Manuel Sanchez-Mendoza v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2022
• Docket: 15-73387
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MANUEL SANCHEZ-MENDOZA, No. 15-73387

Petitioner, Agency No. A200-245-305

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

Respondent.

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

Submitted April 7, 2022** Pasadena, California

Before: MURGUIA, Chief Judge, and GRABER and BEA, Circuit Judges.

Petitioner, Manuel Sanchez-Mendoza, petitions for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of his claim for withholding of removal.

“We determine our own jurisdiction de novo.” Ruiz-Morales v. Ashcroft, 361 F.3d

1219, 1221 (9th Cir. 2004) (citation omitted). “A petitioner’s failure to raise an issue

* 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). before the BIA generally constitutes a failure to exhaust, thus depriving this court of

jurisdiction to consider the issue.” Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir.

2013) (per curiam). For the following reasons, we dismiss the petition.

The BIA held that Sanchez-Mendoza made no assertion of clear error in the

immigration judge’s (“IJ”) adverse credibility finding and, therefore, the issue was

deemed waived. Sanchez-Mendoza argues, however, that the IJ did not make an

explicit adverse credibility finding, so he did not need to raise the issue before the

BIA. “[T]he law of this circuit does not permit implicit adverse credibility

determinations.” Shoafera v. INS, 228 F.3d 1070, 1074 n.3 (9th Cir. 2000). An IJ

must identify specific, cogent reasons supporting an adverse credibility

determination. Perez-Arceo v. Lynch, 821 F.3d 1178, 1186–87 (9th Cir. 2016).

Here, the IJ made an explicit adverse credibility finding. In a separate section

titled “Analysis and Findings,” the IJ included a subsection titled “Credibility.” In

the “Credibility” section, the IJ stated that, “[a]fter considering the totality of the

evidence, the Court is no[t] satisfied that [Sanchez-Mendoza] has provided credible

testimony.” The IJ pointed to Sanchez-Mendoza’s inconsistent testimony

concerning his departures from the United States and multiple reentries. The IJ

further noted the inconsistencies in Sanchez-Mendoza’s testimony concerning when

and how he was threatened in Mexico. Accordingly, the IJ made an adverse

credibility finding and provided specific and cogent reasons supporting the

2 determination. Id. at 1186–87. Because the IJ made an adverse credibility finding,

Sanchez-Mendoza was required to challenge the finding before the BIA in order to

exhaust his claim for withholding of removal. 8 U.S.C. § 1252(d)(1); Sola, 720 F.3d

at 1134. Sanchez-Mendoza failed to do so. Therefore, we lack jurisdiction to review

the IJ’s adverse credibility finding. Sola, 720 F.3d at 1135 (9th Cir. 2013)

(dismissing petition for lack of jurisdiction).

PETITION DISMISSED.