Maria Rodriguez-Pena v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2020
• Docket: 18-70208
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED FEB 11 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA YESSENIA RODRIGUEZ-PENA No. 18-70208 and B. R.-A., Agency Nos. A202-136-112 & Petitioners, A202-136-111

v. MEMORANDUM* WILLIAM P. BARR., Attorney General,

Respondent.

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

Submitted February 5, 2020** Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Petitioners Maria Yesenia Rodriguez-Pena and B.R.-A., her minor child,

natives and citizens of El Salvador, petition for review of the Board of Immigration

Appeals (ABIA@) order dismissing their appeal. The BIA affirmed the

Immigration Judge’s (“IJ”) adverse credibility determination and denial of

Petitioners’ applications for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). We have jurisdiction to review under 8

U.S.C. § 1252, and we deny the petition.

Substantial evidence supports the IJ’s adverse credibility determination.

See Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). Petitioners argue

that the agency erred because the inconsistencies cited by the IJ in making his

adverse credibility determination are minor and only relate to “dates and temporal

issues.” See Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011). The record

does not compel such a finding. Rodriguez-Pena’s testimony about the events

leading up to Petitioners’ departure increased the frequency and length of time

Rodriguez-Pena was subjected to past harm and was inconsistent with her credible

fear interview. The IJ reasonably relied on these inconsistencies in making his

adverse credibility determination. See Shrestha, 590 F.3d at 1046.

The IJ also examined Rodriguez-Pena’s corroborating evidence and

considered her explanations for the inconsistencies and reasonably found both to

2 be insufficient. Rodriguez-Pena’s corroborating evidence does not address the

frequency or length of time Rodriguez-Pena was subjected to harm, and does not

compel a finding that the IJ’s rejection was in error. Further, the record

surrounding Rodriguez-Pena’s explanations for the inconsistencies does not

compel a finding that the IJ’s decision rejecting them was erroneous. See

Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011). In rejecting her

explanations, the IJ noted that Rodriguez-Pena’s credible fear interview occurred

shortly after the alleged abuse occurred and Rodriguez-Pena gave a specific date

(July 30, 2014) that the abuse ended. This date was inconsistent with her later

testimony.

In short, the record does not compel a conclusion contrary to that of the IJ

and BIA regarding Rodriguez-Pena’s lack of credibility.1 Garcia v. Holder, 749

F.3d 785, 789 (9th Cir. 2014).

Given this finding, there is no credible evidence to support any of

Petitioners’ claims for relief. Thus, substantial evidence also supports the BIA’s

decision to affirm the IJ’s denial of CAT protection, which was based on the same

testimony found to be not credible. Petitioners have not shown that any

1 Because of this finding, Rodriguez-Pena’s argument regarding the timeliness of her asylum application based on ineffective assistance of counsel also fails for lack of prejudice. See Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009). 3 reasonable adjudicator would be compelled to find, based on the record, that

Petitioners will more likely than not be subjected to torture by or with the

acquiescence of a government official if removed. See Aden v. Holder, 589 F.3d

1040, 1047 (9th Cir. 2009) (citing 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1)).

PETITION DENIED.