Francisco Batres-Roca v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2022
• Docket: 18-71926
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO ISRAEL BATRES-ROCA, No. 18-71926 AKA Felipe Portillo-Vega, Agency No. A070-154-405 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 14, 2022** San Francisco, California

Before: CLIFTON and M. SMITH, Circuit Judges, and REISS,*** District Judge.

Petitioner Francisco Batres-Roca, a citizen of Guatemala, petitions for

review of the decision by the Board of Immigration Appeals (“BIA”) affirming the

* 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 Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. Immigration Judge’s (“IJ”) denial of his claims for asylum, withholding of

removal, and Convention Against Torture (“CAT”) protection. We have

jurisdiction pursuant to 8 U.S.C. § 1252. Because the parties are familiar with the

facts, we recite only those necessary to our decision. We deny the petition.

First, we agree with the BIA’s conclusion that Batres-Roca was ineligible

for asylum because he neither met the timely filing requirement nor fulfilled an

exception to that requirement despite his claim to an exception for “extraordinary

circumstances.” See 8 C.F.R. § 1208.4(a)(5) (defining “extraordinary

circumstances” as “events or factors directly related to the failure to meet the 1-

year deadline” and rendering the delay “reasonable under the circumstances”);

Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011) (recognizing appellate

jurisdiction to review the agency’s application of the “extraordinary

circumstances” exception to undisputed facts). Batres-Roca most recently entered

the U.S. on June 4, 2011, and was thus required to file his application in

immigration court by June 4, 2012, but only did so on November 1, 2013. The BIA

committed no error in concluding that he failed to qualify for the “extraordinary

circumstances” exception. The BIA cogently emphasized that he “admit[ted] that

he does not have proof of allegedly filing the application in February 2012” with

USCIS, which, in any case, was the wrong venue for filing his defensive

application because, at that time, such an application was required to be filed in

2 immigration court; nonetheless, Batres-Roca’s “extraordinary circumstances”

contention, made by counsel, centered on that unsubstantiated filing attempt. See 8

C.F.R. § 1208.4(b)(3). Moreover, the BIA’s reasoning relied in part on the fact that

Batres-Roca “had a hearing before the [IJ] on December 8, 2011 where he was

represented by counsel[,]” but conceded that he did not attempt to file his

application at that hearing, which occurred approximately six months before the

deadline passed. Finally, the BIA properly considered and rejected his argument

that the delays in his immigration hearings constituted “extraordinary

circumstances.”

Second, we conclude that substantial evidence supported the adverse

credibility finding, which led to the agency’s denial of his withholding-of-removal

claim as well as his asylum claim. We review adverse credibility

determinations for substantial evidence. See Garcia v. Holder, 749 F.3d 785, 789

(9th Cir. 2014). “A finding by the IJ is not supported by substantial evidence when

any reasonable adjudicator would be compelled to conclude to the contrary based

on the evidence in the record.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,

1059 (9th Cir. 2017) (quotation marks and citation omitted). Because “the BIA

reviewed the IJ’s credibility-based decision for clear error and relied upon the IJ’s

opinion as a statement of reasons but did not merely provide a boilerplate opinion,”

we review those reasons “explicitly identified by the BIA” and “the reasoning

3 articulated in the IJ’s [] decision in support of those reasons,” but not “those parts

of the IJ’s adverse credibility finding that the BIA did not identify as most

significant and did not otherwise mention.” Lai v. Holder, 773 F.3d 966, 970 (9th

Cir. 2014) (quotation marks and citations omitted).

Batres-Roca falsely claimed Mexican citizenship and the name Felipe

Portillo-Vega in multiple government proceedings. We have held that “falsehoods

and fabrications weigh particularly heavily in the adverse credibility inquiry.”

Kumar v. Garland, 18 F.4th 1148, 1155 (9th Cir. 2021). The agency reasonably

considered and permissibly rejected his argument that these falsehoods were

excused by his fear of removal. When he stated those falsehoods, he was already in

the U.S. and was not directly fleeing persecution or attempting to secure entry into

the U.S., which contrasts with the facts in Akinmade v. INS. 196 F.3d 951, 955-56

(9th Cir. 1999) (granting leniency to “a genuine refugee escaping persecution

[who] may lie about his citizenship to immigration officials in order to flee his

place of persecution or secure entry”).

In contrast to his testimony that guerrillas murdered four of his family

members in 1981, his documentary evidence—namely, a news article—declared

that a “crime group” committed a “crime” in which “strangers killed four members

of one family[.]” We have ruled that substantial evidence supported an adverse

credibility finding where inconsistencies between a noncitizen’s testimony and his

4 documentary evidence “b[ore] directly on [his] claim of persecution[.]” Manes v.

Sessions, 875 F.3d 1261, 1264 (9th Cir. 2017) (citation omitted). The issue of

whether his family members were murdered by guerrillas or unknown criminals

bears directly on his persecution claim.

His demeanor supported the adverse credibility finding because he

“provided various excuses and [] answers” regarding the incongruence between his

testimony and his documentary evidence on the issue of whether guerrillas or

unknown criminals committed the murders. An IJ is “in the best position to assess

demeanor and other credibility cues that we cannot readily access on review.”

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

Considering the agency’s “specific, cogent reason[s]” and the totality of the

circumstances, we conclude that substantial evidence supported the adverse

credibility finding. Lei Li v. Holder, 629 F.3d 1154, 1157 (9th Cir. 2011) (citation

omitted).

Finally, we conclude that Batres-Roca waived any challenge to the agency’s

denial of CAT protection. See Fed. R. App. 28(a)(8)(A). The body of his opening

brief only references CAT protection in one header, and neither advances

arguments regarding his eligibility for CAT protection nor alleges that he suffered

harm rising to the level of torture. See Martinez- Serrano v. INS, 94 F.3d 1256,

1259-60 (9th Cir. 1996) (deeming an issue waived when it was referenced only in

5 the statement of the case and not discussed in the body of a noncitizen’s opening

brief).

PETITION FOR REVIEW DENIED.