Carlos Rodriguez Juarez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2022
• Docket: 20-73815
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 8 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS EMILIO RODRIGUEZ No. 20-73815 JUAREZ, Agency No. A209-127-654 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 14, 2022** San Francisco, California

Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.

Carlos Emilio Rodriguez Juarez is a citizen of Honduras who entered the

United States without a valid entry document on August 15, 2016. An immigration

judge (IJ) denied Rodriguez Juarez’s applications for asylum, withholding of

* 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). removal, and protection under the Convention Against Torture (CAT). The Board

of Immigration Appeals (BIA) affirmed. Petitioner argues for relief on two

grounds.1 First, petitioner contends that the IJ’s adverse credibility determination

was clearly erroneous because petitioner subsequently recanted his inconsistent

testimony. Second, petitioner asserts that the IJ erred in finding that he was

ineligible for CAT protection because he had failed to establish that the

government would acquiesce to his torture or that he was unable to relocate and

avoid harm.2 We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny his

petition.

Where the BIA affirms the IJ while citing its decision in Matter of Burbano,

20 I. & N. Dec. 872, 874 (B.I.A. 1994), and adding its own analysis, we review

both decisions together and review the agency’s factual findings for substantial

1 Petitioner does not contest the agency’s findings with respect to the lack of a nexus between his alleged persecution and a particular social group—failing in his briefing before this court to mention either of his proposed social groups of “young men who resist police corruption” or “family”—and any challenge to them is forfeited. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“[W]e generally will not take up arguments not raised in an alien’s opening brief before this court.”). Accordingly, he fails to meet his burden of proof for asylum and withholding. See Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016). 2 Although petitioner attempts to raise this issue before this court, the BIA specifically declined to address these findings by the IJ and instead predicated denial of petitioner’s CAT claim solely on the adverse credibility determination. 2 evidence. See Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013);

Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). Under this standard,

we must uphold the findings unless “any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). When applying this standard of

review, we may not re-weigh the evidence, Gu v. Gonzales, 454 F.3d 1014,

1018–19 (9th Cir. 2006), and may only reverse if “no reasonable factfinder could

have reached the agency’s result,” Tzompantzi-Salazar v. Garland, 32 F.4th 696,

703 (9th Cir. 2022) (quoting Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007)).

As long as the IJ has provided specific and cogent reasons for finding the applicant

not credible, “only the most extraordinary circumstances will justify overturning

[the agency’s] adverse credibility determination.” Shrestha v. Holder, 590 F.3d

1034, 1041 (9th Cir. 2010) (quoting Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1

(9th Cir. 2005)).

The IJ’s adverse credibility determination was supported by substantial

evidence. Although petitioner claimed before the IJ that he received a single death

threat from the Mara 18 gang for his refusal to pay a “war tax,” the IJ permissibly

found petitioner lacked credibility because of his prior statement to an immigration

officer in a border patrol interview on August 24, 2016 that he had no fear of

3 returning to Honduras and came to the United States only “[t]o find work.” See id.

at 1047 (“[W]hen an inconsistency is at the heart of the claim it doubtless is of

great weight.”). The IJ properly considered and rejected petitioner’s explanation

that he was nervous. Although petitioner asserts that the IJ erred in failing to

honor his recantation of his statement to the immigration officer, an IJ is not

required to interpret evidence as an applicant advocates. See Don, 476 F.3d at 744.

Rather, the IJ must only “consider the petitioner’s explanation for any

inconsistency” while excluding any “utterly trivial inconsistency that . . . [has] no

bearing on a petitioner’s veracity.” Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.

2014) (brackets in original) (internal quotation marks omitted). The IJ was best

positioned to consider the testimony in its context. And, the IJ provided support

from the record for his conclusion. As petitioner was found to lack credibility and

presented no additional information in support of his claims, the IJ and BIA did not

err in determining that petitioner failed to meet his burden of proof. See Wang v.

Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017) (holding that an adverse credibility

determination precludes CAT protection where the CAT claim is “based on the

same statements . . . that the BIA determined to be not credible” (quoting Singh v.

Lynch, 802 F.3d 972, 977 (9th Cir. 2015), overruled on other grounds by Alam v.

Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc))).

4 PETITION DENIED.