JOSE ALFARO HENRIQUEZ V. MERRICK GARLAND

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 30, 2022
• Docket: 17-72916
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 30 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE NAPOLEON ALFARO No. 17-72916 HENRIQUEZ, Agency No. A073-877-512 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 9, 2022** Pasadena, California

Before: BEA, IKUTA, and CHRISTEN, Circuit Judges.

Petitioner Jose Napoleon Alfaro Henriquez, a native and citizen of

Honduras, petitions for review from the denial of his application for withholding of

removal and relief under the Convention Against Torture (CAT). An immigration

* 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). judge (IJ) denied petitioner’s application, and the Board of Immigration Appeals

(BIA) dismissed his appeal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and

we deny the petition.

Because the parties are familiar with the facts, we do not recite them here.

We review for substantial evidence the agency’s factual findings, including

adverse credibility determinations. Tawadrus v. Ashcroft, 364 F.3d 1099, 1102

(9th Cir. 2004). We review de novo conclusions of law. Shrestha v. Holder, 590

F.3d 1034, 1048 (9th Cir. 2010). In assessing an adverse credibility finding under

the REAL ID Act, the court “must look to the ‘totality of the circumstances and all

relevant factors.’” Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc)

(alteration omitted) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).

1. Considering the totality of the circumstances, we conclude that substantial

evidence supports the IJ’s adverse credibility determination. Petitioner argues he

“never denied any arrests or convictions.” That is plainly wrong. Petitioner

omitted numerous aspects of his criminal history on his application, which asked if

he had been “arrested, charged, convicted, or sentenced for any crimes in the

United States.” An omission can be a denial. To list only three crimes when there

are more is to deny the remainder. Petitioner also testified he had no other arrests

or convictions, and he did not disclose additional information about his criminal

2 history until the government specifically confronted him. This court gives “special

deference” to the IJ’s observations about demeanor, Singh-Kaur v. INS, 183 F.3d

1147, 1151 (9th Cir. 1999) (quoting Paredes-Urrestarazu v. INS, 36 F.3d 801,

818–19 (9th Cir. 1994)), and here, the record supports the IJ’s determination that

petitioner was non-responsive when answering questions, especially those about

his criminal history.

The BIA correctly acknowledged that the IJ misinterpreted petitioner’s

testimony about the timing of his injuries and ability to walk a long distance the

same day, but the BIA nevertheless concluded the IJ’s adverse credibility finding

was not clearly erroneous. Petitioner disputes the significance of the omitted

arrests and convictions, but this argument is not persuasive because petitioner’s

application and the government’s questions at the hearing asked if petitioner had

“any” additional arrests or convictions. Because the adverse credibility

determination was supported, the BIA’s determination that petitioner did not

establish his eligibility for withholding of removal under the Immigration and

Nationality Act (INA) was also supported by substantial evidence. See Shrestha,

590 F.3d at 1048.

In addition, the BIA correctly determined that petitioner is ineligible for

withholding of removal under the INA because he was convicted for possession of

3 drugs for sale, Cal. Health & Safety Code § 11359, which is presumed to be a

particularly serious crime. See Miguez-Miguez v. Gonzales, 500 F.3d 941, 946–49

(9th Cir. 2007) (discussing Matter of Y-L-, 23 I. & N. Dec. 270 (BIA 2002)); 8

C.F.R. § 208.16(d)(2). The agency’s conclusion that petitioner failed to overcome

that presumption with his own testimony is supported by substantial evidence.

2. The BIA’s determination that petitioner failed to show that he is eligible

for CAT relief is supported by substantial evidence because petitioner failed to

show that it is “more likely than not that he . . . would be tortured if removed to the

proposed country.” 8 C.F.R. §§ 208.16(c)(2), 208.17(a). In addition, petitioner

was ineligible for withholding of removal under CAT because of his prior

conviction for a particularly serious crime. 8 C.F.R. § 208.16(d)(2). Here, apart

from petitioner’s discredited testimony, the only evidence supporting petitioner’s

CAT claim is the country condition reports he submitted to the agency. The

portions of the reports on which petitioner relies support his argument that military

members engage in arbitrary killings and criminal activity. But having reviewed

the reports as a whole, including those portions the IJ cited, we conclude

substantial evidence supports the BIA’s determination that the reports do not

establish it is more likely than not that petitioner will be tortured by the military if

he returns to Honduras. See, e.g., Mukulumbutu v. Barr, 977 F.3d 924, 928 (9th

4 Cir. 2020) (“Mukulumbutu argues that the country conditions reports establish that

the DRC is ‘a dangerous place,’ but these reports do not demonstrate that

Mukulumbutu personally will face torture if he returns.”).

PETITION DENIED.