Aaron Lamas Monroy v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 12, 2022
• Docket: 20-72741
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 12 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AARON LAMAS MONROY, No. 20-72741

Petitioner, Agency No. A079-387-054

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 5, 2022** Pasadena, California

Before: SILER,*** CALLAHAN, and FORREST, Circuit Judges.

Petitioner Aaron Lamas Monroy (“Petitioner” or “Monroy”), a native and

citizen of Mexico, appeals a final order issued by the Board of Immigration

* 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Appeals (“BIA”). Our jurisdiction is governed by 8 U.S.C. § 1252. We deny the

petition. The BIA found that in the absence of credible testimony, Monroy did not

establish his eligibility for withholding of removal and protection under the

Convention Against Torture (“CAT”). This decision is supported by substantial

evidence.

Monroy claims he is entitled to withholding of removal because he allegedly

suffered persecution at the hands of Mexican police, and CAT relief because he is

likely to be tortured if he returns to Mexico. Factual findings are reviewed under

the substantial evidence standard, “treating them as ‘conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.’” Lopez-

Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011) (quoting 8 U.S.C. §

1252(b)(4)(B)).

1. Preceding his general challenge, Monroy argues that he was wrongly

denied a competency hearing during his removal proceedings. We review this issue

for abuse of discretion. See Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017).

Monroy contends he was entitled to a competency hearing because of his alleged

mental disorder. Notably, he did not affirmatively request a hearing, nor did he

present indicia of incompetency. In effect, Monroy argues that the mere existence

of his alleged mental disorder provides evidence that he was wrongly deprived a

competency hearing prior to an adverse credibility finding.

2 While this court has recognized an Immigration Judge’s (“IJ”) duty to

provide a petitioner a competency hearing when that petitioner exhibits indicia of

incompetency, that duty did not arise here because Monroy lacked such indicia.

See Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1181–82 (9th Cir. 2018); see

also Mejia, 868 F.3d at 1121–22. The psychological report submitted by Monroy

offers nothing to suggest that his testimony was impaired by his mental disorder; in

fact, it stated “[h]is overall cognitive abilities appeared intact.” A claim of mental

illness, or a diagnosis of the same, does not automatically equate to a lack of

competency. Cf. Salgado v. Sessions, 889 F.3d 982, 987–88 (9th Cir. 2018)

(finding that the agency did not err by denying continuance based on the

petitioner’s “allegations of poor memory” as a result of a car accident where there

were no indicia of incompetency). Notwithstanding his alleged mental disorder, a

competency hearing was not warranted to establish safeguards before rendering a

credibility finding.

2. Next, Monroy challenges the BIA’s affirmation of the IJ’s adverse

credibility ruling. In assessing an adverse credibility finding under the REAL ID

Act, the court “must look to the ‘totality of the circumstances[] and all relevant

factors.’” Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc) (quoting

8 U.S.C. § 1158(b)(1)(B)(iii)). The IJ and BIA both reasonably found that Monroy

lacked credibility.

3 Monroy alleged numerous instances of being accosted by police in Mexico.

He told the immigration official conducting his reasonable fear interview that

police attacked him “five or six” times in 1998, but told the IJ that he was attacked

every three to six weeks over a period of five years. Adverse credibility

determinations can be based on “even minor inconsistencies.” Shrestha v. Holder,

590 F.3d 1034, 1044 n.4 (9th Cir. 2010). Five or six times in 1998 is quite

different from every three to six weeks over five years.

Monroy also expressed an unequivocal desire to remain in the United States,

stating “I honestly don’t want to go back to Mexico. I don’t have anything there.”

Compare this sentiment with the fact that Monroy did not express to immigration

officials that he feared returning to Mexico during immigration proceedings in

1999 or when he was deported in 2001. Not expressing a fear of returning to his

home country when first meeting with immigration officials goes to the heart of

Monroy’s petitioned relief. This is inconsistent with his claims of persecution and

this inconsistency “is of great weight.” Shrestha, 590 F.3d at 1046–47.

Additionally, Monroy’s explanations for these inconsistencies do not compel

reversal of the adverse credibility finding. See, e.g., Zamanov v. Holder, 649 F.3d

969, 974 (9th Cir. 2011). It is “only the most extraordinary circumstances [that]

justify overturning an adverse credibility determination.” Shrestha, 590 F.3d at

1041 (citation omitted). Those circumstances are not present here.

4 3. The adverse credibility determination is also dispositive of Monroy’s

application for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153,

1156 (9th Cir. 2003); see also Matter of M-S-, 21 I. & N. Dec. 125, 129 (BIA

1995) (concluding that a persecution claim that lacks veracity cannot satisfy the

burden of proof necessary to establish eligibility for withholding of removal).

Monroy’s petition for withholding of removal is not supported by credible

testimony, and the denial of his withholding of removal claim is supported by

substantial evidence.

4. Lastly, Monroy argues the BIA erred in finding him ineligible for

CAT protection. To be eligible for CAT relief a petitioner must demonstrate that

he or she would be more likely than not tortured upon returning to the country of

removal. 8 C.F.R. § 1208.16(c)(2); Abufayad v. Holder, 632 F.3d 623, 632 (9th

Cir. 2011). Further, a petitioner must demonstrate that he or she faces a

“particularized threat” of torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th

Cir. 2008). An adverse credibility determination, as found here, “is not necessarily

a death knell to CAT protection” but rather means that the petitioner must establish

eligibility for CAT protection through independent corroborating evidence instead

of discredited testimony. See Shrestha, 590 F.3d at 1048–49.

Monroy submitted country reports concerning generalized torture in Mexico,

but he does not demonstrate a “particularized threat” of torture as required. 8

5 C.F.R. § 1208.16(c)(2); see Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th

Cir. 2006). Monroy has not demonstrated that if removed to Mexico the Mexican

government will more likely than not torture him; he simply refers to generalized

violence in the country of removal. This is not enough. See Flores-Vega v. Barr,

932 F.3d 878, 887 (9th Cir. 2019).

The petition for review is DENIED. The temporary stay of removal remains

in place until issuance of the mandate. The motion for a stay of removal (Dkt. No.

1-3) is otherwise denied as moot.