Alex Monzon Fuentes v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 2023
• Docket: 21-70541
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEX ANATAN FUENTES MONZON, No. 21-70541

Petitioner, Agency No. A209-865-435

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

Respondent.

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

Submitted July 21, 2023** Pasadena, California

Before: S.R. THOMAS, NGUYEN, and FORREST, Circuit Judges.

Petitioner Alex Anatan Fuentes Monzon (Fuentes),1 a citizen and national of

Guatemala, seeks review of the Board of Immigration Appeals’ (BIA) decision

* 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). 1 Although the agency referred to the Petitioner as Alex Anatan Monzon Fuentes, his birth certificate and other documents indicate that his last name is Fuentes Monzon. denying his claims for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252,

and we deny the petition.

1. Adverse Credibility Determination. Substantial evidence supports the

agency’s adverse credibility determination where there were several inconsistencies

among Fuentes’s hearing testimony, credible fear interview, and multiple

declarations in support of his asylum application. For example, Fuentes failed to

mention his preaching activities or that gang members threatened him in his credible

fear interview, his asylum application, and his first few declarations. Additionally,

Fuentes’s hearing testimony about his persecutors’ motivation was inconsistent with

his earlier written statements and credible fear interview. See, e.g., Iman v. Barr, 972

F.3d 1058, 1068 (9th Cir. 2020) (“[O]missions are probative of credibility to the

extent that later disclosures, if credited, would bolster an earlier, and typically

weaker, asylum application.”); Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir.

2008) (concluding that petitioner’s failure to “mention his numerous political

speeches in his initial application for asylum and interview with the asylum officer”

provided substantial evidence for the agency’s adverse credibility determination);

see also Singh v. Holder, 638 F.3d 1264, 1270 (9th Cir. 2011) (“If the person cannot

tell substantially the same story twice in substantially the same way, that suggests a

likelihood that the story is false.”). These discrepancies were significant because

2 Fuentes’s religious conduct was central to his evolving claim. See Shrestha v.

Holder, 590 F.3d 1034, 1044, 1047 (9th Cir. 2010) (noting that “when an

inconsistency is at the heart of the claim it doubtless is of great weight”). And

Fuentes failed to provide a compelling explanation when confronted with these

inconsistencies. See id. Collectively, these discrepancies constitute substantial

evidence to support the agency’s adverse credibility determination.

The agency’s adverse credibility finding supports its denial of asylum,

withholding of removal, and CAT protection because “[w]ithout [Fuentes]’s

testimony, the remaining evidence in the record is insufficient to carry h[is] burden

of establishing eligibility for relief.” Wang v. Sessions, 861 F.3d 1003, 1009 (9th

Cir. 2017); see also Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015) (explaining

that the agency may rely on adverse credibility determination in deciding both CAT

and asylum claims where claims are based on same noncredible statements),

overruled on other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en

banc). Fuentes concedes that “without [his] testimony, [he] had no evidence to

support his claims.”

2. Due Process Claim. Fuentes argues that he was denied a full and fair

hearing and an impartial decisionmaker because the immigration judge (IJ) was

biased against him. We deny this due process claim because Fuentes failed to

exhaust it before the BIA. See Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002)

3 (“The exhaustion requirement applies to claims that an alien was denied a full and

fair hearing.” (internal quotation marks and citation omitted)). In his appeal to the

BIA, Fuentes argued only that the IJ’s credibility determination was erroneous and

that he was denied an opportunity to provide corroborating evidence of his

evangelical preaching in the gang neighborhood.2 The Supreme Court has clarified

that exhaustion in this context is not jurisdictional and therefore can be forfeited. See

Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1116 (2023) (construing exhaustion as

a claims-processing rule). The Government did not forfeit exhaustion—it

specifically argues that Fuentes failed to raise this bias challenge to the BIA. See

Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019) (explaining that a court

must enforce a claims-processing rule “if a party ‘properly raise[s]’ it” (alteration in

original)).

PETITION DENIED.

2 The BIA rejected Fuentes’s argument that the IJ failed to provide him an opportunity to corroborate his claims. Fuentes does not challenge this holding on appeal, so we do not address it. See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (“[W]e will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.” (internal quotation marks and citation omitted)).