NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 19-1790 _____________
ABEL PEREZ BORGES, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _____________
On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A216-282-345) Immigration Judge: Kuyomars Q. Golparvar ___________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 27, 2020 ___________
Before: CHAGARES, RESTREPO, and BIBAS, Circuit Judges.
(Opinion Filed: January 30, 2020)
___________
OPINION * ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.
Abel Perez-Borges 1 petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of his applications for
asylum and withholding of removal and rejecting his argument that he is entitled to relief
under the Cuban Adjustment Act (“CAA”). Perez-Borges also contends that he should
have been granted parole. For the following reasons, we will deny the petition.
I.
We write for the parties and so recount only the facts necessary to our decision.
Perez-Borges is a Cuban national who arrived in the United States on December 16,
2017. The Department of Homeland Security placed him in expedited removal
proceedings and issued a Notice to Appear (“NTA”) charging him with removability.
Perez-Borges requested asylum, withholding of removal, and deferral of removal under
the Convention Against Torture (“CAT”). 2
At a hearing before the IJ on August 13, 2018, Perez-Borges’s testimony
contained a number of inconsistencies and statements inconsistent with his asylum
application. He testified that he feared returning to Cuba because he refused to join the
military and refused to join the Communist Party. He stated that he was a trained pilot
and that military service is compulsory in order to become a pilot in Cuba. He testified
1 Although Petitioner’s name is not hyphenated on our docket and is only sporadically hyphenated in the record, we hyphenate it here consistent with how it appears in his briefing before our Court. See, e.g., Perez-Borges Br. 4. 2 The BIA concluded that Perez-Borges waived his right to challenge the IJ’s denial of relief under the CAT, and Perez-Borges does not contest that ruling here. 2 that he had attended one year of military school, then attended a second year at “another
school like a civil school.” Administrative Record (“A.R.”) 101. He also stated that he
objected when the director of his school informed him that he was required to join the
military and, as punishment, Perez-Borges was sent to work for an “agriculture aviation
company.” A.R. 104–06. But he also said that he could avoid compulsory military
service because he attended the military academy.
Once, Perez-Borges was detained for about twenty-four hours by the Cuban
police, who allegedly interrogated him and threatened him and his family. He claimed
that the police detained him because he applied for a visa to travel to Mexico. In the
course of this incident, the police purportedly told him that he could not fly anymore. In
his asylum application, Perez-Borges claimed that he was physically and mentally
tortured, but at the hearing he testified that he did not suffer any physical harm during his
detention.
Perez-Borges also gave conflicting testimony about being summoned by Cuba’s
civil aviation authority. His testimony included inconsistent stories about “citations” and
the relevant dates of those citations. A.R. 135–37. He vacillated between describing the
citations as punishments, as official summonses, or as cautionary notices. He described
one instance where, in response to a citation, he reported to a police station, and he was
told not to go to any area in Cuba where he could leave the country or access the Internet.
He then described two more “citation” incidents, one of which, he claimed, resulted in his
losing his flight privileges. He also testified to being harassed by the Cuban government
after this citation.
3 Perez-Borges claimed to have a child with his first wife, to whom he is not legally
married. Yet, he also said that they divorced in the beginning of 2016 because “the
government was bothering” his wife. A.R. 113. He testified that he is legally married to
a Mexican woman, whom he married as a way of escaping Cuba. He mixed up the dates
of when he was married to each woman.
Perez-Borges testified that, in April 2017, he left Cuba to reside in Mexico with
his second wife. He speculated that the Cuban government allowed him to travel because
they expected him to return. He claimed that he then returned to Cuba because his
second wife’s cousin was threatening his family. In October 2017, he traveled to Mexico
again, following yet another citation. Perez-Borges then traveled to the United States,
where he presented himself to immigration authorities.
Based on this testimony, the IJ found Perez-Borges not credible and denied his
applications for relief. The IJ noted that Perez-Borges’s hearing testimony was
inconsistent on many topics, including his citations, his refusal to serve in the military,
relevant dates and times, including those related to his two marriages, and why he
returned to Cuba if he feared for his safety. And in his asylum application, Perez-Borges
claimed that he was physically and mentally tortured, but at the hearing he testified that
he was not physically harmed. Further, the IJ noted “substantial and material” omissions
in his testimony. A.R. 64. Alternatively, the IJ found that Perez-Borges could not show
past persecution or a likelihood of future persecution, or that it would be more likely than
not that he would be tortured if he returned to Cuba.
4 The BIA affirmed on the same grounds. The BIA also rejected Perez-Borges’s
argument — raised for the first time on appeal — that he was eligible for relief under the
CAA. The BIA noted that Perez-Borges did not submit any additional applications for
relief and presented no evidence that he is eligible for status adjustment under the CAA.
II.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s order. We
generally only consider the reasoning offered by the BIA, but because the BIA adopted
the IJ’s findings and discussed the bases for the IJ’s decision, we have authority to review
the decisions of both the IJ and the BIA. Saravia v. Att’y Gen., 905 F.3d 729, 734 (3d
Cir. 2018).
We must uphold factual determinations as to asylum and withholding of removal
if they are “supported by substantial evidence from the record considered as a whole.”
Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010). Under that standard, “we will
reverse based on a factual error only if any reasonable fact-finder would be ‘compelled to
conclude otherwise.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). We review adverse
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 19-1790 _____________
ABEL PEREZ BORGES, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _____________
On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A216-282-345) Immigration Judge: Kuyomars Q. Golparvar ___________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 27, 2020 ___________
Before: CHAGARES, RESTREPO, and BIBAS, Circuit Judges.
(Opinion Filed: January 30, 2020)
___________
OPINION * ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.
Abel Perez-Borges 1 petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of his applications for
asylum and withholding of removal and rejecting his argument that he is entitled to relief
under the Cuban Adjustment Act (“CAA”). Perez-Borges also contends that he should
have been granted parole. For the following reasons, we will deny the petition.
I.
We write for the parties and so recount only the facts necessary to our decision.
Perez-Borges is a Cuban national who arrived in the United States on December 16,
2017. The Department of Homeland Security placed him in expedited removal
proceedings and issued a Notice to Appear (“NTA”) charging him with removability.
Perez-Borges requested asylum, withholding of removal, and deferral of removal under
the Convention Against Torture (“CAT”). 2
At a hearing before the IJ on August 13, 2018, Perez-Borges’s testimony
contained a number of inconsistencies and statements inconsistent with his asylum
application. He testified that he feared returning to Cuba because he refused to join the
military and refused to join the Communist Party. He stated that he was a trained pilot
and that military service is compulsory in order to become a pilot in Cuba. He testified
1 Although Petitioner’s name is not hyphenated on our docket and is only sporadically hyphenated in the record, we hyphenate it here consistent with how it appears in his briefing before our Court. See, e.g., Perez-Borges Br. 4. 2 The BIA concluded that Perez-Borges waived his right to challenge the IJ’s denial of relief under the CAT, and Perez-Borges does not contest that ruling here. 2 that he had attended one year of military school, then attended a second year at “another
school like a civil school.” Administrative Record (“A.R.”) 101. He also stated that he
objected when the director of his school informed him that he was required to join the
military and, as punishment, Perez-Borges was sent to work for an “agriculture aviation
company.” A.R. 104–06. But he also said that he could avoid compulsory military
service because he attended the military academy.
Once, Perez-Borges was detained for about twenty-four hours by the Cuban
police, who allegedly interrogated him and threatened him and his family. He claimed
that the police detained him because he applied for a visa to travel to Mexico. In the
course of this incident, the police purportedly told him that he could not fly anymore. In
his asylum application, Perez-Borges claimed that he was physically and mentally
tortured, but at the hearing he testified that he did not suffer any physical harm during his
detention.
Perez-Borges also gave conflicting testimony about being summoned by Cuba’s
civil aviation authority. His testimony included inconsistent stories about “citations” and
the relevant dates of those citations. A.R. 135–37. He vacillated between describing the
citations as punishments, as official summonses, or as cautionary notices. He described
one instance where, in response to a citation, he reported to a police station, and he was
told not to go to any area in Cuba where he could leave the country or access the Internet.
He then described two more “citation” incidents, one of which, he claimed, resulted in his
losing his flight privileges. He also testified to being harassed by the Cuban government
after this citation.
3 Perez-Borges claimed to have a child with his first wife, to whom he is not legally
married. Yet, he also said that they divorced in the beginning of 2016 because “the
government was bothering” his wife. A.R. 113. He testified that he is legally married to
a Mexican woman, whom he married as a way of escaping Cuba. He mixed up the dates
of when he was married to each woman.
Perez-Borges testified that, in April 2017, he left Cuba to reside in Mexico with
his second wife. He speculated that the Cuban government allowed him to travel because
they expected him to return. He claimed that he then returned to Cuba because his
second wife’s cousin was threatening his family. In October 2017, he traveled to Mexico
again, following yet another citation. Perez-Borges then traveled to the United States,
where he presented himself to immigration authorities.
Based on this testimony, the IJ found Perez-Borges not credible and denied his
applications for relief. The IJ noted that Perez-Borges’s hearing testimony was
inconsistent on many topics, including his citations, his refusal to serve in the military,
relevant dates and times, including those related to his two marriages, and why he
returned to Cuba if he feared for his safety. And in his asylum application, Perez-Borges
claimed that he was physically and mentally tortured, but at the hearing he testified that
he was not physically harmed. Further, the IJ noted “substantial and material” omissions
in his testimony. A.R. 64. Alternatively, the IJ found that Perez-Borges could not show
past persecution or a likelihood of future persecution, or that it would be more likely than
not that he would be tortured if he returned to Cuba.
4 The BIA affirmed on the same grounds. The BIA also rejected Perez-Borges’s
argument — raised for the first time on appeal — that he was eligible for relief under the
CAA. The BIA noted that Perez-Borges did not submit any additional applications for
relief and presented no evidence that he is eligible for status adjustment under the CAA.
II.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s order. We
generally only consider the reasoning offered by the BIA, but because the BIA adopted
the IJ’s findings and discussed the bases for the IJ’s decision, we have authority to review
the decisions of both the IJ and the BIA. Saravia v. Att’y Gen., 905 F.3d 729, 734 (3d
Cir. 2018).
We must uphold factual determinations as to asylum and withholding of removal
if they are “supported by substantial evidence from the record considered as a whole.”
Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010). Under that standard, “we will
reverse based on a factual error only if any reasonable fact-finder would be ‘compelled to
conclude otherwise.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). We review adverse
credibility determinations under the same deferential standard. Kaita v. Att’y Gen., 522
F.3d 288, 296 (3d Cir. 2008).
III.
At the outset, an applicant for relief from removal must be credible. 8 U.S.C.
§ 1158(b)(1)(B)(ii). An IJ determines credibility based on the “totality of the
circumstances . . . without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim.” Id. § 1158(b)(1)(B)(iii). To be eligible for
5 asylum, an applicant must show past “persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or
political opinion” in the country of removal. Id. § 1101(a)(42)(A). Withholding of
removal is subject to a higher standard: an alien must demonstrate that there is a “clear
probability” of persecution on account of a protected ground. Senathirajah v. INS, 157
F.3d 210, 215 (3d Cir. 1998) (quotation marks omitted). “Persecution” is defined as
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” Camara v. Att’y Gen., 580 F.3d 196, 202 (3d Cir.
2009) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)).
The IJ’s finding that Perez-Borges is not credible is supported by substantial
evidence in the record. The IJ noted a number of unexplained material omissions and
inconsistencies in Perez-Borges’s story with respect to his military service, his marriages,
and his purported torture by Cuban security forces, among other things.
Alternatively, the record supports the IJ’s and the BIA’s conclusion that Perez-
Borges cannot demonstrate either past persecution or a likelihood of future persecution.
Perez-Borges was briefly detained once, and although the police threatened his family, he
was never physically harmed. Nothing else in the record points to past or likely future
persecution.
Finally, Perez-Borges argues that U.S. Immigration and Customs Enforcement
(“ICE”) should have granted him parole and that he is eligible for status adjustment under
the CAA. Neither argument is availing. First, we lack jurisdiction to hear Perez-
Borges’s challenge to ICE’s denial of parole, which is a decision “in the discretion” of
6 the Secretary of Homeland Security. 8 U.S.C. § 1252(a)(2)(B). Second, as the BIA
noted, Perez-Borges did not submit any evidence or argument to show that he is facially
eligible for relief under the CAA.
IV.
For the foregoing reasons, we will deny the petition for review.