Rita Carrion Garcia v. Eric Holder, Jr. , 749 F.3d 785 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RITA MARIA CARRION GARCIA, No. 12-73781
AKA Maria Burgos Martinez, AKA
Maria Castillo, AKA Maralena Agency No.
Castillo Cruz, A201-280-642
Petitioner,
v. OPINION
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 11, 2014—San Francisco, California
Filed April 16, 2014
Before: J. Clifford Wallace, M. Margaret McKeown,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
2 CARRION GARCIA V. HOLDER
SUMMARY*
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of withholding of removal and
protection under the Convention Against Torture.
The panel held that substantial evidence supported the
agency’s adverse credibility determination based on
petitioner’s various lies to U.S. officials and to the district
court judge, especially about her identity and country of
origin, and the fact that she equivocated about her prior
misrepresentations during her interview with the IJ.
The panel further held that the agency reasonably
concluded that the corroborating documents petitioner
submitted were not sufficient to rehabilitate her testimony, or
to support her domestic violence based withholding of
removal claim independently.
The panel deferred to the agency’s determination that
petitioner failed to qualify for CAT protection because the
evidence did not compel the conclusion that she was the
victim of domestic abuse.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CARRION GARCIA V. HOLDER 3
COUNSEL
Kari E. Hong, Supervising Attorney, and Mackenzie Houck
and Marija Ozolins (argued), Student Counsel, Boston
College Law School, Newton, Massachusetts, for Petitioner.
Tiffany L. Walters (argued), Ernesto H. Molina, Jr., Assistant
Director, and Dana M. Camilleri, Trial Attorney, Office of
Immigration Litigation; and Stuart F. Delery, Assistant
Attorney General, Civil Division, United States Department
of Justice, Washington, D.C., for Respondent.
OPINION
GOULD, Circuit Judge:
Petitioner Rita Maria Carrion Garcia, a native of the
Dominican Republic, petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the denial
of her application for withholding of removal and protection
under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the
petition for review.
I
Carrion Garcia gives the following account of her
personal history. She was born in Santo Domingo in the
Dominican Republic, where she lived with her parents until
age twenty-two, when she moved to live separately with her
children. Carrion Garcia’s relationship with the children’s
father ended in 2001, but her children moved to the United
4 CARRION GARCIA V. HOLDER
States to live with him in July 2010 after a robbery at Carrion
Garcia’s home.
Carrion Garcia met Ernesto Valdez in 2007, and they
began dating. Their relationship became intimate in 2008,
and she moved in with him in August 2010, after her children
had already moved to the United States. Their relationship
began to change in October 2010 when he started swearing at
her, calling her a “prostitute,” and spending time with new
friends who were using drugs. Valdez began physically
abusing Carrion Garcia in November 2010. The abuse was
extreme. He would hit her and kick her in the ribs and
stomach, and would rape and sodomize her when he returned
home drunk.
Valdez threatened Carrion Garcia, saying that he would
kill her if she left him or filed a police report against him.
Ashamed of the abuse and concerned by the threats made by
Valdez, Carrion Garcia did not consider filing a police report
challenging his abuse. Carrion Garcia also knew of a
neighbor who had been abused by her husband. When the
neighbor called the police, her husband was only held in jail
until the next day when he returned home and hit her again.
In January 2011, Carrion Garcia left Valdez to escape the
abuse. She traveled to three separate locations in the
countryside over the course of several weeks, staying with
friends and family, and each time Valdez found her,
apologized, and begged for her forgiveness. When she
refused his entreaties to return with him to Santo Domingo,
he became “furious,” threatened her, and frightened her.
Following the third such encounter, Carrion Garcia
returned to her mother’s home, and her mother helped gather
CARRION GARCIA V. HOLDER 5
money from relatives for Carrion Garcia to leave the
Dominican Republic. Because Carrion Garcia had a six-
month visa for Mexico, she decided to travel to Toluca,
Mexico, with a friend. They later traveled to Nogales,
Mexico, where Carrion Garcia was unable to find
employment, and she decided to enter the United States.
Carrion Garcia was caught trying to enter the United
States four times. She first entered the United States in May
2011 by crossing a border fence, and was caught by Customs
and Border Protection (“CBP”) officers. A CBP officer who
spoke Spanish interviewed her, and she did not have
difficulty conversing with him. She gave the CBP officer a
false name, date of birth, and claimed that she was Mexican.
Carrion Garcia later testified that she gave false information
so that she would not be returned to Santo Domingo. She
was removed to Mexico. Fifteen days later she crossed the
border again and was immediately apprehended by CBP
officers. Carrion Garcia gave the same false information to
the Spanish-speaking CBP officer who interviewed her, and
claimed that her parents were Mexican citizens. The same
events transpired on her third attempted entry into the United
States.
On her fourth attempt to enter the United States, Carrion
Garcia was again apprehended by CBP officers, and
interviewed by a Spanish-speaking officer. She gave again
false identifying information, and was taken to Tucson where
she was detained for three days. Carrion Garcia then
appeared in U.S. District Court represented by a Spanish-
speaking attorney. Carrion Garcia gave her attorney a false
name and told her she was from Mexico. A Spanish
interpreter was also present during her court appearance, and
Carrion Garcia acknowledged that she understood both her
6 CARRION GARCIA V. HOLDER
attorney and the proceedings. Although the district court
judge told Carrion Garcia that she must tell the truth, Carrion
Garcia gave the false name to the judge and said that she was
from Mexico so that she would not be sent back to the
Dominican Republic. Carrion Garcia was convicted of illegal
reentry and spent thirty days in jail, after which she was
returned to Nogales. However, a Mexican border patrol
officer who reviewed her information discovered that Carrion
Garcia was not from Mexico. She then claimed that she was
from El Salvador, and was brought to the detention center in
Eloy, Arizona.
After a “reasonable fear” interview, the Department of
Homeland Security referred Carrion Garcia’s withholding of
removal application to an immigration judge (“IJ”). Carrion
Garcia presented additional evidence to support her
withholding of removal and CAT claims, including: her
mother’s affidavit, a police report filed by her mother on June
2, 2012, and an affidavit “from a third person who resided in
the Dominican Republic” and who now lives in New York.
Also, Carrion Garcia submitted the expert testimony of Dr.
Wayne Westhoff regarding family violence and women’s
health in the Dominican Republic. Dr. Westhoff testified that
domestic violence in the Dominican Republic is widespread,
and that police are “uninterested in being of assistance
because of the cultural aspect of not interfering with domestic
or family issues.” A country report submitted by Carrion
Garcia supports Dr. Westhoff’s expert opinions. After a
hearing and in consideration of the evidence presented, the IJ
found that Carrion Garcia was not credible, and denied her
application for withholding of removal and protection under
the CAT. The BIA affirmed the denial of relief.
CARRION GARCIA V. HOLDER 7
II
We review factual findings, including adverse credibility
determinations, for substantial evidence. Shrestha v. Holder,
590 F.3d 1034, 1048 (9th Cir. 2010). Factual findings “are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); see Smolniakova v. Gonzales, 422 F.3d
1037, 1044 (9th Cir. 2005). This standard is very deferential,
requiring only “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation
omitted). Because the BIA affirmed the IJ’s findings of fact
while adding its own reasons, we review both decisions.
Chand v. INS, 222 F.3d 1066, 1072 n.7 (9th Cir. 2000). We
review questions of law de novo. De Martinez v. Ashcroft,
374 F.3d 759, 761 (9th Cir. 2004).
III
We first address the adverse credibility determination
made by the IJ and affirmed by the BIA, which affects both
of Carrion Garcia’s claims. After the enactment of the REAL
ID Act, a trier of fact may base an adverse credibility
determination on the “totality of the circumstances,”
including, for example, the applicant’s responsiveness,
consistency between written and oral statements, the internal
consistency of those statements, and any inaccuracies or
falsehoods “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s
claim, or any other relevant factor.” Shrestha, 590 F.3d at
1039–40 (quoting 8 U.S.C. §§ 1158(b)(1)(B)(iii)). The IJ
“must provide a specific cogent reason for the adverse
credibility finding,” Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.
8 CARRION GARCIA V. HOLDER
2002) (internal quotation marks and citation omitted), but we
will only overturn the IJ’s conclusion when “the evidence
compels a contrary result.” Monjaraz-Munoz v. INS,
327 F.3d 892, 895 (9th Cir. 2003).
Here, substantial evidence supports the IJ’s adverse
credibility determination, which the BIA affirmed. The IJ
based his determination mainly on two factors. The first was
Carrion Garcia’s various lies to U.S. officials and to the
district court judge, especially about her identity and country
of origin. The second was that she equivocated during her
interview with the IJ. These factors are generally sufficient
to support an adverse credibility determination. See Don v.
Gonzales, 476 F.3d 738, 741 n.5 (9th Cir. 2007) (“Admission
of prior dishonesty can support an adverse credibility
determination.”).
Although Carrion Garcia claims that she cannot
remember whether the four CBP officials told her to tell the
truth, it is evident that she understood that she was lying in
each interview. She also lied to her attorney and to the
district court judge, who had made it clear to Carrion Garcia
that she was under oath.
Carrion Garcia argues that the nature of her withholding
claim—based on physical and sexual abuse—did not
sufficiently inform the IJ’s and BIA’s consideration of her
falsehoods. See Kebede v. Ashcroft, 366 F.3d 808, 811 (9th
Cir. 2004); Paramasamy v. Ashcroft, 295 F.3d 1047, 1052–53
(9th Cir. 2002) (describing the particular difficulties that
many rape victims face in relating their assaults). However,
the IJ did acknowledge her assertion that she gave false
information to the CBP officers “for fear that she would be
returned to the Dominican Republic.” Although the IJ did not
CARRION GARCIA V. HOLDER 9
explicitly refer to the sexual abuse, the record shows that he
understood the situation and the nature of Carrion Garcia’s
alleged fears regarding the abuse. For example, he stated:
“To be sure, the Court must take into account the context of
her misrepresentations in assessing the weight to be given to
the misrepresentations.” These acknowledgments of Carrion
Garcia’s particular situation significantly undermine her
assertion that the IJ and BIA did not properly take account of
the difficulties associated with reporting sexual abuse.
Apart from her misrepresentations to the CBP officers and
those made during the district court proceedings, the IJ’s
adverse credibility determination is also supported by her
equivocations during the interview, which the IJ called “a
substantial basis for finding her not credible.” Carrion Garcia
argues that she was not making denials or equivocations, but
rather that “she was forthright about her prior
misrepresentations.” But while the record might possibly be
interpreted in that way, it falls far short of compelling the
conclusion that Carrion Garcia was forthright. Carrion
Garcia stated repeatedly that the CBP officers asked her for
“name, date of birth, and just common questions . . . and
that’s it.” But once the IJ pointed out that CBP officers are
also required to ask about potential grounds for asylum or
other discretionary relief, she claimed that she did not
remember whether she had been asked such questions.
Beyond such equivocations, the IJ also noted that the
additional “statements are critical portions of the Border
Patrol interviews,” and he seriously doubted that four
separate officers on four separate occasions would omit the
statements, and thought she should have remembered the
statements that pertained so directly to her situation. This
conclusion is reasonable and the record does not compel a
different interpretation.
10 CARRION GARCIA V. HOLDER
Carrion Garcia further asserts that she was not given “an
opportunity to explain the inconsistencies on which [the IJ]
would base her adverse credibility determination” as required
by Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir.
2009). An IJ should give fair notice of inconsistencies in
testimony or points on which the IJ thinks the witness is not
being responsive. See Joseph v. Holder, 600 F.3d 1235,
1244–45 (9th Cir. 2010); Soto-Olarte, 555 F.3d at 1092. But
here the record shows that the IJ continually asked questions
to clarify what Carrion Garcia meant by her inconsistent
answers, such as: “Are you telling me that none of the four
officers told you that?” and “So you’re telling me they did not
say that, or that you don’t remember whether they said it?”
The IJ also explicitly asked Carrion Garcia about her
misrepresentations to the CBP officers and to the district
court. Carrion Garcia was given many opportunities to
clarify or explain her inconsistent statements, but she did not
do so. The principle that we voiced in Soto-Olarte is not
applicable.
We hold that substantial evidence supports the IJ’s and
the BIA’s adverse credibility determinations. Carrion Garcia
suggests plausible alternatives to the IJ’s conclusion. Yet she
cannot show that the record compels a different
interpretation, and that is fatal to her challenge to the adverse
credibility determination.
IV
To qualify for withholding of removal, an applicant must
show a “clear probability” of future persecution. Alvarez-
Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003). That
persecution must be apparent from objective evidence,
Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.
CARRION GARCIA V. HOLDER 11
1985), and must be “on account of” one of the statutorily
enumerated grounds: race, religion, nationality, political
opinion, or membership in a particular social group, INS v.
Elias-Zacarias, 502 U.S. 478, 480 (1992). A petitioner
carries the burden of persuading the fact finder that the
evidence offered is credible. Mejia-Paiz v. INS, 111 F.3d
720, 722 (9th Cir. 1997).
Substantial evidence supports the IJ’s and the BIA’s
denial of relief under withholding of removal because Carrion
Garcia cannot overcome the adverse credibility
determination. The IJ considered the additional corroborating
documents presented by Carrion Garcia and found them
“insufficient to rehabilitate [Carrion Garcia’s] testimony”
because the preparers, her mother and the man from the
Dominican Republic living in New York, were not available
for cross examination and the authenticity of the documents
relied on Carrion Garcia’s discredited testimony. These
documents do not reveal any independent knowledge of
Carrion Garcia’s alleged abuse. The IJ and BIA reasonably
concluded that the documents were not sufficient to
rehabilitate Carrion Garcia’s testimony, or to support a
withholding of removal claim independently. The record
does not compel a conclusion to the contrary and so her claim
for withholding of removal fails.
V
Finally, we turn to Carrion Garcia’s claim that she is
entitled to protection under the CAT. The CAT “provides
that a signatory nation will not expel, return . . . or extradite
a person to another country where there are substantial
grounds for believing that he would be in danger of being
subjected to torture.” Al-Saher v. INS, 268 F.3d 1143, 1146
12 CARRION GARCIA V. HOLDER
(9th Cir. 2001) (internal quotation marks and citation
omitted) (omission in original), amended by 355 F.3d 1140
(9th Cir. 2004). To qualify for CAT relief, an applicant must
establish that “he [or she] is more likely than not to suffer
intentionally-inflicted cruel and inhuman treatment” if
removed. Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir.
2005) (citation omitted).
An adverse credibility determination does not, by itself,
necessarily defeat a CAT claim, Kamalthas v. INS, 251 F.3d
1279, 1282–83 (9th Cir. 2001), because CAT claims are
“analytically separate” from claims for withholding of
removal. Id. at 1283. Rather, in determining whether a
petitioner will more likely than not be tortured if returned to
his or her home country, “all evidence relevant to the
possibility of future torture shall be considered.” 8 C.F.R.
§ 1208.16(c)(3). Kamalthas only requires that a petitioner
have the opportunity to introduce additional “documentary
evidence of torture,” and that the IJ and BIA consider all the
evidence presented. Almaghzar v. Gonzales, 457 F.3d 915,
921–22 (9th Cir. 2006). Contrary to Carrion Garcia’s
assertion, we do not require that “the BIA . . . discuss each
piece of evidence submitted.” Cole v. Holder, 659 F.3d 762,
771 (9th Cir. 2011). Unless clear indications exist that the IJ
or BIA did not consider the documentary evidence, general
language that the agency “considered all the evidence before
[it]” is sufficient. Id. at 771 (quoting Almaghzar, 457 F.3d at
922) (alteration in original).
Nothing demonstrates that the BIA neglected to consider
all of the evidence before it. Carrion Garcia’s adverse
credibility determination undermines both her own testimony
and the external evidence reliant on it, including most of the
police report filed by her mother, her mother’s affidavit, and
CARRION GARCIA V. HOLDER 13
the affidavit of the New York man familiar with her situation,
all of which were derived from her own assertions. None of
these sources shows independent, first-hand knowledge of
Carrion Garcia’s alleged domestic abuse, and Carrion Garcia
submitted no independent corroborating evidence such as
medical records, police investigative reports or witness
statements. In circumstances such as these, the BIA’s general
language that “there is no evidence in the record that the
applicant was ever tortured in the Dominican Republic, or
that she faces a clear probability of torture” is sufficient to
demonstrate that all evidence was considered. To say that
there is “no evidence in the record” clearly implies that the
BIA has looked at all of the evidence in the record. Dr.
Westhoff’s expert testimony and the country report, although
supporting the conclusion that domestic violence is a
widespread problem in the Dominican Republic, do not
compel the conclusion that Carrion Garcia in particular was
a victim. As such, we defer to the IJ and BIA’s conclusion
that relief under the CAT is unavailable. See Almaghzar,
457 F.3d at 922–23.
VI
Carrion Garcia did not show that the record compels the
conclusion that the IJ and BIA erred in reaching the adverse
credibility determination. Because her testimony and the
evidence reliant on it are not credible, and she presents no
independent evidence corroborating that she was a victim of
the alleged domestic abuse at the hand of Valdez, we
conclude that the denial of relief by the BIA was permissible
under the law, and we decline to remand for further
proceedings.
PETITION FOR REVIEW DENIED.