NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
GUILLERMO SOSA-GOMEZ, No. 21-70514
Petitioner, Agency No. A206-457-957
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 8, 2022** Phoenix, Arizona
Before: O’SCANNLAIN and GRABER, Circuit Judges, and FITZWATER,*** District Judge. Concurrence by Judge GRABER
Guillermo Sosa-Gomez petitions for review of an order of the Board of
Immigration Appeals (“BIA”) affirming the immigration judge (“IJ”)’s decision
* 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 Sidney A. Fitzwater, Senior United States District Judge for the Northern District of Texas, sitting by designation. denying Sosa-Gomez’s application for asylum and related relief. As the facts are
known to the parties, we repeat them only as necessary to explain our decision.
I
Sosa-Gomez waived his due process argument by failing to raise it before
the BIA. “As a general rule, if a petitioner fails to raise an issue before an
administrative tribunal, it cannot be raised on appeal from that tribunal.” Barron v.
Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (quoting Reid v. Engen, 765 F.2d
1457, 1460 (9th Cir. 1985)). Because Sosa-Gomez failed to exhaust his due
process argument, we lack jurisdiction to consider it. See id. (citing 8 U.S.C.
§ 1252(d)(1)).
Sosa-Gomez tries to reframe the argument as “not one of procedural due
process but of substantive due process,” because, he argues, “substantive due
process claims that the agency has no power to adjudicate need not be raised
before the [BIA].” We disagree with Sosa-Gomez’s reframing. Sosa-Gomez
argues that the IJ was biased and failed to provide him with a fair hearing—a
quintessentially procedural argument. Further, Sosa-Gomez does not and cannot
seriously contend that the BIA “has no power to adjudicate” issues concerning
procedure in the lower immigration courts. Accordingly, we must dismiss the
petition for review to the extent it relies on Sosa-Gomez’s unexhausted due process
argument.
2 II
Substantial evidence supports the IJ’s (and BIA’s) adverse credibility
determination regarding Sosa-Gomez.
Preliminarily, although Sosa-Gomez also failed to exhaust his adverse-
credibility-determination challenge, we have elsewhere explained that “[w]hen the
BIA has ignored a procedural defect and elected to consider an issue on its
substantive merits, we cannot then decline to consider the issue based upon this
procedural defect.” Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en
banc). Sosa-Gomez did not identify any specific factual errors to advance this
argument in his brief before the BIA, but he did identify it in his notice of appeal to
the agency, and the BIA then thoroughly reviewed the issue. We will therefore
consider the issue irrespective of the procedural defect. See id.
On the merits, Sosa-Gomez fails to demonstrate that “the evidence compels”
a conclusion contrary to the IJ’s—or, applied here, that “the evidence compels” the
conclusion that he was a credible witness. See Tekle v. Mukasey, 533 F.3d 1044,
1051 (9th Cir. 2008). The IJ must examine the “totality of the circumstances,”
“including, for example, the applicant’s responsiveness, consistency between
written and oral statements, the internal consistency of those statements, and any
inaccuracies or falsehoods ‘without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other
3 relevant factor.’” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (quoting
Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir. 2010) (in turn quoting
8 U.S.C. § 1158(b)(1)(B)(iii))). “[E]ven minor inconsistencies that have a bearing
on a petitioner’s veracity may constitute the basis for an adverse credibility
determination.” Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011).
Here, the IJ provided “specific, cogent reasons” for the adverse credibility
determination. See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005)
(quoting Malhi v. I.N.S., 336 F.3d 989, 993 (9th Cir. 2003)). These reasons
included Sosa-Gomez having “deliberately tried to deceive the Court with” his
assertion that he had not been fired; the IJ’s “unique opportunity to evaluate [Sosa-
Gomez’s] demeanor” and evasiveness; Sosa-Gomez’s criminal history; and Sosa-
Gomez’s lengthy, unexplained delay in seeking asylum. Moreover, our thorough
review satisfies us that the IJ’s decision, which was properly based on the totality
of the circumstances, enjoys sufficient record support.
III
Substantial evidence also supports the denial of Sosa-Gomez’s Convention
Against Torture (“CAT”) claim.
A
Sosa-Gomez contends the IJ should have given more weight to the expert
testimony of Dr. Slack, particularly Dr. Slack’s statement that police could not
4 protect (and may actively harm) Sosa-Gomez. But Sosa-Gomez fails to grapple
with the IJ’s main concern: Dr. Slack’s faulty assumptions. Dr. Slack stated that
he was basing his opinion on certain facts—primarily that Sosa-Gomez “and his
partner came across a vehicle filled with drugs and reported it” and that Sosa-
Gomez has been targeted “in retaliation for the drugs he reported.” Yet Sosa-
Gomez never “reported” any drugs; rather, he purports to have been a hapless
bystander in Ivan’s plan. Dr. Slack built his assessment on a false foundation, and
the IJ was entitled to discount it.
B
Sosa-Gomez also points to a declaration he submitted from Commander
Vazquez Varela Alberto, one of Sosa-Gomez’s former supervisors, who wrote:
I also want to mention that I as a Commander receive unofficially a lot of information and I am aware that Mr. Guillermo Sosa Gomez is procured by some elements of different corporations that are in collusion with different Organized Crime Organizations that operate in the State; such as the Salazar, Gente Nevea, the Ochoa, among others, all of these under the command of the Sinaloa cartel.
Commander Alberto’s remark does not undermine the IJ’s conclusion regarding
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
GUILLERMO SOSA-GOMEZ, No. 21-70514
Petitioner, Agency No. A206-457-957
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 8, 2022** Phoenix, Arizona
Before: O’SCANNLAIN and GRABER, Circuit Judges, and FITZWATER,*** District Judge. Concurrence by Judge GRABER
Guillermo Sosa-Gomez petitions for review of an order of the Board of
Immigration Appeals (“BIA”) affirming the immigration judge (“IJ”)’s decision
* 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 Sidney A. Fitzwater, Senior United States District Judge for the Northern District of Texas, sitting by designation. denying Sosa-Gomez’s application for asylum and related relief. As the facts are
known to the parties, we repeat them only as necessary to explain our decision.
I
Sosa-Gomez waived his due process argument by failing to raise it before
the BIA. “As a general rule, if a petitioner fails to raise an issue before an
administrative tribunal, it cannot be raised on appeal from that tribunal.” Barron v.
Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (quoting Reid v. Engen, 765 F.2d
1457, 1460 (9th Cir. 1985)). Because Sosa-Gomez failed to exhaust his due
process argument, we lack jurisdiction to consider it. See id. (citing 8 U.S.C.
§ 1252(d)(1)).
Sosa-Gomez tries to reframe the argument as “not one of procedural due
process but of substantive due process,” because, he argues, “substantive due
process claims that the agency has no power to adjudicate need not be raised
before the [BIA].” We disagree with Sosa-Gomez’s reframing. Sosa-Gomez
argues that the IJ was biased and failed to provide him with a fair hearing—a
quintessentially procedural argument. Further, Sosa-Gomez does not and cannot
seriously contend that the BIA “has no power to adjudicate” issues concerning
procedure in the lower immigration courts. Accordingly, we must dismiss the
petition for review to the extent it relies on Sosa-Gomez’s unexhausted due process
argument.
2 II
Substantial evidence supports the IJ’s (and BIA’s) adverse credibility
determination regarding Sosa-Gomez.
Preliminarily, although Sosa-Gomez also failed to exhaust his adverse-
credibility-determination challenge, we have elsewhere explained that “[w]hen the
BIA has ignored a procedural defect and elected to consider an issue on its
substantive merits, we cannot then decline to consider the issue based upon this
procedural defect.” Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en
banc). Sosa-Gomez did not identify any specific factual errors to advance this
argument in his brief before the BIA, but he did identify it in his notice of appeal to
the agency, and the BIA then thoroughly reviewed the issue. We will therefore
consider the issue irrespective of the procedural defect. See id.
On the merits, Sosa-Gomez fails to demonstrate that “the evidence compels”
a conclusion contrary to the IJ’s—or, applied here, that “the evidence compels” the
conclusion that he was a credible witness. See Tekle v. Mukasey, 533 F.3d 1044,
1051 (9th Cir. 2008). The IJ must examine the “totality of the circumstances,”
“including, for example, the applicant’s responsiveness, consistency between
written and oral statements, the internal consistency of those statements, and any
inaccuracies or falsehoods ‘without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other
3 relevant factor.’” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (quoting
Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir. 2010) (in turn quoting
8 U.S.C. § 1158(b)(1)(B)(iii))). “[E]ven minor inconsistencies that have a bearing
on a petitioner’s veracity may constitute the basis for an adverse credibility
determination.” Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011).
Here, the IJ provided “specific, cogent reasons” for the adverse credibility
determination. See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005)
(quoting Malhi v. I.N.S., 336 F.3d 989, 993 (9th Cir. 2003)). These reasons
included Sosa-Gomez having “deliberately tried to deceive the Court with” his
assertion that he had not been fired; the IJ’s “unique opportunity to evaluate [Sosa-
Gomez’s] demeanor” and evasiveness; Sosa-Gomez’s criminal history; and Sosa-
Gomez’s lengthy, unexplained delay in seeking asylum. Moreover, our thorough
review satisfies us that the IJ’s decision, which was properly based on the totality
of the circumstances, enjoys sufficient record support.
III
Substantial evidence also supports the denial of Sosa-Gomez’s Convention
Against Torture (“CAT”) claim.
A
Sosa-Gomez contends the IJ should have given more weight to the expert
testimony of Dr. Slack, particularly Dr. Slack’s statement that police could not
4 protect (and may actively harm) Sosa-Gomez. But Sosa-Gomez fails to grapple
with the IJ’s main concern: Dr. Slack’s faulty assumptions. Dr. Slack stated that
he was basing his opinion on certain facts—primarily that Sosa-Gomez “and his
partner came across a vehicle filled with drugs and reported it” and that Sosa-
Gomez has been targeted “in retaliation for the drugs he reported.” Yet Sosa-
Gomez never “reported” any drugs; rather, he purports to have been a hapless
bystander in Ivan’s plan. Dr. Slack built his assessment on a false foundation, and
the IJ was entitled to discount it.
B
Sosa-Gomez also points to a declaration he submitted from Commander
Vazquez Varela Alberto, one of Sosa-Gomez’s former supervisors, who wrote:
I also want to mention that I as a Commander receive unofficially a lot of information and I am aware that Mr. Guillermo Sosa Gomez is procured by some elements of different corporations that are in collusion with different Organized Crime Organizations that operate in the State; such as the Salazar, Gente Nevea, the Ochoa, among others, all of these under the command of the Sinaloa cartel.
Commander Alberto’s remark does not undermine the IJ’s conclusion regarding
torture; it says only that Sosa-Gomez “is procured by some elements of different
corporations that are in collusion with [still] different” organized crime
organizations. Such evidence does not “compel[] the conclusion” that Sosa-
Gomez will be tortured in Mexico. Cf. Tekle, 533 F.3d at 1051.
5 C
Sosa-Gomez’s suspect testimony also fails to satisfy his burden, as “when a
petitioner’s ‘claims under the [CAT] are based on the same statements . . . that the
BIA determined to be not credible’ in the asylum context, the agency may rely
upon the same credibility determination in denying both the asylum and CAT
claims.” Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015) (quoting Farah v.
Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003)). Moreover, the testimony also fails
to “show that it is more likely than not that [Sosa-Gomez] will be tortured . . . at
the instigation of, or with the consent or acquiescence of, the government.” See
Arteaga v. Mukasey, 511 F.3d 940, 948 (9th Cir. 2007). Sosa-Gomez admits the
only threat he has directly received was in 2014, when Miranda told Sosa-Gomez
and Ivan that the cartel wanted to kill them. His written statements speak to
incidents involving “[i]nformants to the police” and “many phone calls from men
asking about [Sosa-Gomez’s] whereabouts,” but he never connects these incidents
to actual police officials or the Mexican government. The BIA’s decision suffices
to show that it considered all the evidence. See Villegas Sanchez v. Garland, 990
F.3d 1173, 1182–83 (9th Cir. 2021).
IV
We DISMISS IN PART and DENY IN PART the petition for review.
6 Sosa-Gomez v. Garland, No. 21-70514 FILED GRABER, J., concurring in the judgment: FEB 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the judgment.