George Napoles-Leyva v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2022
• Docket: 19-73041
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 29 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GEORGE NAPOLES-LEYVA, No. 19-73041

Petitioner, Agency No. A203-633-164

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney Gen- eral,

Respondent.

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

Submitted July 27, 2022** San Francisco, California

Before: GRABER and OWENS, Circuit Judges, and BAKER,*** International Trade Judge.

George Napoles-Leyva, a citizen of Cuba, petitions for review of the Board

of Immigration Appeals’ (BIA) decision dismissing his appeal from the order of an

* 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 M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Immigration Judge (IJ) denying his application for asylum and withholding of re-

moval and protection under the Convention Against Torture (CAT).1

We review the BIA’s denials of asylum and withholding of removal for sub-

stantial evidence and may reverse only if the evidence compels a contrary conclu-

sion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We also review

adverse credibility determinations for substantial evidence. Wang v. Sessions, 861

F.3d 1003, 1007 (9th Cir. 2017). Where, as here, the BIA’s decision cites Matter of

Burbano, 20 I&N Dec. 872 (BIA 1994), and also provides the Board’s own reasons,

we review both decisions. Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013).

1. The adverse credibility finding is supported by substantial evidence. The IJ

correctly emphasized that Napoles-Leyva’s inconsistent testimony concerning a

passport application involved “a significant life event involving an alleged torture

and the basis of Respondent’s claim. Claiming he cannot remember the sequences

of these significant events casts doubts on whether Respondent actually experienced

these events as he claimed.” The BIA noted that, on appeal, Napoles-Leyva failed to

address those issues and also failed to address the IJ’s adverse credibility finding.

Substantial evidence supports the administrative determinations. And contrary to

1 Napoles-Leyva did not appeal the denial of CAT relief to the BIA, which deemed that claim abandoned.

2 Napoles-Leyva’s assertions, the IJ gave Napoles-Leyva an opportunity to explain

and clarify the inconsistencies.

2. The IJ also found that there was no evidence to support a reasonable fear of

future persecution. Napoles-Leyva does not address that issue in his briefing here

and we therefore deem it waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60

(9th Cir. 1996).

3. Finally, Napoles-Leyva contends that the IJ violated his Fifth Amendment

due process rights by admitting evidence submitted by the government without giv-

ing him a chance to review it, by denying a continuance to allow him to obtain his

own supporting evidence, and by not stating that he familiarized himself with the

record as required by 8 C.F.R. § 1240.1(b). We lack jurisdiction to consider the due

process argument because Napoles-Leyva never raised it before the BIA. Brown v.

Holder, 763 F.3d 1141, 1146 (9th Cir. 2014).

Although Napoles-Leyva never filed a brief with the BIA, it is still possible

for a petitioner to assert a theory via the “Notice of Appeal” form he files with the

BIA. See, e.g., Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (rejecting

government’s waiver argument when notice of appeal and subsequent motion for

reconsideration raised ineffective assistance issue). The key is that the BIA must be

“given an opportunity to review and adjudicate” the petitioner’s claims “through

either direct appeal or the motion for reconsideration.” Id. Napoles-Leyva filed two

3 notices of appeal with the BIA, but neither one raised a due process theory. “When

a petitioner files no brief and relies entirely on the notice of appeal to make an im-

migration argument,” as Napoles-Leyva did here, “the notice of appeal serves in lieu

of a brief, and he will be deemed to have exhausted all issues raised therein,” but not

others. Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009).

PETITION DENIED IN PART AND DISMISSED IN PART.