NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ISIDRO MEMBRENO NUNEZ; ERIKA No. 22-2026 LISBETH MEMBRENO Agency Nos. ESCOBAR; DAVID ALEXANDER A098-298-891 REYES MEMBRENO; ISIDRO JOSUE A206-627-749 MEMBRENO ESCOBAR, A206-627-750 A206-627-747 Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted June 5, 2024** Pasadena, California
Before: COLLINS and LEE, Circuit Judges, and RODRIGUEZ, District Judge.***
* 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 Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation. Petitioners, Isidro Membreno-Nunez; his adult children, Isidro Josue
Membreno-Escobar and Erika Lisbeth Membreno-Escobar; and Erika’s minor son,
D.A.R.M., petition for review of the Board of Immigration Appeals’ (“BIA”)
decision affirming the Immigration Judge’s (“IJ”) denial of their applications for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Petitioners are natives and citizens of El Salvador. As the parties are
familiar with the facts, we do not recount them here. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition.
This court’s “review is limited to the BIA’s decision except where the IJ’s
opinion is expressly adopted.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831
(9th Cir. 2022) (citing Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)).
Where the BIA appears to rely on the IJ’s reasoning, we look to the IJ’s decision
“as a guide to what lay behind the BIA’s conclusion.” Bingxu Jin v. Holder, 748
F.3d 959, 964 (9th Cir. 2014) (citation and internal quotation marks omitted).
This court reviews constitutional and other questions of law de novo and
reviews the agency’s factual findings for substantial evidence. Perez-Portillo v.
Garland, 56 F.4th 788, 792 (9th Cir. 2022). Under the latter standard, the agency’s
action should be upheld “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Dai v. Garland, 9 F.4th 1142, 1144 (9th Cir. 2021)
2 22-2026 (citation omitted). We review an IJ’s decision to exclude evidence as untimely
filed for abuse of discretion. Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013).
1. Exclusion of Late-Filed Evidence. The IJ did not abuse her discretion or
violate Petitioners’ due process rights by excluding late-filed evidence for failure
to show good cause. The IJ has broad discretion to set and enforce filing
deadlines. See 8 C.F.R. § 1003.31(h) (2022) (“If an application or document is not
filed within the time set by the immigration judge, the opportunity to file that
application or document shall be deemed waived.”). Petitioners conceded that
evidence was not timely filed but fail to present a compelling reason for the delay.
Moreover, Petitioners fail to describe the substance of the rejected evidence, let
alone explain how its exclusion was prejudicial. See Padilla-Martinez v. Holder,
770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner
must demonstrate both a violation of rights and prejudice.”).
2. Asylum and withholding of removal. To be eligible for asylum, a
petitioner bears the burden of demonstrating a likelihood of “persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “To
be eligible for withholding of removal, the petitioner must discharge this burden by
a ‘clear probability.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021)
(citation omitted); see 8 U.S.C. § 1231(b)(3).
3 22-2026 Eligibility for asylum based on a well-founded fear of future persecution
requires an applicant to satisfy both a subjective and an objective test. Singh v.
INS, 134 F.3d 962, 966 (9th Cir. 1998). Applicants satisfy the subjective test by
credibly testifying that they genuinely fear persecution by their government, or
private actors their government is unable or unwilling to control, on account of a
statutorily-protected ground. Id. The objective component is satisfied where
“credible, direct, and specific evidence in the record” supports a reasonable fear of
persecution. Id. (citation omitted).
Taking the totality of the circumstances into account, the agency’s adverse
credibility finding as to Petitioners’ claims for asylum and withholding is
supported by substantial evidence.1 8 U.S.C. § 1158(b)(1)(B)(iii) (explaining that,
in making a credibility determination, a trier of fact may consider, inter alia,
internal inconsistencies in a witness’s written or oral statements, inconsistencies
with other record evidence, and the plausibility of the witness’s account, without
regard to whether inconsistencies “go[] to the heart of the applicant’s claim”);
Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc).
The numerous and confusing inconsistencies in Membreno-Nunez’s
testimony concerning the timeline of the threatening phone calls he received justify
1 Membreno-Nunez was ineligible for asylum because he was subject to a prior removal order that had been reinstated. His withholding-only proceedings were joined with his family members’ removal proceedings.
4 22-2026 the adverse credibility finding, and nothing in the record compels a finding to the
contrary. Membreno-Nunez first testified that he could not recall when he received
the first threatening phone call. When asked why he was unable to remember such
an important date, Membreno-Nunez did not provide an explanation but instead
began identifying—and repeatedly changing—months and years in which the first
phone call might have occurred. Compare Shrestha v. Holder, 590 F.3d 1034,
1043 (9th Cir. 2010) (noting that, while adverse credibility findings may not be
based on an “utterly trivial” discrepancy, “even minor inconsistencies” may impact
credibility), with Ai Jun Zhi v. Holder, 751 F.3d 1088, 1092 (9th Cir. 2014)
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ISIDRO MEMBRENO NUNEZ; ERIKA No. 22-2026 LISBETH MEMBRENO Agency Nos. ESCOBAR; DAVID ALEXANDER A098-298-891 REYES MEMBRENO; ISIDRO JOSUE A206-627-749 MEMBRENO ESCOBAR, A206-627-750 A206-627-747 Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted June 5, 2024** Pasadena, California
Before: COLLINS and LEE, Circuit Judges, and RODRIGUEZ, District Judge.***
* 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 Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation. Petitioners, Isidro Membreno-Nunez; his adult children, Isidro Josue
Membreno-Escobar and Erika Lisbeth Membreno-Escobar; and Erika’s minor son,
D.A.R.M., petition for review of the Board of Immigration Appeals’ (“BIA”)
decision affirming the Immigration Judge’s (“IJ”) denial of their applications for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Petitioners are natives and citizens of El Salvador. As the parties are
familiar with the facts, we do not recount them here. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition.
This court’s “review is limited to the BIA’s decision except where the IJ’s
opinion is expressly adopted.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831
(9th Cir. 2022) (citing Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)).
Where the BIA appears to rely on the IJ’s reasoning, we look to the IJ’s decision
“as a guide to what lay behind the BIA’s conclusion.” Bingxu Jin v. Holder, 748
F.3d 959, 964 (9th Cir. 2014) (citation and internal quotation marks omitted).
This court reviews constitutional and other questions of law de novo and
reviews the agency’s factual findings for substantial evidence. Perez-Portillo v.
Garland, 56 F.4th 788, 792 (9th Cir. 2022). Under the latter standard, the agency’s
action should be upheld “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Dai v. Garland, 9 F.4th 1142, 1144 (9th Cir. 2021)
2 22-2026 (citation omitted). We review an IJ’s decision to exclude evidence as untimely
filed for abuse of discretion. Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013).
1. Exclusion of Late-Filed Evidence. The IJ did not abuse her discretion or
violate Petitioners’ due process rights by excluding late-filed evidence for failure
to show good cause. The IJ has broad discretion to set and enforce filing
deadlines. See 8 C.F.R. § 1003.31(h) (2022) (“If an application or document is not
filed within the time set by the immigration judge, the opportunity to file that
application or document shall be deemed waived.”). Petitioners conceded that
evidence was not timely filed but fail to present a compelling reason for the delay.
Moreover, Petitioners fail to describe the substance of the rejected evidence, let
alone explain how its exclusion was prejudicial. See Padilla-Martinez v. Holder,
770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner
must demonstrate both a violation of rights and prejudice.”).
2. Asylum and withholding of removal. To be eligible for asylum, a
petitioner bears the burden of demonstrating a likelihood of “persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “To
be eligible for withholding of removal, the petitioner must discharge this burden by
a ‘clear probability.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021)
(citation omitted); see 8 U.S.C. § 1231(b)(3).
3 22-2026 Eligibility for asylum based on a well-founded fear of future persecution
requires an applicant to satisfy both a subjective and an objective test. Singh v.
INS, 134 F.3d 962, 966 (9th Cir. 1998). Applicants satisfy the subjective test by
credibly testifying that they genuinely fear persecution by their government, or
private actors their government is unable or unwilling to control, on account of a
statutorily-protected ground. Id. The objective component is satisfied where
“credible, direct, and specific evidence in the record” supports a reasonable fear of
persecution. Id. (citation omitted).
Taking the totality of the circumstances into account, the agency’s adverse
credibility finding as to Petitioners’ claims for asylum and withholding is
supported by substantial evidence.1 8 U.S.C. § 1158(b)(1)(B)(iii) (explaining that,
in making a credibility determination, a trier of fact may consider, inter alia,
internal inconsistencies in a witness’s written or oral statements, inconsistencies
with other record evidence, and the plausibility of the witness’s account, without
regard to whether inconsistencies “go[] to the heart of the applicant’s claim”);
Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc).
The numerous and confusing inconsistencies in Membreno-Nunez’s
testimony concerning the timeline of the threatening phone calls he received justify
1 Membreno-Nunez was ineligible for asylum because he was subject to a prior removal order that had been reinstated. His withholding-only proceedings were joined with his family members’ removal proceedings.
4 22-2026 the adverse credibility finding, and nothing in the record compels a finding to the
contrary. Membreno-Nunez first testified that he could not recall when he received
the first threatening phone call. When asked why he was unable to remember such
an important date, Membreno-Nunez did not provide an explanation but instead
began identifying—and repeatedly changing—months and years in which the first
phone call might have occurred. Compare Shrestha v. Holder, 590 F.3d 1034,
1043 (9th Cir. 2010) (noting that, while adverse credibility findings may not be
based on an “utterly trivial” discrepancy, “even minor inconsistencies” may impact
credibility), with Ai Jun Zhi v. Holder, 751 F.3d 1088, 1092 (9th Cir. 2014)
(overturning an adverse credibility finding principally based on one date-based
inconsistency where the documentary evidence confirmed that it was a
typographical error).
Neither the IJ nor the BIA suggested that Membreno-Nunez’s credibility
hinged on his ability to provide the exact dates of the phone calls. Rather, the IJ
found that Membreno-Nunez could not provide a reasonable explanation for his
inability to recall the dates. The IJ also found it implausible that Membreno-Nunez
would “rush[]” to pay extortion demands when he had no idea who was calling
him or where they were calling from and had not had any in-person interactions
with gang members. The IJ did not categorically state that a witness could never
credibly testify about a threatening phone call. Here again, the evidence supports
5 22-2026 the view that Membreno-Nunez failed to plausibly support his belief that the
anonymous callers would execute their threat. “There is no presumption of
credibility.” 8 U.S.C. § 1158(b)(1)(B)(iii). Here, the IJ adequately identified
problems with Membreno-Nunez’s testimony, and we are not compelled to
conclude that he was credible.
Because Membreno-Nunez’s testimony was the critical evidence offered in
support of Petitioners’ applications for asylum and withholding of removal, the
agency’s adverse credibility finding is dispositive of their claims for such relief,
and we need not reach the remaining issues concerning such relief. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“[C]ourts . . . are not required
to make findings on issues the decision of which is unnecessary to the results they
reach.”).
3. CAT. “To establish entitlement to protection under CAT, an applicant
must show ‘it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.’” Plancarte Sauceda, 23 F.4th at 834 (quoting 8
C.F.R. § 1208.16(c)(2)). “The torture must be ‘inflicted by, or at the instigation of,
or with the consent or acquiescence of, a public official acting in an official
capacity or other person acting in an official capacity.’” Id. (quoting 8 C.F.R.
§ 1208.18(a)(1)).
6 22-2026 Substantial evidence supports the denial of CAT relief. Because Petitioners’
CAT claims dispositively rely on the same testimony proffered in support of their
claims for asylum and withholding, the IJ’s adverse credibility finding is
dispositive of their claims for CAT protection. See Yali Wang v. Sessions, 861
F.3d 1003, 1009 (9th Cir. 2017). Neither Petitioners’ brief before the BIA nor
their brief before this court challenged the likelihood that a public official would
acquiesce to the torture they feared from gang members. Accordingly, they have
failed to exhaust and waived any challenge to the IJ’s denial of CAT protection on
that basis. See 8 U.S.C. § 1252(d)(1); Chadd v. United States, 794 F.3d 1104,
1110, n.4 (9th Cir. 2015).
PETITION DENIED.
7 22-2026