Gabriel Saavedra Ortiz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2022
• Docket: 20-71698
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GABRIEL SAAVEDRA ORTIZ, No. 20-71698

Petitioner, Agency No. A207-127-096

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

Respondent.

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

Argued & Submitted October 4, 2021 Submission withdrawn November 8, 2021 Re-submitted April 18, 2022 San Francisco, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and McSHANE,** District Judge.

Gabriel Saavedra Ortiz (“Petitioner”), a native of Mexico, petitions for

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation. Immigration Judge’s (“IJ”) denial of his applications for adjustment of status and

cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we

review for substantial evidence the agency’s factual findings, see Arrey v. Barr,

916 F.3d 1149, 1157 (9th Cir. 2019). We deny the Petition.

The BIA’s adverse credibility determination was supported by substantial

evidence given the BIA’s discussion of several instances in which Petitioner’s

testimony appeared false, inconsistent, or otherwise implausible. For example, the

BIA pointed out that, during a 2014 interview with United States Citizenship and

Immigration Services (“USCIS”), Petitioner failed to disclose at least two

departures from the United States, both of which he would later acknowledge at a

2018 hearing. And at the 2018 hearing itself, the BIA noted that Petitioner first

claimed he had never left the country after 1997, but then acknowledged a 2005

trip to England when pressed by the government. Both instances support the

agency’s adverse credibility determination. See 8 U.S.C. § 1229a(c)(4)(C) (stating

that the agency “may base a credibility determination on . . . any inaccuracies or

falsehoods in [a witness’s] statements”); Rodriguez-Ramirez v. Garland, 11 F.4th

1091, 1093 (9th Cir. 2021) (observing that “[t]he BIA and IJ were permitted to

afford substantial weight to inconsistencies” in the petitioner’s account, and

holding that such inconsistencies supported the agency’s adverse credibility

determination). Similarly, although Petitioner disputed USCIS records indicating

2 that he had left the country in 2012, it was not unreasonable for the agency to

conclude that it is implausible that immigration officials, having just fingerprinted

an alien who was unauthorized to be in the United States, would then allow that

alien to remain in the country without initiating removal proceedings, as

Petitioner’s account suggested. Such testimony lends further support to the BIA’s

adverse credibility determination. See Lalayan v. Garland, 4 F.4th 822, 837–38

(9th Cir. 2021) (upholding agency’s adverse credibility determination based in part

on the petitioner’s implausible testimony). Finally, the demeanor findings cited by

the BIA “specifically point[ed] out the noncredible aspects of the [P]etitioner’s

demeanor,” Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010), including his

dry mouth, shaky voice, and glances around the courtroom—findings that “are

entitled to special deference,” Ling Huang v. Holder, 744 F.3d 1149, 1155 (9th Cir.

2014). Thus, the BIA identified “specific and cogent reasons” to support its

adverse credibility determination, Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir.

2017), and Petitioner has failed to show that the record compels a contrary result.

Petitioner argues that because the IJ made no explicit credibility

determination regarding the testimony of his father, the BIA should have presumed

that the father’s testimony—which echoed Petitioner’s own account of the 2012

border incident—was truthful. This argument is unpersuasive. Although a

presumption of credibility “may arise” in appeals before the BIA where the IJ

3 failed to make an explicit credibility determination, such a presumption is

rebuttable, and “the BIA [need not] follow a particular formula or incant ‘magic

words’ like ‘incredible’ or ‘rebutted’ to overcome the INA’s presumption of

credibility on appeal.” Garland v. Ming Dai, 141 S. Ct. 1669, 1671, 1677–78,

1679 (2021). Reviewing courts should “consider the possibility that the BIA

implicitly found the presumption of credibility rebutted.” Id. at 1679. Here, even

if the IJ did not make an explicit credibility determination regarding Petitioner’s

father, the BIA observed that Petitioner’s father “parroted the same implausible

claim that despite raising suspicion at the border, and then being fingerprinted and

processed in 2012, the [Petitioner] was simply ‘let go’ into the United States.”

Thus, “even if the agency did not utter the words ‘adverse credibility finding,’” it

is clear “the BIA found that [the father’s] presumption of credibility had been

overcome.” Id. at 1680.

Absent credible testimony regarding “the time, place, and manner” of

Petitioner’s entry into the United States, 8 U.S.C. § 1361, the record does not

compel the conclusion that Petitioner sustained his burden of proving “clearly and

beyond a doubt” that he was not inadmissible as charged, 8 C.F.R. § 1240.8(c).

Finally, substantial evidence supported the BIA’s determination that

Petitioner was ineligible for an adjustment of status. This conclusion was based on

record evidence that Petitioner had accrued more than one year of unlawful

4 presence and had re-entered the United States without inspection on multiple

occasions, which rendered him inadmissible under 8 U.S.C. § 1182(a)(9)(C).

Because Petitioner’s inadmissibility is based on accrued unlawful presence, his

inadmissibility may not be waived. See Salazar-Gonzalez v. Lynch, 798 F.3d 917,

921 (9th Cir. 2015). Petitioner’s sole argument is that § 1182(a)(9)(C) is

“inapplicable” because he never entered or attempted to enter the United States

without being admitted. But the only evidence that Petitioner offers to support that

he entered with inspection is his own testimony, which the agency permissibly

found lacked credibility. Thus, Petitioner did not establish his entitlement to an

adjustment of status. See 8 C.F.R. § 1240.8(d) (stating that an alien has the burden

to prove eligibility “for any requested benefit or privilege”). Because Petitioner is

inadmissible under § 1182(a)(9)(C), the BIA appropriately concluded that he is

ineligible to adjust status under 8 U.S.C. § 1255(a) or § 1255(i). See Safaryan v.

Barr, 975 F.3d 976, 981 (9th Cir. 2020) (noting that “[a]n alien seeking to adjust

his or her status” under 8 U.S.C. § 1255(a) must be admissible); Garfias-Rodriguez

v. Holder, 702 F.3d 504, 514 (9th Cir. 2012) (en banc) (holding that aliens

inadmissible under 8 U.S.C § 1182(a)(9)(C)(i)(I) are not eligible for adjustment of

status under 8 U.S.C. § 1255(i)).

Petitioner did not address, let alone challenge, the BIA’s denial of his

application for cancellation of removal, and therefore has waived any challenge to

5 this denial. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir. 1996).

The motion and supplemental motion to stay removal are denied as moot.

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.