Eulises Martinez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2021
• Docket: 19-73042
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EULISES MACHIN MARTINEZ, No. 19-73042

Petitioner, Agency No. A203-637-655

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

Respondent.

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

Submitted May 10, 2021** Pasadena, California

Before: R. NELSON and BADE, Circuit Judges, and HELLERSTEIN,*** District Judge.

Eulises Martinez, a native and citizen of Cuba, petitions for review of a

Board of Immigration Appeals’ (“BIA”) decision affirming an immigration judge’s

* 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 Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. (“IJ”) order denying Martinez’s application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”). Martinez challenges

the BIA and IJ’s (collectively, “Agency”) adverse credibility determination based

on inconsistencies, omissions, and implausibility in his testimony and his

demeanor.1 Martinez also argues he was not afforded an opportunity to present

corroborating evidence, violating his due process rights. We have jurisdiction

under 8 U.S.C. § 1252. We deny the petition.

We review factual findings, including adverse credibility determinations, for

substantial evidence. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir.

2020); Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir. 2010). “Considering

the totality of the circumstances,” the Agency “may base a credibility

determination on the demeanor, candor, or responsiveness . . . , the inherent

plausibility of the . . . account, . . . the consistency of [the applicant’s] statements

. . . , and any inaccuracies or falsehoods in such statements, without regard to

whether an inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant’s claim[.]” 8 U.S.C. § 1158(b)(1)(B)(iii). “Where, as here, the BIA

agrees with and incorporates specific findings of the IJ while adding its own

reasoning, we review [the] decisions” from both. Bhattarai v. Lynch, 835 F.3d

1 We address only the adverse credibility determination, which was the sole basis for the BIA’s decision. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1075 (9th Cir. 2020).

2 1037, 1042 (9th Cir. 2016).

Here, the Agency identified several inconsistencies that undermined

Martinez’s credibility. Martinez stated that he was fired, alternatively, (1) on

January 20, 2019, when he was told to leave a work meeting due to his views on a

change to the Cuban constitution; (2) on January 21, 2019, when he received a

document informing him he had been fired; or (3) on either January or February

24, 2019, when he was arrested because he did not vote on the change to the

constitution. Martinez also testified there were radical changes to the Cuban

constitution punishing anyone disagreeing with the government as a traitor but

could not state where in the constitution these changes were made. Martinez later

explained, rather, that the radical changes had been in implementing the

constitution, but admitted the Cuban government had punished people for anti-

government views before the alleged changes as well. Further, Martinez stated he

received medical care for treatment for injuries sustained during his arrest at a

hospital, but inconsistently stated that doctors do not provide care for people

opposing the government.

The Agency also found Martinez omitted significant information from his

written application and declaration. He orally testified that he was beaten, burned,

and left in a running shower all night when he was arrested. But he never

mentioned being left in a shower in his written asylum application or declaration.

3 The Agency found Martinez’s explanation that he was trying to be “precise”

unconvincing because he did not use all the space in the asylum application box

describing harm or mistreatment and his declaration had no space limitation.

The Agency found some of Martinez’s testimony implausible as well.

Martinez testified that he arrived in Panama from Cuba by himself, happened to

meet other Cubans he did not know, spoke to them only once, and then followed

them by land all the way to the United States for over a month. Martinez also

asserted that guards at the U.S. border forced him to throw away his possessions,

including his backpack containing all his documents (and even his shoelaces, but

not his shoes). Additionally, the Cuban government permitted him to leave,

though he professed a fear of persecution. Though the Cuban government already

knew he had left, Martinez nevertheless asserted he could not ask his family in

Cuba for documentary evidence supporting his claim because it would put them at

risk.

Moreover, the Agency found that Martinez’s demeanor was non-responsive

and evasive, requiring numerous attempts to get answers to very specific questions.

Considering the totality of the circumstances, substantial evidence supports

the Agency’s adverse credibility determination. The Agency provided numerous

“specific and cogent reasons” supporting its determination. See Shrestha, 590 F.3d

at 1042. And Martinez tellingly fails to provide corroborating documentary

4 evidence. See Singh v. Holder, 638 F.3d 1264, 1272–73 (9th Cir. 2011). His

explanations for failing to provide such corroborating evidence are unconvincing,

see Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th Cir. 2010), and do not

compel concluding that this evidence was unavailable, see Silva-Pereira v. Lynch,

827 F.3d 1176, 1187 (9th Cir. 2016).

Finally, we review Martinez’s due process challenge de novo. Liu v.

Holder, 640 F.3d 918, 930 (9th Cir. 2011). We only “reverse[] on due process

grounds if (1) the proceeding was so fundamentally unfair that the alien was

prevented from reasonably presenting his case, and (2) the alien demonstrates

prejudice, which means that the outcome of the proceeding may have been affected

by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th

Cir. 2006) (internal quotation marks and citations omitted).

Martinez argues he did not have enough time to obtain corroborating

evidence. He noted on June 5, 2019, that his sister sent documents that were to

arrive on June 3, 2019, but supposedly had still not arrived by his hearing on June

26, 2019. But he never requested a continuance. Moreover, he asserted below that

all relevant evidence was taken from him at the border and he could not obtain

more evidence from Cuba. In any event, even accepting his unsupported allegation

that his sister sent documents, he does not meet his burden to show prejudice

because he never explains how the purported documents might affect the outcome

5 of his case or how he was otherwise prevented “from reasonably presenting his

case.” See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) (internal

quotation marks and citations omitted). Thus, there was no due process violation.

The Agency’s adverse credibility finding renders Martinez ineligible for

asylum or withholding of removal. See Wang v. Sessions, 861 F.3d 1003, 1009

(9th Cir. 2017). Likewise, because the only evidence supporting his CAT claim––

Martinez’s testimony––is discredited, his CAT claim also fails. See Singh v.

Lynch, 802 F.3d 972, 977 (9th Cir. 2015). The motion for a stay of removal is

denied.

PETITION FOR REVIEW DENIED.