Felix Avila v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 3, 2024
• Docket: 23-907
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EUGENIA FELIX AVILA, No. 23-907 Agency No. Petitioner, A095-753-546 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 16, 2024 Pasadena, California

Before: BADE and FORREST, Circuit Judges, and CURIEL, District Judge.**

Petitioner Eugenia Felix Avila, a native and citizen of Mexico, petitions for

review from the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal

from the immigration judge’s (“IJ”) decision denying relief under the Convention

Against Torture (“CAT”). She challenges the agency’s partial credibility

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gonzalo P. Curiel, United States District Judge for the Southern District of California, sitting by designation. determination and the agency’s conclusion that she was unlikely to suffer torture

with the acquiescence of government officials if removed to Mexico. As the

parties are familiar with the facts, we do not repeat them here. We have

jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.

We review legal conclusions de novo and factual findings, including adverse

credibility findings and those underlying a denial of CAT relief, for substantial

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

here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and “does

not express any disagreement with the IJ’s reasoning or conclusions, we revisit

both decisions and treat the IJ’s reasons as those of the BIA.” Gutierrez v. Holder,

662 F.3d 1083, 1086 (9th Cir. 2011).

1. The IJ’s partial adverse credibility finding is supported by substantial

evidence. Credibility determinations involve a review of the totality of the

circumstances and may be based on, inter alia, the inherent plausibility of the

account and consistency within testimony and across the record, even if an

inconsistency does not go to the heart of the claim. 8 U.S.C. § 1229a(c)(4)(C);

Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010). Although the IJ found

that Felix Avila “generally credibly testified” that she had experienced past torture

and harm, it found that she was not credible in testifying that her torturer, Jesse de

2 23-907 la Vega Ramos, was associated with El Chapo or that he was currently interested in

her whereabouts in Mexico.

Felix Avila omitted the allegation that Ramos was associated with El Chapo

in her declarations, raising it for the first time in her direct testimony, and she was

unable to provide corroboration. Because “omissions can certainly form the basis

of an adverse credibility determination,” Ruiz-Colmenares v. Garland, 25 F.4th

742, 750 (9th Cir. 2022), and because it was reasonable for the IJ to find it

implausible that Ramos had a high position in El Chapo’s organization, especially

without corroboration, substantial evidence supports the IJ’s adverse credibility

finding regarding Ramos’s association with El Chapo.

Substantial evidence also supports the IJ’s determination that Felix Avila

was not credible in testifying that Ramos was still looking for her. Felix Avila’s

testimony that her sister did not speak directly to Ramos at a 2018 baptism

celebration, was contradicted by the declarations of Felix Avila’s siblings. And

“even minor inconsistencies may have” “a legitimate impact” on credibility, and

they need not go to the heart of the claim. Shrestha, 590 F.3d at 1044, 1047. The

inconsistency here involves an important detail about an incident which is central

to Felix Avila’s claim of future torture. See Ruiz-Colmenares, 25 F.4th at 749-50.

Even assuming that the IJ gave Felix Avila insufficient opportunity to

explain the inconsistency, any error was harmless because the remaining

3 23-907 considerations provide substantial evidence for the adverse credibility finding

under the totality of the circumstances. See Kumar v. Garland, 18 F.4th 1148,

1156 (9th Cir. 2021). Ramos has had no contact with Felix Avila in almost two

decades, has never targeted or harmed any of her family members in Mexico, and

no longer has contact with her daughters (with whom she had with Ramos) in

Mexico. Thus, even without the inconsistency, substantial evidence in the record

supports the agency’s finding that it was implausible that Ramos is still looking for

Felix Avila. Id.

2. Substantial evidence also supports the agency’s denial of CAT relief. An

applicant for relief under CAT must establish that “she will more likely than not be

tortured with the consent or acquiescence of a public official if removed to her

native country.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).

Although past torture is a principal factor in assessing the risk of future

torture⸺and there is no dispute here that Felix Avila suffered past torture⸺“[t]he

inference that future torture is likely to recur breaks down where circumstances or

conditions have changed significantly, not just in general, but with respect to the

particular individual.” Dawson v. Garland, 998 F.3d 876, 882 (9th Cir. 2021)

(citation and internal quotation marks omitted).

The torture Felix Avila experienced occurred over twenty years ago and

neither Felix Avila nor her family have been attacked by Ramos since then. See

4 23-907 Mairena v. Barr, 917 F.3d 1119, 1126 (9th Cir. 2019) (observing that the

persecution the petitioner experienced occurred over thirty years ago). Felix Avila

was not harmed by Ramos when she lived in Mexicali in the early 2000s for a few

months to two years, Felix Avila’s daughters stayed in Mexico after Felix Avila

fled to the United States and Ramos has not attempted to harm them, and even

though Ramos threatened to harm her mother if Felix Avila did not return, he has

not done so. The few threats he has made have been vague and gone unfulfilled.

Substantial evidence in the record supports the agency’s finding that Felix Avila is

not more likely than not to be tortured in Mexico. Thus, we uphold the denial of

CAT relief.

The temporary stay of removal remains in place until the mandate

issues. The motions for stay of removal are otherwise denied.

PETITION DENIED.

5 23-907