Lopez Santiago v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2023
• Docket: 21-1369
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ADRIAN LOPEZ SANTIAGO, No. 21-1369 Agency No. Petitioner, A073-939-550 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 8, 2023** Pasadena, California

Before: GRABER and OWENS, Circuit Judges, and TUNHEIM, District Judge.***

Petitioner Adrian Lopez Santiago, a native and citizen of El Salvador,

timely petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal of an immigration judge’s (“IJ”) decision that denied his

* 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 John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”) and found that Petitioner abandoned his

application for Temporary Protected Status (“TPS”). We review de novo legal

conclusions and review for substantial evidence factual findings. Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). We deny

the petition.

1. Substantial evidence supports the IJ’s adverse credibility finding. The

BIA properly applied pre-REAL ID Act credibility standards because of the

filing date of Petitioner’s initial application for relief. Therefore, to support an

adverse credibility finding, identified inconsistencies and omissions must go “to

the heart” of the claim. See, e.g., Singh v. Gonzales, 439 F.3d 1100, 1108 (9th

Cir. 2006), overruled on other grounds by Maldonado v. Lynch, 786 F.3d 1155,

1164 (9th Cir. 2015) (en banc); cf. Alam v. Garland, 11 F.4th 1133, 1135–36

(9th Cir. 2021) (en banc) (noting that the REAL ID Act eliminated the

requirement that inconsistencies and omissions go to the heart of the claim).

Several of the grounds on which the IJ and the BIA relied to support the adverse

credibility finding meet that standard.

First, Petitioner’s testimony was inconsistent concerning whether he

received any telephoned threats from the Farabundo Martí National Liberation

Front (“FMLN”) and concerning the number of times his mother received

threats. Those inconsistencies go the heart of Petitioner’s claim: the extent of

alleged harm from the FMLN and Petitioner’s fear of their continued interest in

2 him are “central to [P]etitioner’s version of why he was persecuted and fled.”

Singh, 439 F.3d at 1108.

In addition, the agency permissibly relied on Petitioner’s submission of a

false asylum application made under his brother’s name in 1996. See Singh v.

Holder, 638 F.3d 1264, 1272 (9th Cir. 2011) (holding that presentation of

fraudulent documents when a petitioner was safely in the United States sufficed

to support an adverse credibility finding).

Third, Petitioner testified that FMLN members shot at him four times, but

he omitted those events from his asylum applications. The agency permissibly

relied on those omissions because they, too, go to the heart of Petitioner’s claim,

are non-trivial, and would bolster the claim of past persecution. See Zamanov

v. Holder, 649 F.3d 969, 974 (9th Cir. 2011) (ruling that the earlier omission of

incidents that “would have added great weight” to the claim is a permissible

reason to doubt a petitioner’s credibility).

The IJ was not obliged to accept Petitioner’s explanations for the

inconsistencies, the submission of a false document, and the omissions. See

Kin v. Holder, 595 F.3d 1050, 1057–58 (9th Cir. 2010) (upholding an adverse

credibility determination when the petitioner’s “explanation [was] not

persuasive enough to compel the conclusion that the omissions were

immaterial”).

Even if we were to apply the post-REAL ID Act standard and consider

the “totality of the circumstances,” Alam, 11 F.4th at 1135, we would conclude

3 that substantial evidence supports the adverse credibility finding. Accordingly,

Petitioner’s claims for asylum and withholding of removal fail.

2. With respect to the CAT claim, the non-testimonial evidence in the

record, to the extent that it exists, does not compel a finding that Petitioner is

eligible for CAT protection. See Farah v. Ashcroft, 348 F.3d 1153, 1156–57

(9th Cir. 2003) (rejecting a CAT claim where the petitioner “point[ed] to no

other evidence” than “the same statements” that were deemed not credible).

3. The BIA did not abuse its discretion by denying Petitioner’s request to

reinstate his application for Temporary Protected Status, which his counsel had

withdrawn. The IJ reasonably determined that Petitioner’s counsel abandoned

the TPS application at the merits hearing in October 2018. Thus, we review for

abuse of discretion the BIA’s denial of Petitioner’s request to reinstate his TPS

application. See Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 (9th Cir.

2003) (analogizing a request to reinstate an asylum application to a motion to

reopen and reviewing for abuse of discretion). The BIA acted within its

discretion to conclude that Petitioner was bound by his counsel’s strategic

choices. See Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986)

(“Petitioners are generally bound by the conduct of their attorneys, including

admissions made by them, absent egregious circumstances.”); Matter of

Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986) (expressing the same

principle).

PETITION DENIED. The stay of removal remains in place until the

4 mandate issues.