Jose Aldana Sosa v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2022
• Docket: 16-73875
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ROBERTO ALDANA SOSA, No. 16-73875

Petitioner, Agency No. A205-476-548

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 15, 2022** San Francisco, California

Before: S.R. THOMAS, GOULD, and BEA, Circuit Judges.

Petitioner Jose Aldana Sosa seeks review of the Board of Immigration

Appeals’ (“BIA”) dismissal of his appeal from an Immigration Judge’s (“IJ”)

decision denying his application for withholding of removal, asylum, and protection

under the Convention Against Torture (“CAT”). We write for the parties and assume

* 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). their familiarity with the facts. We have jurisdiction under 8 U.S.C. § 1252. We

deny the petition for review.

1. Petitioner argues that the IJ failed to make an explicit adverse credibility

finding, and that therefore, the BIA should have remanded to the IJ with instructions

to make an express credibility determination. However, this assertion is plainly

contradicted by the IJ’s written decision. Under Section III.D, entitled “Credibility,”

the IJ found as follows: “The Court finds that the respondent’s testimony was not

consistent with the affidavit in his I-589 asylum application. . . . The Court finds that

the respondent lacks credibility.” (emphasis in original). An adverse credibility

finding “does not require the recitation of a particular formula.” Tijani v. Holder,

628 F.3d 1071, 1080 (9th Cir. 2010). Here, it is clear the IJ made an explicit adverse

credibility determination.

2. “Because the BIA adopted the IJ’s decisions, we review not only the

decision of the BIA, but those of the IJ as well.” B.R. v. Garland, 26 F.4th 827, 835

n.4 (9th Cir. 2022) (citing Matter of Burbano, 20 I. & N. Dec. 872, 876 (BIA 1994)).

The IJ’s adverse credibility determination is supported by substantial evidence. In

his I-589 application, Petitioner stated that he had been in a motorcycle accident in

which the brother of a bodyguard for local drug traffickers was killed, resulting in

the bodyguard making threats against Petitioner’s life. However, Petitioner’s

submitted evidence contains only a single police report concerning an automobile

2 accident, one in which the affected motorcyclist lived, having suffered only a broken

bone. When asked why he failed to submit a police report of the allegedly fatal

motorcycle accident, Petitioner gave no answer, stating that “[i]t was my mistake to

not clear that up, but if you give me another opportunity, I will.” Yet on appeal,

Petitioner failed to produce this police report to the BIA. Additionally, when asked

by the IJ why Petitioner presently feared harm in Guatemala, he referred to the

incident of his father being killed by cattle thieves, although he acknowledged that

these cattle thieves had not threatened him in any way. Ultimately, Petitioner

admitted that “life in Guatemala is too hard. That’s why I don’t want to go back

there.” Altogether, substantial evidence supports the IJ’s adverse credibility finding.

3. Even assuming that Petitioner had credibly testified, his withholding of

removal and asylum claims would nonetheless fail. Before the IJ, Petitioner argued

membership in the particular social group of “Males in Guatemala who have refused

to pay taxes imposed by gang members.” The IJ did not err in holding that this is

not a cognizable social group. See Ochoa v. Gonzales, 406 F.3d 1166, 1170–71 (9th

Cir. 2005) (holding that “business owners in Colombia who rejected demands by

narco-traffickers to participate in illegal activity” was too broad to qualify as a

particular social group), abrogated on other grounds by Henriquez-Rivas v. Holder,

707 F.3d 1081 (9th Cir. 2013) (en banc).

4. The IJ’s determination that Petitioner was ineligible for CAT protection is

3 supported by substantial evidence. Petitioner never alleged that any harm he feared

would occur “by or at the instigation of or with the consent or acquiescence of a

public official acting in an official capacity or other person acting in an official

capacity.” 8 C.F.R. § 208.18(a)(1). Instead, when discussing why he failed to alert

the Guatemalan police of the aforementioned threats from the gang-affiliated

bodyguard, Petitioner made general statements that “the police, they are bribed by

[the gangs].” When asked if he had any evidence in the form of “letters, affidavits,

documents, [or] federal police reports” that the police were corrupted by the

individuals he feared, Petitioner replied: “No, I don’t have that.” Petitioner raised

no other issues concerning the Guatemalan government or police. Accordingly, his

CAT claims fail.

PETITION FOR REVIEW DENIED