Jamie Oviedo Garcia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2022
• Docket: 17-71700
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMIE OVIEDO GARCIA, AKA Jamie No. 17-71700 Oviedo, Agency No. 077-284-059 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.

Jamie Oviedo Garcia, a native and citizen of Mexico, challenges the 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 Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. 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, cancellation of removal, and protection under the Convention Against

Torture (“CAT”). Exercising our jurisdiction under 8 U.S.C. § 1252(a)(1), we

dismiss the petition in part and deny it in part.

As a threshold matter, we lack jurisdiction to consider Oviedo Garcia’s

argument that changed circumstances excuse his belated application for asylum.

See Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (“Our jurisdiction

to review mixed questions of law and fact is limited to instances where the

underlying facts are ‘undisputed.’” (quoting Husyev v. Mukasey, 528 F.3d 1172,

1178–79 (9th Cir. 2008))). The IJ pretermitted and denied Oviedo's asylum

application because it rejected the facts underlying his changed circumstances

argument as unreliable and unpersuasive. The BIA affirmed. Here, the evidence

demonstrating Oviedo’s alleged changed circumstances is disputed by both parties,

and was rejected as not credible by the BIA and IJ. We therefore lack jurisdiction

over the BIA’s decision to pretermit Oviedo’s asylum application on the basis of

his failure to show changed circumstances.1

1 Even a de novo review of the BIA’s application of the law to the undisputed facts alone likewise supports denial of Oviedo’s petition for review. In light of the various factors underlying the agency’s adverse credibility determinations, discussed below, the record “does not compel the conclusion that [Oviedo] has shown ‘changed circumstances’ so that [his] asylum application should have been

2 With respect to Oviedo’s argument that his application for cancellation of

removal was improperly pretermitted, we affirm the decision of the BIA. The

Immigration and Nationality Act expressly provides that the IJ or BIA may only

cancel the removal of an individual who “has not been convicted of an offense

under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of [8 U.S.C.].” 8 U.S.C. §

1229b(b)(1)(C). We have previously held that a crime of domestic violence under

California Penal Code § 273.5 is “categorically a crime of domestic violence

within the meaning of [8 U.S.C.] § 1227(a)(2)(E)(i).” Carrillo v. Holder, 781 F.3d

1155, 1159 (9th Cir. 2015). Because Oviedo has not disputed his prior conviction

for a crime of domestic violence under § 273.5, he is categorically ineligible for

cancellation of removal pursuant to 8 U.S.C. § 1229b(b). The BIA therefore

properly pretermitted and denied his application.

Oviedo’s remaining claims for withholding of removal and CAT protection

are foreclosed by the agency’s adverse credibility determinations. We review such

determinations for substantial evidence, considering “the ‘totality of the

circumstances[] and all relevant factors.’” Alam v. Garland, 11 F.4th 1133, 1137

(9th Cir. 2021) (en banc) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)) (alteration in

original). The BIA’s findings of fact are likewise reviewed for substantial

considered notwithstanding its late filing.” Ramadan v. Gonzales, 479 F.3d 646, 657 (9th Cir. 2007).

3 evidence, and must be upheld “unless the evidence compels a contrary result.”

Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003) (citations omitted).

So long as an adverse credibility determination reflects “a reasoned analysis

of the evidence as a whole,” it may be based upon “any . . . relevant factor.” Ai Jun

Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014) (first quoting Tamang v.

Holder, 598 F.3d 1089, 1093 (9th Cir. 2010); then quoting 8 U.S.C. §

1158(b)(1)(B)(iii); and then quoting Shrestha v. Holder, 590 F.3d 1034, 1040 (9th

Cir. 2010)). Such factors include “the consistency between the applicant’s . . .

written and oral statements . . . , the internal consistency of each such statement . . .

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.” 8 U.S.C. § 1158(b)(1)(B)(iii).

The agency’s adverse credibility determinations were based on the numerous

inconsistencies between Oviedo’s written and oral testimony, as well as his failure

to adequately explain those inconsistencies.2 For example, Oviedo testified before

the IJ that his brother-in-law Fernando and nephew Oscar were kidnapped “when

2 Where, as here, “‘the BIA reviewed the IJ’s credibility-based decision for clear error and relied upon the IJ’s opinion as a statement of reasons but did not merely provide a boilerplate opinion,’ we review ‘the reasons explicitly identified by the BIA, and then examine the reasoning articulated in the IJ’s . . . decision in support of those reasons.’” Kumar v. Garland, 18 F.4th 1148, 1152–53 (9th Cir. 2021) (quoting Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014)).

4 they went to get firewood.” However, in his previous declaration to the court, he

indicated that the kidnapping took place while the victims were “on the way to

work.” Likewise, Oviedo stated variously that the only victims were Fernando and

Oscar, and that Fernando, Oscar, and two additional family members (a young man

named Luis and his father) were all kidnapped. Nor could Oviedo consistently

identify who perpetrated the kidnapping, who was released and when, or how

much ransom money he or his family members paid. With respect to each of these

inconsistencies, the IJ found (and the BIA affirmed) that Oviedo had provided no

reasonable explanation for his changing testimony.

In light of the foregoing, we are not compelled to conclude that Oviedo’s

testimony was sufficiently credible to carry his burden of proof for withholding of

removal or CAT protection. 8 U.S.C. § 1158(b)(1)(B)(ii).

PETITION DISMISSED IN PART AND DENIED IN PART.