]indful of the legitimate impact that even minor inconsistencies may have on
credibility,” Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir. 2010), we should
not ignore that inconsistency entirely when evaluating the BIA’s adverse
credibility finding. We must consider the “‘the totality of the circumstances’ and
‘all relevant factors.’” Huang v. Holder, 744 F.3d 1149, 1152–53 (9th Cir. 2014)
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).
And as for how to resolve the asylum and withholding claims, I would hold
that notwithstanding the BIA’s errors, substantial evidence supports the BIA’s
adverse credibility determination and that remand is unnecessary. In my view, the
third and the fourth inconsistency in Petitioner’s evidence, when considered
together, provide substantial evidence in support of the BIA’s adverse credibility
finding. The fourth inconsistency concerns an event pivotal to Petitioner’s claims:
whether gang members threatened his life in February 2012 or whether he received
no threats from gang members between 2010 and 2013. “[W]hen an inconsistency
is at the heart of the claim it doubtless is of great weight.” Shrestha, 590 F.3d at
1047. Indeed, we have previously held that substantial evidence supports an
adverse credibility finding that, like the BIA’s here, was based on a petitioner’s
omission of a single “crucial” event from their testimony. See Kin v. Holder, 595
F.3d 1050, 1057 (9th Cir. 2010).
As to Petitioner’s CAT claim, I agree that we must grant the petition but for
reasons different than the majority gives. “We do not permit an IJ to use ‘a
negative credibility determination in the asylum context to wash over the CAT
claim, especially when the prior adverse credibility determination is not necessarily
significant’ to the torture claim.” Singh v. Lynch, 802 F.3d 972, 977 (9th Cir.
2015) (quoting Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001)), overruled
on other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021). However, the
agency may deny CAT relief based on an adverse credibility determination
developed in the asylum context if “a petitioner’s ‘claims under the [CAT] are
based on the same statements . . . that the BIA determined to be not credible’ in the
asylum context.” Id. (quoting Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.
2003)). Here, the inconsistences in Petitioner’s testimony were unrelated to his
CAT claim. And as I read the BIA’s decision, it considered the adverse credibility
determination sufficient reason “not [to] reach the merits” of Petitioner’s CAT
claim, and the BIA thus erroneously allowed that adverse credibility determination
to wash over the CAT claim.