Garcia Oliva v. Garland

120 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: October 21, 2024
• Docket: 23-1841
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1841

JOSÉ ANTONIO GARCIA OLIVA,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Gelpí, Selya, and Montecalvo, Circuit Judges.

Kevin P. MacMurray and MacMurray & Associates on brief for petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Paul Fiorino, Senior Litigation Counsel, Office of Immigration Litigation, and Virginia Lum, Attorney, Office of Immigration Litigation, on brief for respondent.

October 21, 2024 SELYA, Circuit Judge. The petitioner, José Antonio

Garcia Oliva, seeks judicial review of a final order of the Board

of Immigration Appeals (BIA), which denied his application for

asylum, withholding of removal, and protection under the United

Nations Convention Against Torture (CAT). Concluding, as we do,

that the BIA's order is supported by substantial evidence, we deny

the petition.

I

We briefly rehearse the relevant facts and travel of the

case. The petitioner is a Guatemalan national who entered the

United States on a tourist visa in January of 2000. He overstayed

his tourist visa and — eighteen years after his entry into the

United States — applied for asylum in April of 2018. Later, the

Department of Homeland Security commenced removal proceedings

against the petitioner, charging that he was present in the United

States without being admitted or paroled. See 8 U.S.C.

§ 1182(a)(6)(A)(i). In September of 2018, the petitioner filed

written pleadings in which he conceded removability but cross-

applied for asylum, withholding of removal, and protection under

the CAT.

The petitioner's written asylum application stated that

he last left Guatemala in January of 2000. When asked to list

each of his entries into the United States, the petitioner listed

only one entry: through Miami in January of 2000. The petitioner

- 2 - stated that he did not apply for asylum within one year of his

arrival in the United States because he was unaware of the legal

requirement that he do so.

The petitioner's application also stated that, while in

Guatemala, he worked as a bodyguard for a congressman. According

to his application, the petitioner's job was dangerous. He said

that since his life was constantly at risk, he fled Guatemala.

The application added that he feared returning to Guatemala because

he believed that he would be the target of extortions and threats

by gang members. For the same reason, he was afraid of being

tortured.

The petitioner's more detailed asylum affidavit,

subsequently filed, reiterated that his job as a bodyguard for a

congressman was very dangerous. The affidavit explained that the

petitioner's uniform identified the congressman's political party:

the National Advancement Party (PAN). The affidavit further stated

that, as a bodyguard, the petitioner needed to carry a gun at all

times.

In the petitioner's view, the petitioner's engagement

with the congressman was the source of imminent peril even after

his tour of duty was completed. The affidavit described an

incident that allegedly occurred after the petitioner stopped

working as a bodyguard. On that occasion, the petitioner was

approached by two men who said that they were looking for him.

- 3 - The men wanted the petitioner to go with them, but the petitioner

refused. The petitioner believed that the men wanted to kill him

because of his previous work as a bodyguard for PAN. The

petitioner's affidavit claimed that it is not uncommon in Guatemala

for rival politicians to order murders and to attack individuals

who belong to different political parties.

On December 19, 2018, a hearing was held before an

Immigration Judge (IJ). The petitioner testified on his own

behalf. Once again, he described the perils that he feared were

awaiting him in Guatemala.

At the conclusion of the hearing, the IJ rendered a

decision in which she first found that the petitioner was not a

credible witness. In her view, the petitioner's answers to

questions were vague and, notably, his oral testimony differed in

material respects from his written account (despite the

petitioner's assurance that the contents of his written

application were true and correct).

These discrepancies included, among other things:

• The petitioner testified that he had entered the

United States numerous times during previous years,

but these trips were not listed on his asylum

application.

• During the hearing, the petitioner described two

incidents in which armed individuals unknown to the

- 4 - petitioner supposedly barged into a store half a

block away from his home and told the proprietor

that they were looking for the petitioner. But

neither of these incidents was mentioned in the

petitioner's written application for asylum, even

in response to questions as to whether he, his

family, his friends, or close colleagues had ever

experienced harm, mistreatment, or threats in the

past. The petitioner omitted any reference to

these incidents despite them being "clearly []

responsive" to the question. Instead, his

application spoke only "generally" regarding

violence in Guatemala.

• The affidavit that accompanied the petitioner's

asylum application did not mention these incidents

at all. Rather, it related only an incident in

which two men (with no mention of whether they were

armed) approached the petitioner in Guatemala and

sought to have him go with them.

Given these glaring discrepancies, the IJ found the

petitioner's story implausible. Moreover, she questioned the

legitimacy of the petitioner's fear of remaining in Guatemala both

at the time of his flight and at the time of the hearing. In the

IJ's view, if the petitioner "truly feared that people were looking

- 5 - for him and have gotten as close to his home as just half a block

away, and that they were armed, it does not make any

sense . . . that [the petitioner] would remain in the country of

Guatemala for an additional few months before departing for the

United States when he . . . could have left that same day."

Having found the petitioner's testimony incredible, the

IJ buttressed her adverse credibility determination by noting the

petitioner's use of false documentation while in the United States

and his repeated violations of the law (by, for example, driving

a motor vehicle without a valid license). With respect to the

untimeliness of the petitioner's asylum application — filed

eighteen years after his arrival in the United States — the IJ

found that no extraordinary circumstance excused the delay in

filing.1

The IJ further found that the petitioner had not suffered

past persecution. There was no evidence of past physical harm and

the third-party threat received at a store half a block from his

home did not amount to past persecution. Those threats were

neither imminent nor capable of being carried out by the men who

1 After finding the petitioner's asylum application to be untimely, the IJ analyzed the petitioner's claims of past and future persecution "in the alternative in the event that the" BIA did "not uphold the [IJ's] finding on the timeliness of the application." Because the BIA did not expand on the timeliness issue, and because we uphold the BIA's decision on other grounds, we, too, refrain from addressing the timeliness issue.

- 6 - voiced them. After all — as the IJ observed — the petitioner had

not established that the men actually sought to harm him. He had

not even established who the men were.

The IJ went on to find that the petitioner had not

established a well-founded fear of future persecution. The

petitioner did not demonstrate that if he returned to Guatemala,

anyone would seek to target him either on account of his former

work as a bodyguard or on account of any other protected ground.

See 8 U.S.C. § 1101(a)(42)(A). Finally, the IJ found that the

petitioner did not provide enough specific information regarding

how he would be targeted in order to satisfy his burden for relief

under the CAT.

The petitioner appealed the IJ's decision. On September

14, 2023, the BIA affirmed. The BIA reasoned that — even apart

from considerations of credibility and timeliness — the petitioner

had not established eligibility for asylum on account of past

persecution or a well-founded fear of future persecution. The BIA

specifically noted that the petitioner's account of armed men

visiting a nearby store did not rise to the level of past

persecution. The BIA also determined that the petitioner failed

to make any meaningful claim that threats had been made against

him in Guatemala in the past twenty years, that anyone would seek

to target him on account of employment with PAN, or that his status

as a former bodyguard would lead to him being harmed. Finally,

- 7 - the BIA upheld the IJ's findings that the petitioner did not

establish eligibility either for withholding of removal or for

protection under the CAT.

This timely petition for judicial review followed.

II

Where, as here, the BIA's decision rests primarily on

the IJ's decision, we review the two decisions as a unit. See

Zaruma-Guaman v. Wilkinson, 988 F.3d 1, 5 (1st Cir. 2021). To

obtain asylum, the petitioner had to show that he was a "refugee"

as defined by the Immigration and Nationality Act. 8 U.S.C.

§ 1158(b)(1). Thus, the petitioner needed to prove that he was

"unable or unwilling to return to his homeland on account of either

past persecution or a well-founded fear of future persecution."

Zaruma-Guaman, 988 F.3d at 5. He also had to prove that this

persecution (whether occurring in the past or feared to occur in

the future) was on account of one of the five statutorily protected

grounds, namely, "race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C.

§ 1101(a)(42)(A). When a petitioner successfully proves past

persecution, a rebuttable presumption of future persecution

arises. See Rivera-Coca v. Lynch, 844 F.3d 374, 378-79 (1st Cir.

2016).

In asylum cases, a petitioner may prove his entitlement

to asylum "by [his] own testimony if that testimony is specific

- 8 - and credible." Chhay v. Mukasey, 540 F.3d 1, 6 (1st Cir. 2008).

By the same token, an adverse credibility determination,

appropriately reached, "may in itself suffice to defeat an alien's

claim for asylum." Mashilingi v. Garland, 16 F.4th 971, 977 (1st

Cir. 2021). Because the petitioner's own testimony is critical to

carrying his burden of establishing sufficient proof of

persecution (either past or feared), we start with the IJ's

determination that the petitioner's testimony was not credible.

For the sake of completeness, we then address the petitioner's

failed attempt to prove persecution.

Our starting point is the IJ's adverse credibility

determination. We conduct our review under the deferential

"substantial evidence" standard. Id. Under this standard, "[a]s

long as the agency's credibility determination is 'supported by

reasonable, substantial, and probative evidence on the record

considered as a whole,' we must accept it." Zaruma-Guaman, 988

F.3d at 5 (quoting Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir.

2009)). Absent an error of law, "we will reverse only if the

record is such as to compel a reasonable factfinder to reach a

contrary determination." Id. (quoting Chhay, 540 F.3d at 5).

When making credibility judgments, IJs must consider

"the totality of the circumstances" and a litany of factors

delineated by Congress, viz.:

- 9 - [T]he demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), 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, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii).

The petitioner argues that the IJ's adverse credibility

determination was mistaken for several reasons, including that any

inconsistencies were not significant enough to justify an adverse

credibility determination; that the petitioner provided candid

testimony; and that the petitioner offered reasonable but

uncredited explanations in response to the IJ's probing.

Notwithstanding the petitioner's attack, we conclude that the IJ's

adverse credibility determination withstands scrutiny.

Our review of the record leads us to conclude that the

IJ acted appropriately in relying on the petitioner's differing

accounts of interactions with men in Guatemala and his inconsistent

testimony regarding entries into the United States to undermine

his credibility. We add, moreover, that — contrary to the

petitioner's importunings — the IJ appropriately considered what

- 10 - she perceived as the petitioner's lack of candor and lack of

responsiveness in finding the petitioner not credible. See

Zaruma-Guaman, 988 F.3d at 6 (noting that "a judicial officer who

sees and hears a witness has a superior coign of vantage in

assessing that witness's credibility"). And the weight that the

IJ assigned to the petitioner's various explanations, including

those regarding his use of false documentation, was reasonable.

Nothing about the IJ's assessments throws shade on her adverse

credibility determination. See Mashilingi, 16 F.4th at 978; see

also Jianli Chen v. Holder, 703 F.3d 17, 26 (1st Cir. 2012).

To be sure, the petitioner argues that some of the

inconsistencies relied upon by the IJ were immaterial. That

argument does not gain him any traction: the IJ specifically

identified a number of inconsistencies and instances of

contradictory testimony, which cumulatively persuaded her of the

petitioner's lack of credibility. These included varying accounts

regarding either the petitioner or a shop owner being approached

by men, armed or not, and either being interrogated about the

petitioner's whereabouts or being told to accompany the men. The

inconsistencies were pervasive and included the petitioner's

divergent versions of basic facts, such as the number of times

that he had entered the United States in the past.

Even if we credit the petitioner's claim that the

inconsistencies that the IJ identified did not go to the heart of

- 11 - the matter, the pervasiveness of the petitioner's inconsistencies

could fairly lead a reasonable factfinder to conclude that the

petitioner was an unreliable witness. Mashilingi, 16 F.4th at

978. Consequently, we conclude that the IJ's adverse credibility

determination is supported by substantial evidence on the record

as a whole. It follows, then, that the agency's denial of the

petitioner's asylum claim is unimpugnable.

III

We next address the BIA's gloss that, even if the

petitioner's asylum request did not fail for lack of credibility,

he had not demonstrated either past persecution or a well-founded

fear of future persecution. The petitioner contends that the armed

men's multiple threats rose to the level of past persecution based

on his status as a former bodyguard and/or his affiliation with a

particular political party. In a similar vein, the petitioner

contends that he proved a well-founded fear of future persecution

based on these threats and the violent political climate that

currently grips Guatemala.

These contentions are futile. The record contains ample

support for the BIA's holding: the petitioner's testimony simply

did not furnish sufficient evidence to establish past persecution

within the meaning of our precedents. Even were we to leave to

one side the adverse credibility determination, the BIA

supportably found that the petitioner's evidence, taken at face

- 12 - value, failed to establish that the petitioner was eligible for

asylum based either on his political opinion or membership in the

social group of "former bodyguards." After all, the petitioner

had failed to ascribe any motivation for the men's inquiries.

So, too, the BIA supportably found that the vague,

third-party threats of the unidentified men did not rise to the

level of past persecution. See Ang v. Gonzales, 430 F.3d 50, 56

(1st Cir. 2005). Nor did the petitioner show an objectively

reasonable basis for a well-founded fear of future persecution.

See Rivera-Coca, 844 F.3d at 380; Palma-Mazariegos v. Gonzales,

428 F.3d 30, 35 (1st Cir. 2005). Finally, as the BIA explained,

the petitioner did not meaningfully identify any continuing threat

of harm against him, let alone against him on account of his

political party affiliation or former work as a bodyguard.

IV

We need go no further. We hold that the BIA's denial of

the petitioner's claim for asylum must stand. We also hold that

the petitioner's counterpart claim for withholding of removal

fails. See Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009).

And, finally, we note that apart from country conditions reports,

the petitioner did not present any evidence that, if repatriated,

he would face torture with the consent or acquiescence of the

Guatemalan government. Thus, the BIA's rejection of the

petitioner's CAT claim must also stand. See Mendez-Barrera v.

- 13 - Holder, 602 F.3d 21, 27-28 (1st Cir. 2010). The petition for

judicial review is therefore

Denied.

- 14 -