Gustavo Perez-Reyes v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 8, 2022
• Docket: 20-72333
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUSTAVO PEREZ-REYES, AKA Gustavo No. 20-72333 Perez, Agency No. A071-602-533 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 12, 2022** Pasadena, California

Before: WARDLAW and BENNETT, Circuit Judges, and KATZMANN,*** Judge.

Gustavo Perez-Reyes, a native and citizen of Mexico, challenges 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 Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of the

Immigration Judge’s (“IJ’s”) denial of his claims for asylum, withholding of

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

jurisdiction under 8 U.S.C. § 1252(a)(1) and dismiss the petition in part and deny it

in part.

We lack jurisdiction to consider Perez-Reyes’s eligibility for asylum or

cancellation of removal. See Szonyi v. Whitaker, 915 F.3d 1228, 1233 (9th Cir.

2019) (“A petitioner’s failure to raise an argument before the BIA generally

constitutes a failure to exhaust, thus depriving this court of jurisdiction to consider

the issue.”). The IJ pretermitted and denied the asylum application because Perez-

Reyes conceded his application was untimely. He failed to argue that changed

circumstances affected his eligibility for asylum or that extraordinary

circumstances caused the delay in applying within one year of his arrival. The BIA

affirmed. Because Perez-Reyes conceded that his asylum application was untimely

and did not argue an exception to the one-year rule to the IJ or BIA, he has failed

to exhaust his claim that changed circumstances apply to his case.

Similarly, Perez-Reyes conceded before the IJ that his conviction under Cal.

Penal Code § 273.5 rendered him ineligible for cancellation of removal. He did

not challenge the IJ’s decision to pretermit his cancellation application on these

grounds in his appeal to the BIA. Therefore, his claim that the domestic violence

2 bar under 8 U.S.C. § 1229b(b)(1)(C) does not apply is unexhausted. We dismiss

his petition as related to asylum and cancellation of removal.

Perez-Reyes waived his argument that the IJ abused her discretion in

denying his request for a continuance because he did “not specifically and

distinctly argue[] [the issue] in [his] opening brief.” Koerner v. Grigas, 328 F.3d

1039, 1048 (9th Cir. 2003) (quoting United States v. Ullah, 976 F.2d 509, 514 (9th

Cir. 1992)).

Perez-Reyes’s remaining claims for withholding of removal and CAT

protection are foreclosed by the IJ’s adverse credibility finding, which we review

for substantial evidence, taking the totality of the circumstances into account. See

Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir. 2021). We also review for

substantial evidence the agency’s factual findings, which we must uphold unless

“any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B).

An adverse credibility finding is proper if it is based on “any relevant factor

that, considered in light of the totality of the circumstances, can reasonably be said

to have a ‘bearing on a petitioner’s veracity.’” Ren v. Holder, 648 F.3d 1079, 1084

(9th Cir. 2011) (quoting Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010));

see also 8 U.S.C. § 1158(b)(1)(B)(iii) (“[A] trier of fact may base a credibility

determination on . . . any inaccuracies or falsehoods in [the applicant’s] statements,

3 without regard to whether an inconsistency, inaccuracy, or falsehood goes to the

heart of the applicant’s claim . . . .”).

The agency found Perez-Reyes’s testimony not credible because of

inconsistencies, among other reasons, and rejected his explanations for the

inconsistencies. Perez-Reyes testified in January 2014 that he did not have any

“fear whatsoever of returning to Mexico,” then upon further questioning said he

feared “just criminals.” Only later in 2018 did he testify that he was beaten,

detained, and robbed by police officers. When asked about these incidents on

cross-examination, he could not remember the number of times the police beat

him. He did not mention this abuse by government officials in his application or

declaration, though he did include the violence his brother faced.

Perez-Reyes’s testimony also conflicted with documentary evidence. The

police reports filed by his brother show that his brother was robbed while boarding

a bus in 2004 and robbed by a male suspect on the sidewalk in 2006, not

kidnapped, beaten, and robbed by the police twice in 2016 as Perez-Reyes had

testified.

For these reasons, Perez-Reyes cannot point to any evidence compelling the

conclusion that his testimony was sufficiently credible, persuasive, or specific to

sustain his burden of proof for withholding of removal or CAT protection. 8

U.S.C. § 1158(b)(1)(B)(ii).

4 PETITION DISMISSED IN PART AND DENIED IN PART.