Milton Guncay-Luna v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2018
• Docket: 18-70339
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MILTON ANDRES GUNCAY-LUNA, No. 18-70339 AKA Antonio Jesus Gomez Lopez, Agency No. A208-569-487 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Milton Andres Guncay-Luna, a native and citizen of Ecuador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

* 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). We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion

whether the BIA clearly departs from its own standards. Mejia v. Sessions, 868

F.3d 1118, 1121 (9th Cir. 2017). We review for substantial evidence the agency’s

factual findings, applying the standards governing adverse credibility

determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,

1039-40 (9th Cir. 2010). We deny the petition for review.

The BIA did not abuse its discretion in affirming the IJ’s competency

determination under Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). See

Salgado v. Sessions, 889 F.3d 982, 987-88 (9th Cir. 2018) (explaining the

competency procedures set forth in Matter of M-A-M-).

Substantial evidence supports the agency’s adverse credibility determination

based on inconsistencies between Guncay-Luna’s testimony and declaration as to

the basis for his fear of returning to Ecuador. See Shrestha, 590 F.3d at 1048

(adverse credibility determination reasonable under “the totality of

circumstances”). In addition, substantial evidence supports the agency’s adverse

credibility determination based on Guncay-Luna’s admission he previously lied

under oath to both an asylum officer and an immigration judge. See Li v. Holder,

738 F.3d 1160, 1163 (9th Cir. 2013) (“The law of this circuit permits the use of the

maxim falsus in uno, falsus in omnibus in the immigration context.”). Thus, in the

absence of credible testimony, in this case, Guncay-Luna’s asylum and

2 18-70339 withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 156

(9th Cir. 2003).

Finally, Guncay-Luna’s CAT claim also fails because it is based on the same

testimony the agency found not credible, and the record does not otherwise compel

the conclusion that it is more likely than not he would be tortured if returned to

Ecuador. See id. at 1156-57.

PETITION FOR REVIEW DENIED.

3 18-70339