Hernandez-Martinez v. Whitaker

• Court: Court of Appeals for the First Circuit
• Decided: January 17, 2019
• Docket: 18-1381U
• Status: Unpublished

Opinion

Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 18-1381

MARCOS DIMAS HERNANDEZ-MARTINEZ,

Petitioner,

v.

MATTHEW G. WHITAKER,* ACTING ATTORNEY GENERAL,

Respondent.

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

Before

Lynch, Stahl, and Kayatta, Circuit Judges.

Daniel W. Chin, Kevin MacMurray, and MacMurray & Associates on brief for petitioner. Joseph H. Hunt, Assistant Attorney General, Civil Division, Paul Fiorino, Senior Litigation Counsel, Office of Immigration Litigation, and Deitz P. Lefort, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Matthew G. Whitaker has been substituted for former Attorney General Jefferson B. Sessions III as the respondent. January 17, 2019 LYNCH, Circuit Judge. Marcos Dimas Hernandez-Martinez,

of El Salvador, petitions for judicial review of a Board of

Immigration Appeals decision affirming an Immigration Judge's

denial of asylum, withholding of removal, and voluntary departure

under various provisions of the Immigration and Nationality Act.

8 U.S.C. § 1101 et seq. We deny the petition because each of the

BIA's two holdings is supported by the record: Hernandez-Martinez

failed to adequately raise the adverse credibility issue with the

BIA, and, in any event, the IJ's determination that Hernandez-

Martinez lacked credibility is supported by substantial evidence.

I.

Hernandez-Martinez entered the United States on May 10,

2012, near Hidalgo, Texas. He was apprehended and told the Border

Patrol that he did not fear returning to El Salvador. At his later

credible fear interview with an asylum officer on September 5,

2012, Hernandez-Martinez changed his story. He said that he did

fear returning to El Salvador, and that was because members of

Farabundo Martí National Liberation Front (FMLN), a Salvadoran

political party, threatened and harmed him after he refused their

demand that he plant illegal drugs at the coffee plantation where

he worked.

On May 5, 2017, the IJ denied Hernandez-Martinez's

applications for relief and ordered him removed. The IJ found

that Hernandez-Martinez's testimony was not credible and also that

- 3 - he had submitted a frivolous asylum application. In denying

Hernandez-Martinez's claims for relief, the IJ pointed to numerous

discrepancies, including the contradiction between Hernandez-

Martinez's statements when he first entered the United States and

during his credible fear interview, and further contradictions in

his testimony. Hernandez-Martinez testified at the asylum hearing

that he suffered injuries at the hands of FMLN members for which

he sought medical treatment, but he failed to mention this to the

asylum officer. Moreover, in his credible fear interview,

Hernandez-Martinez initially told the asylum officer that FMLN

members had taken him to a house and tortured him for hours.

Describing the same incident in the asylum hearing, however,

Hernandez-Martinez did not repeat this description, instead saying

only that the FMLN members punched him five or six times.

The IJ also noted that Hernandez-Martinez's mother

submitted a "letter" to the court, which did not support the

petitioner's claims and made no mention of the alleged FMLN attack.

And the IJ pointed out that Hernandez-Martinez's testimony at the

asylum hearing was internally contradictory regarding whether his

family was threatened or harmed by the FMLN and whether he was

affiliated with the FMLN's rival party, the Nationalist Republican

Alliance. The IJ found that when Hernandez-Martinez was asked to

explain the many inconsistencies and discrepancies, he did not do

- 4 - so satisfactorily, and he provided no corroborating evidence for

his claims.

The BIA upheld the denial of relief, save for reversing

the IJ's finding that Hernandez-Martinez had filed a frivolous

asylum application. The BIA first upheld the lack of credibility

finding as not clearly erroneous. The BIA also found that "[o]n

appeal, the respondent has not meaningfully challenged the adverse

credibility finding as it relates to asylum, withholding of

removal, . . . and voluntary departure." The BIA concluded that

"[w]hile the respondent briefly addresses the adverse credibility

finding in his Notice of Appeal, he then waived any challenges to

it by not developing or pursuing it in his brief."

Represented by new counsel, Hernandez-Martinez filed a

petition for review of the BIA's decision before this court.

II.

Because both the BIA and the respondent addressed both

of the IJ's holdings, we do so as well.

"[W]e may review a final order of the BIA only if 'the

alien has exhausted all administrative remedies available to the

alien as of right.'" Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.

2006) (quoting 8 U.S.C. § 1252(d)(1)). "The purpose of this

exhaustion requirement is to ensure that a court will not

commandeer an agency's prerogatives." Pineda v. Whitaker, 908

F.3d 836, 842 (1st Cir. 2018). "[I]t creates a carefully

- 5 - calibrated balance of responsibilities, affording the parties the

full benefit of the agency's expertise and allowing the agency the

first opportunity to correct its own bevues." Mazariegos-Paiz v.

Holder, 734 F.3d 57, 63 (1st Cir. 2013). "We apply the exhaustion

requirement 'not only to claims omitted from an appeal to the BIA

but also to claims that were insufficiently developed before the

BIA.'" Pérez Batres v. Lynch, 796 F.3d 157, 160 (1st Cir. 2015)

(quoting Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir. 2007)).

Hernandez-Martinez first argues to us that the BIA erred

in determining that he had waived any challenge to the credibility

finding in his briefing to the BIA. On this record, the BIA

properly found that Hernandez-Martinez waived his adverse

credibility argument. There was no error. See Kechichian v.

Mukasey, 535 F.3d 15, 21-22 (1st Cir. 2008); Estrada-Canales v.

Gonzales, 437 F.3d 208, 220 (1st Cir. 2006). Our own review shows

that Hernandez-Martinez's brief to the BIA only challenged the

IJ's frivolousness finding. It did not challenge the credibility

finding, much less provide an explanation as to why the credibility

finding should be overturned.

Hernandez-Martinez attempts to avoid the exhaustion

doctrine, arguing that it applies only when a petitioner fails to

raise a "full claim[] of relief," such as asylum or withholding of

removal. In essence, Hernandez-Martinez argues that it is enough

that before the BIA he said he challenged the IJ's denial of his

- 6 - claims for relief. He is wrong. "A failure to present developed

argumentation to the BIA on a particular theory amounts to a

failure to exhaust administrative remedies as to that theory."

Ramirez-Matias v. Holder, 778 F.3d 322, 327 (1st Cir. 2015); accord

De Lima v. Sessions, 867 F.3d 260, 267 (1st Cir. 2017). "The BIA

has the right to expect -- and insist upon -- more." Athehortua-

Vanegas v. I.N.S., 876 F.2d 238, 241 (1st Cir. 1989).

Hernandez-Martinez alternatively argues that he did

adequately raise the issue of the IJ's adverse credibility finding

before the BIA by doing so implicitly because "the standards of

frivolousness and adverse credibility are the same for all intents

and purposes." This is incorrect. Without accepting his premise

that an implicit argument ever suffices to exhaust, there was

nothing in the frivolousness argument to put the BIA on notice

that he was challenging the adverse credibility finding.

Further, a BIA decision reversing an IJ's frivolousness

finding does not itself undermine the IJ's finding that the

petitioner's testimony was not credible. Zheng v. Mukasey, 546

F.3d 70, 71 (1st Cir. 2008). A frivolousness finding requires a

showing that "any of [the application's] material elements [were]

deliberately fabricated." 8 C.F.R. § 1208.20. An adverse

credibility finding has no such requirement. An attack that

testimony was not deliberately fabricated does not itself attack

an adverse credibility finding.

- 7 - We turn to the BIA's other ground for affirmance. "[W]e

review the IJ's adverse credibility determination under the

deferential 'substantial evidence' standard, and must sustain it

'unless the record evidence would compel a reasonable factfinder

to make a contrary determination.'" Cuko v. Mukasey, 522 F.3d 32,

37 (1st Cir. 2008) (emphasis in original) (quoting Stroni v.

Gonzales, 454 F.3d 82, 87 (1st Cir. 2006)). "Specifically, we

narrowly inquire whether: (i) the discrepancies articulated by the

IJ and/or the BIA are actually present in the administrative

record; (ii) the discrepancies generate specific and cogent

reasons from which to infer that petitioner or his witnesses

provided non-creditworthy testimony; and (iii) petitioner failed

to provide a persuasive explanation for these discrepancies." Id.

The adverse credibility determination was supported by

substantial evidence. As described above, the IJ gave specific

and cogent reasons for his finding. Hernandez-Martinez was given

ample opportunity to explain the inconsistencies and discrepancies

in his story, but failed to do so and provided no corroborating

evidence. The record does not compel a different result regarding

Hernandez-Martinez's credibility.

The petition for review is denied. To the extent the

petition challenges the merits of the BIA's affirmance of the IJ's

credibility determination, we dismiss for lack of jurisdiction for

non-exhaustion.

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