Cristobal Lucas Santos v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 7, 2022
• Docket: 18-71544
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 7 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CRISTOBAL SANTIAGO LUCAS No. 18-71544 SANTOS, Agency No. A208-417-844 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 15, 2022** San Francisco, California

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

Cristobal Santiago Lucas Santos (“Lucas Santos”), a native and citizen of

Guatemala, petitions for review of the Board of Immigration Appeals’ (the “BIA”)

dismissal of his appeal and denial of his 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”). Before

us Lucas Santos asserts that: (1) he was prejudiced by his attorney’s incompetence

before the agency; (2) the BIA erred in adopting the Immigration Judge’s (the “IJ”)

adverse credibility finding; (3) the BIA failed to address the merits of his claims

for withholding and removal; and (4) the BIA erred in dismissing his claim for

CAT relief. We have jurisdiction pursuant to 8 U.S.C. § 1252(a) and we affirm.

1. Lucas Santos did not raise his ineffective assistance of counsel claim

before the BIA. Accordingly, this issue is not exhausted, and we do not have

jurisdiction to address it. See Puga v. Chertoff, 488 F.3d 812, 815–16 (9th Cir.

2007).

2. Lucas Santos’s challenges to the IJ’s adverse credibility finding fail

because that finding is supported by substantial evidence in the record. We review

the agency’s “factual findings, including adverse credibility determinations, for

substantial evidence.” Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020)

(citing Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013)). We must uphold an

adverse credibility determination “unless any reasonable adjudicator would be

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

v. Sessions, 875 F.3d 1261, 1263 (9th Cir. 2017) (per curiam). Accordingly, “only

the most extraordinary circumstances will justify overturning an adverse credibility

determination.” Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010) (quoting

2 Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)).

Although Lucas Santos offered a reasonable explanation for the confusion

concerning the date of his brother’s death, the explanation does not compel the

conclusion that he was credible. The adverse credibility determination is further

supported by Lucas Santos’s conflicting statements that: (1) his brother was killed

by members of another family that owed his brother money; (2) he does not know

who these people are but they once threatened to kill him; (3) the threat came

through Lucas Santos’s uncle; and (4) the threat was made directly to Lucas Santos

over the phone. Moreover, there is evidence that Lucas Santos lied to immigration

officers in 2008 and offered a different reason for entering the United States in

2015.

3. Lucas Santos’s claim that the BIA failed to address the merits of his

claims for asylum and withholding of removal fail because if the adverse

credibility determination is upheld, these claims necessarily fail.

4. Lucas Santos’s claim for CAT relief is also unpersuasive. To qualify for

relief, he must establish that that “it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” Garcia-Milian v. Holder,

755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R. § 1208.16(c)(2)). The

applicant must also show that torture will be by public officials or instigated with

their consent or acquiescence. Id. (quoting Zheng v. Ashcroft, 332 F.3d 1186, 1188

3 (9th Cir. 2003)). Here, even taking Lucas Santos at his word, he was never

physically harmed, never informed the police about the alleged threat, resided in

Guatemala for a year after receiving the alleged threat without any additional

threat, and failed to show that the public officials will not or cannot protect him.

Contrary to what Lucas Santos contends, the BIA did not err by failing to

specifically mention his country conditions evidence. See Lopez v. Ashcroft, 366

F.3d 799, 807 n.6 (9th Cir. 2004).

The petition for review is DENIED.