NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JAVIER OLVERA-GONZALEZ, No. 22-757
Petitioner, Agency No. A208-081-758
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted November 14, 2023** Pasadena, California
Before: PARKER,*** BYBEE, and DESAI, Circuit Judges.
Petitioner Javier Olvera-Gonzalez (“Petitioner” or “Olvera-Gonzalez”), a
native and citizen of Mexico, seeks review of a March 25, 2022 Board of
* 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 Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. Immigration Appeals (“BIA”) decision affirming the denial by an immigration
judge (“IJ”) of his application for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). Olvera-Gonzalez contends that,
as a gay man, he fears future persecution based on his membership in a particular
social group. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny
the petition.
Where, as here, the BIA expressly adopts the IJ’s decision and adds
reasoning of its own, we review the IJ’s and BIA’s decisions together. Husyev v.
Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). This Court reviews the BIA’s legal
conclusions de novo. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020).
We review denials of asylum, withholding of removal, and CAT relief under the
deferential substantial evidence standard. Wang v. Sessions, 861 F.3d 1003, 1007
(9th Cir. 2017). We also review “factual findings, including adverse credibility
determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789
(9th Cir. 2014). The substantial evidence standard is “extremely
deferential.” Wang v. INS, 352 F.3d 1250, 1257 (9th Cir. 2003) (quoting
Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003)); Garland v. Ming Dai,
141 S. Ct. 1669, 1677 (2021) (substantial evidence review is “highly deferential”)
(quoting Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)). “Under the substantial
evidence standard, administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the contrary.” Zehatye
v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (emphasis added) (internal
quotations omitted).
We assume the parties’ familiarity with the underlying facts in these
immigration proceedings. Considering the totality of the circumstances and all
relevant factors, we conclude that substantial evidence supports the agency’s
determination that Petitioner Olvera-Gonzalez did not testify credibly before the IJ.
See Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc); 8 U.S.C. §
1158(b)(1)(B)(iii) (setting forth relevant factors for consideration in a credibility
determination, including the “internal consistency of each such statement,” and the
“consistency of such statements with other evidence of record”). We also conclude
that the agency did not abuse its discretion in concluding that Petitioner’s
conviction for assault with a deadly weapon without a firearm but likely to produce
great bodily injury, in violation of section 245(a)(1) of the California Penal Code,
constituted a particularly serious crime, rendering him ineligible for withholding of
removal relief, and that Petitioner waived his arguments in favor of relief under the
Convention Against Torture.
First, we conclude that the IJ’s adverse credibility finding was supported by
substantial evidence and that the BIA properly affirmed the IJ’s denial of
Petitioner’s relief on this ground. After considering Olvera-Gonzalez’s requests
3 for relief, the IJ identified significant differences within Olvera-Gonzalez’s asylum
application, initial declaration, supplemental declaration, and testimony to find that
he was not credible. For example, the IJ highlighted that Petitioner’s accounts of
when and how frequently he was sexually abused by family members while he
resided in Mexico—as well as his accounts of which sibling(s) perpetrated such
abuse—differed markedly throughout the proceedings. The IJ also found that
Petitioner was “not credible due to his testimony about his conviction for assault
with a deadly weapon” because he “denied that he even assaulted his partner, much
less that he assaulted him with a deadly weapon.”
Petitioner provided explanations for the alleged inconsistencies, but the IJ
reasonably rejected his explanations. See Zhi v. Holder, 751 F.3d 1088, 1092-93
(9th Cir. 2014) (explaining that the IJ must consider a petitioner’s explanation for
any inconsistency that supports an adverse credibility determination). For
example, Petitioner asserted that he did not believe he was allowed to add further
incidents to his supplemental declaration. But the IJ determined that his
explanation was unreasonable given the numerous opportunities Petitioner had to
amend and supplement his statements. And although Petitioner alleged that he did
not commit the underlying elements of the crime for which he was convicted, the
IJ reasonably found his testimony not credible because Petitioner failed to provide
the requested police report. The IJ’s adverse credibility determination based on
4 these inconsistencies is supported by substantial evidence.
The IJ further based its adverse credibility determination on Olvera-
Gonzalez’s demeanor—a determination we must give special deference “because
IJs are in the best position to assess demeanor and other credibility cues that we
cannot readily access on review.” Shrestha v. Holder, 590 F.3d 1034, 1041 (9th
Cir. 2010); 8 U.S.C. § 1158(b)(1)(B)(iii) (an IJ may base an adverse credibility
determination on the “demeanor, candor, or responsiveness” of the applicant); see
also Ling Huang v. Holder, 744 F.3d 1149, 1153 (9th Cir.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JAVIER OLVERA-GONZALEZ, No. 22-757
Petitioner, Agency No. A208-081-758
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted November 14, 2023** Pasadena, California
Before: PARKER,*** BYBEE, and DESAI, Circuit Judges.
Petitioner Javier Olvera-Gonzalez (“Petitioner” or “Olvera-Gonzalez”), a
native and citizen of Mexico, seeks review of a March 25, 2022 Board of
* 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 Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. Immigration Appeals (“BIA”) decision affirming the denial by an immigration
judge (“IJ”) of his application for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). Olvera-Gonzalez contends that,
as a gay man, he fears future persecution based on his membership in a particular
social group. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny
the petition.
Where, as here, the BIA expressly adopts the IJ’s decision and adds
reasoning of its own, we review the IJ’s and BIA’s decisions together. Husyev v.
Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). This Court reviews the BIA’s legal
conclusions de novo. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020).
We review denials of asylum, withholding of removal, and CAT relief under the
deferential substantial evidence standard. Wang v. Sessions, 861 F.3d 1003, 1007
(9th Cir. 2017). We also review “factual findings, including adverse credibility
determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789
(9th Cir. 2014). The substantial evidence standard is “extremely
deferential.” Wang v. INS, 352 F.3d 1250, 1257 (9th Cir. 2003) (quoting
Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003)); Garland v. Ming Dai,
141 S. Ct. 1669, 1677 (2021) (substantial evidence review is “highly deferential”)
(quoting Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)). “Under the substantial
evidence standard, administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the contrary.” Zehatye
v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (emphasis added) (internal
quotations omitted).
We assume the parties’ familiarity with the underlying facts in these
immigration proceedings. Considering the totality of the circumstances and all
relevant factors, we conclude that substantial evidence supports the agency’s
determination that Petitioner Olvera-Gonzalez did not testify credibly before the IJ.
See Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc); 8 U.S.C. §
1158(b)(1)(B)(iii) (setting forth relevant factors for consideration in a credibility
determination, including the “internal consistency of each such statement,” and the
“consistency of such statements with other evidence of record”). We also conclude
that the agency did not abuse its discretion in concluding that Petitioner’s
conviction for assault with a deadly weapon without a firearm but likely to produce
great bodily injury, in violation of section 245(a)(1) of the California Penal Code,
constituted a particularly serious crime, rendering him ineligible for withholding of
removal relief, and that Petitioner waived his arguments in favor of relief under the
Convention Against Torture.
First, we conclude that the IJ’s adverse credibility finding was supported by
substantial evidence and that the BIA properly affirmed the IJ’s denial of
Petitioner’s relief on this ground. After considering Olvera-Gonzalez’s requests
3 for relief, the IJ identified significant differences within Olvera-Gonzalez’s asylum
application, initial declaration, supplemental declaration, and testimony to find that
he was not credible. For example, the IJ highlighted that Petitioner’s accounts of
when and how frequently he was sexually abused by family members while he
resided in Mexico—as well as his accounts of which sibling(s) perpetrated such
abuse—differed markedly throughout the proceedings. The IJ also found that
Petitioner was “not credible due to his testimony about his conviction for assault
with a deadly weapon” because he “denied that he even assaulted his partner, much
less that he assaulted him with a deadly weapon.”
Petitioner provided explanations for the alleged inconsistencies, but the IJ
reasonably rejected his explanations. See Zhi v. Holder, 751 F.3d 1088, 1092-93
(9th Cir. 2014) (explaining that the IJ must consider a petitioner’s explanation for
any inconsistency that supports an adverse credibility determination). For
example, Petitioner asserted that he did not believe he was allowed to add further
incidents to his supplemental declaration. But the IJ determined that his
explanation was unreasonable given the numerous opportunities Petitioner had to
amend and supplement his statements. And although Petitioner alleged that he did
not commit the underlying elements of the crime for which he was convicted, the
IJ reasonably found his testimony not credible because Petitioner failed to provide
the requested police report. The IJ’s adverse credibility determination based on
4 these inconsistencies is supported by substantial evidence.
The IJ further based its adverse credibility determination on Olvera-
Gonzalez’s demeanor—a determination we must give special deference “because
IJs are in the best position to assess demeanor and other credibility cues that we
cannot readily access on review.” Shrestha v. Holder, 590 F.3d 1034, 1041 (9th
Cir. 2010); 8 U.S.C. § 1158(b)(1)(B)(iii) (an IJ may base an adverse credibility
determination on the “demeanor, candor, or responsiveness” of the applicant); see
also Ling Huang v. Holder, 744 F.3d 1149, 1153 (9th Cir. 2014) (“The need for
deference is particularly strong in the context of demeanor assessments.”). The
record does not compel the conclusion that the IJ’s assessment of Petitioner’s
demeanor was erroneous.
The BIA, in affirming that IJ’s decision, pointed to inconsistencies within
Petitioner’s accounts of the sexual abuse he faced by family members, his domestic
violence conviction, and his failure to submit the requested police report to the IJ.
It concluded that the IJ “did not clearly err in finding that the respondent
embellished his claim on the day of the hearing, noting how the respondent’s
testimony was markedly different than the personal declaration.” This
determination was again supported by substantial evidence, given the significant
differences between Petitioner’s asylum application, initial declaration,
supplemental declaration, and testimony and the agency’s reasonable rejection of
5 Petitioner’s explanations.
Second, we conclude that the agency did not abuse its discretion in
concluding that Olvera-Gonzalez committed a particularly serious crime
(“PSC”)—having been convicted of assault with a deadly weapon, in violation of
California Penal Code § 245(a)(1)—and was therefore ineligible for withholding of
removal relief. Withholding of removal is unavailable to a non-citizen if they have
been convicted of a particularly serious crime. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8
C.F.R. § 1208.16(d)(2). A crime is categorically considered particularly serious if
it is an aggravated felony for which the non-citizen was sentenced to at least five
years’ imprisonment. 8 U.S.C. § 1231(b)(3)(B)(iv). However, for those offenders
who were not sentenced to more than five years’ imprisonment, an IJ can find
within its discretion that the offender has committed a PSC on a case-by-case
basis, “notwithstanding the length of sentence imposed.” Id.; see Anaya-Ortiz v.
Holder, 594 F.3d 673, 676 (9th Cir. 2010). Indeed, “[i]f the elements of [the]
offense are found to potentially bring it within the ambit of a particularly serious
crime, all reliable information that is relevant to the determination may be
considered.” Matter of G-G-S-, 26 I&N. Dec. 339, 343 (BIA 2014), vacated and
remanded on other grounds, 892 F.3d 985 (9th Cir. 2018).
We review the determination that a petitioner committed a “particularly
serious crime” for abuse of discretion. Konou v. Holder, 750 F.3d 1120, 1127 (9th
6 Cir. 2014). “[O]ur review is limited to ensuring that the agency relied on the
appropriate factors and proper evidence to reach this conclusion.” Bare v. Barr,
975 F.3d 952, 961 (9th Cir. 2020) (internal quotation marks and alterations
omitted). Olvera-Gonzalez asserts that the IJ erred in finding that “by its nature,
assault with a dangerous weapon raises the possibility that it constituted a
particularly serious crime” and that the IJ only found so “because he ordered the
Petitioner to file the police report related to this offense, and [Petitioner] failed to
do so for ‘good reason.’” However, as the Government notes, it was Petitioner’s
burden to demonstrate that his conviction did not constitute a PSC so as to
disqualify him from withholding of removal. See 8 U.S.C. § 1229a(b)(4)(A)(i).
Thus, the IJ did not abuse its discretion in concluding that Petitioner’s conviction
for assault with a deadly weapon in violation of section 245(a)(1) of the California
Penal Code constituted a PSC, nor did the BIA apply the incorrect legal standard in
affirming this determination.
Third, we conclude that Petitioner abandoned his challenge to the IJ’s denial
of his CAT application because he provides no meaningful argument in his brief
for why he should be eligible for CAT protection. Specifically, Petitioner failed to
provide “citations to the authorities, statutes, and parts of the record relied on.”
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (quoting Fed. R. App.
P. 28(a)(6)). And even if the claim is not abandoned, Petitioner’s only allegation
7 of error—that the IJ exclusively considered the Mexican human rights report—is
not supported by the record.
PETITION DENIED