Marcos Cardenas Lopez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 13, 2021
• Docket: 20-72928
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 13 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCOS CARDENAS LOPEZ, No. 20-72928

Petitioner, Agency No. A206-681-356

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

Respondent.

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

Argued and Submitted August 31, 2021 San Francisco, California

Before: RAWLINSON and BYBEE, Circuit Judges, and CARDONE,** District Judge.

Petitioner Marcos Cardenas Lopez, a native and citizen of Mexico, petitions

for review of the Board of Immigration Appeals’s (BIA) decision affirming the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. Immigration Judge’s (IJ) denial of his application for withholding of removal and

protection under the Convention Against Torture (CAT). We deny the petition.

We review “denials of asylum, withholding of removal, and CAT relief for

substantial evidence and will uphold a denial supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Ling Huang v.

Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (citations and quotations omitted).

“Where, as here, the BIA cites Burbano and also provides its own review of

the evidence and law, we review both the IJ’s and the BIA’s decisions.” Aguilar

Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020) (quoting Ali v. Holder, 637 F.3d

1025, 1028 (9th Cir. 2011)).

1. This case primarily turns on whether Cardenas Lopez’s testimony

before the IJ was credible. Cardenas Lopez is Triqui, an indigenous people native

to Oaxaca, and he testified he fears returning to Mexico because he anticipates

persecution at the hands of the Movimiento de Unificación y Lucha Triqui

(MULT), a Triqui paramilitary organization that has killed or harmed several

members of his family in Mexico due to his family’s opposition to MULT. The

BIA affirmed the IJ’s determination that this testimony was not credible because it

was inconsistent with Cardenas Lopez’s Form I-867A. Cardenas Lopez attempted

to enter the United States in June 2014, but was apprehended by Customs and

2 Border Protection (CBP). In his Form I-867A—which is a record of a CBP

officer’s interview with Cardenas Lopez that Cardenas Lopez initialed on each

page and signed—Cardenas Lopez states that his reason for coming to the US is

that he “wanted to come work to [sic] the US” and “to seek employment.”

We hold that the IJ’s credibility determination was supported by substantial

evidence. Cardenas Lopez was confronted with the inconsistency on cross-

examination and claimed that the officer stated “they all say that” and recorded

incorrect information. The IJ acknowledged this explanation, but rejected it. “If

the IJ reasonably rejects the alien’s explanation, . . . the IJ may properly rely on the

inconsistency as support for an adverse credibility determination.” Rizk v. Holder,

629 F.3d 1083, 1088 (9th Cir. 2011). The IJ’s rejection of the explanation was

reasonable because the Form I-867A contained “sufficient indicia of

reliability”—the interview was conducted under oath, the notes included the

questions asked, and they were transcribed by an interpreter or an officer that

speaks Spanish. See Mukulumbutu v. Barr, 977 F.3d 924, 926 (9th Cir. 2020).

2. In addition, Cardenas Lopez’s ability to reasonably relocate forecloses

his withholding of removal claim. An applicant cannot establish eligibility for

withholding of removal if the applicant “could avoid a future threat to his or her

life or freedom by relocating to another part of the proposed country of removal

3 and, under all the circumstances, it would be reasonable to expect the applicant to

do so.” 8 C.F.R. § 1208.16(b)(2). The BIA found that even if Cardenas Lopez’s

lack of credibility is disregarded, his withholding of removal claim would still be

denied because the IJ found that he could reasonably relocate to another part of

Mexico. Cardenas Lopez has lived in at least two different Mexican states, where

he did not experience threats or harm from MULT for several years. See Gomes v.

Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005). Furthermore, there is substantial

record evidence to support the IJ’s inferences that Cardenas Lopez’s siblings live

in other Mexican states without being targeted by MULT and that MULT’s

influence is limited to only certain regions in Mexico. Based on this evidence, the

BIA did not err in affirming the denial of withholding of removal.

3. An applicant is eligible for protection under CAT if he can prove that

it is more likely than not that he would be tortured if removed to his country of

origin. See Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010). The BIA

agreed with the IJ that Cardenas Lopez failed to meet his burden under CAT

because the totality of the record did not establish that he is more likely than not to

be tortured upon his return to Mexico. Absent Cardenas Lopez’s testimony, the

record only establishes a generalized risk of harm to Triquis and members of the

Cardenas family. But this evidence does not compel the conclusion that Cardenas

4 Lopez would more likely than not be tortured. See Duran-Rodriguez v. Barr, 918

F.3d 1025, 1028 (9th Cir. 2019). Furthermore, the evidence demonstrates that

Cardenas Lopez could reduce his risk of torture by relocating to another part of

Mexico and that it would be reasonable for him to do so. Tamang, 598 F.3d at

1095. Thus, the BIA’s conclusion was supported by substantial evidence, and it

did not err in affirming the denial of CAT relief.

4. Finally, Cardenas Lopez argues that the BIA erred in denying his

motion to remand for the IJ to consider two reports that he submitted. We may not

review this evidence because the BIA declined to consider it and the BIA did not

abuse its discretion in doing so. See Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir.

1996); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).

PETITION DENIED.