Louidet Sistanis v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2023
• Docket: 20-72744
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LOUIDET SISTANIS; CHRISTELA JEAN, No. 20-72744

Petitioners, Agency Nos. A209-871-562 A209-867-749 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted March 14, 2023**

Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.

Louidet Sistanis and Christela Jean, natives and citizens of Haiti, petition pro

se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their

appeal from an immigration judge’s (“IJ”) decision denying their applications for

asylum and voluntary departure, and Sistanis’s applications for withholding of

* 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). removal and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

agency’s factual findings, applying the standards governing adverse credibility

determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-

40 (9th Cir. 2010). We review de novo questions of law. Mohammed v. Gonzales,

400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

Substantial evidence supports the agency’s adverse credibility determination

based on an inconsistency between Sistanis’s border interview and testimony

regarding his reasons for fleeing Haiti and an omission regarding threats he

received in Haiti. See Shrestha, 590 F.3d at 1048 (adverse credibility finding

reasonable under the totality of the circumstances); see also Singh v. Gonzales, 403

F.3d 1081, 1089 (9th Cir. 2005) (indicia of reliability for interview with

immigration officer); see also Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th

Cir. 2016) (“[A]n adverse credibility determination may be supported by omissions

that are not details, but new allegations that tell a much different—and more

compelling—story of persecution than [the] initial application[.]” (internal

quotation marks and citation omitted)). Sistanis’s explanations do not compel a

contrary conclusion. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021) (IJ not

compelled to accept explanations for discrepancies). Thus, in the absence of

credible testimony, petitioners’ asylum claim and Sistanis’s withholding of

2 20-72744 removal claim fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Substantial evidence also supports the agency’s denial of Sistanis’s CAT

claim because it was based on the same testimony found not credible, and the

record does not compel the conclusion that it is more likely than not he would be

tortured by or with the consent or acquiescence of the government if returned to

Haiti. See id. at 1157.

We do not address Sistanis’s contentions that, assuming his testimony was

credible, he established eligibility for asylum and withholding of removal because

the BIA did not deny relief on these grounds. See Santiago-Rodriguez v. Holder,

657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we

consider only the grounds relied upon by that agency.” (citation and internal

quotation marks omitted)).

Petitioners forfeited any challenge to the denial of voluntary departure. See

Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th Cir. 2013); see also

Posos-Sanchez v. Garland, 3 F.4th 1176, 1185 (9th Cir. 2021) (statutorily deficient

notice to appear does not trigger the voluntary departure stop-time provision);

Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019) (new claim based on

change of law may be raised in a motion to reconsider at the agency).

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED.

3 20-72744