NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALFREDO PABLO PEREZ, No. 22-528
Petitioner, Agency No. A209-812-576
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 08, 2023** San Francisco, California
Before: FRIEDLAND, NELSON, Circuit Judges, and CARDONE,*** District Judge.
Petitioner Alfredo Pablo Perez seeks review of an order of the Board of
Immigration Appeals (BIA) denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We have
* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. jurisdiction under 8 U.S.C. § 1252, Wang v. Sessions, 861 F.3d 1003, 1007 (9th
Cir. 2017), and we deny the petition.
1. The BIA affirmed the immigration judge’s (IJ) denial of Pablo
Perez’s application for asylum based on the IJ’s adverse credibility finding
resulting from Pablo Perez’s inconsistent statements. When the BIA agrees with
the conclusions of the IJ, we review both decisions. See Garcia-Martinez v.
Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018).
The IJ may base an adverse credibility determination on a variety of
factors, including but not limited to consistency between written and oral
statements (whenever made and whether or not under oath), internal consistency
of those statements, and the consistency of those statements with other record
evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). In reviewing an adverse credibility
finding, “we must look to the ‘totality of the circumstances[ ] and all relevant
factors.’” Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc)
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Taking the totality of the circumstances
into account, we review the agency’s credibility determination for substantial
evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Under this
standard, an agency’s findings of fact are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Ruiz-Colmenares
v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (quoting Zehatye v. Gonzales, 453
F.3d 1182, 1185 (9th Cir. 2006)).
The BIA did not err in affirming the IJ’s adverse credibility determination
2 22-528 based on Pablo Perez’s omission of any reference to his political views when
asked during his credible fear interview about what motivated the harm he
suffered. Pablo Perez was asked three times during his credible fear interview
why he was harmed and each time he said he had no idea why the gang targeted
him. He also said during the interview that he had never been targeted for his
political opinions.1 Later, however, he wrote in his asylum application and in a
declaration, and testified before the IJ, that the gang targeted him because of his
involvement in a political campaign for a new mayor who opposed gangs. The
IJ did not err in finding these inconsistencies material because of their relevance
to showing the required nexus for Pablo Perez’s asylum and withholding of
removal claims.2 See Shrestha, 590 F.3d at 1046–47 (9th Cir. 2010) (stating that
when inconsistencies go “to the heart of” an asylum claim, they are “of great
weight” in evaluating credibility).
Pablo Perez counters that reliance on inconsistencies between a credible
fear interview and other testimony is impermissible. We have never so held. In
Singh v. Gonzales, 403 F.3d 1081, 1087 (9th Cir. 2005), we did note that
“[c]ertain features of an asylum interview make it a potentially unreliable point
of comparison to a petitioner’s testimony for purposes of a credibility
1 Pablo Perez does not argue that he claimed political persecution during his credible fear interview and that this was not transcribed. 2 Pablo Perez also asserted fear of persecution on account of membership in a particular social group before the IJ, but he has not raised that argument on appeal.
3 22-528 determination.” But Singh did not set forth a categorical prohibition. The INA
allows the IJ to consider “the consistency between the applicant’s . . . written and
oral statements (whenever made and whether or not under oath . . . .” 8 U.S.C. §
1158(b)(1)(B)(iii) (emphasis added); see also Ren v. Holder, 648 F.3d 1079, 1084
(9th Cir. 2011) (“[T]he IJ may base an adverse credibility determination on any
relevant factor that, considered in light of the totality of the circumstances, can
reasonably be said to have a bearing on a petitioner’s veracity.” (internal
quotations and citation omitted)).
Further, these were not the only inconsistencies found. The IJ and BIA
also pointed to inconsistencies between Pablo Perez’s testimony stating that he
had never been harmed or had any problems with the gangs prior to his political
involvement, and his written declaration stating that he did have trouble with a
gang before his political involvement. Taken together, these inconsistencies
constitute substantial evidence.
Pablo Perez also contends that the IJ failed to consider corroborative
evidence in support of his claim. But the IJ and BIA did consider this evidence
and concluded it did not resolve the specific concerns about the gang’s motive in
targeting him. Given the record inconsistencies identified, the IJ and BIA’s
determination that other evidence did not rehabilitate Pablo Perez’s testimony is
supported by substantial evidence. See Mairena v. Barr, 917 F.3d 1119, 1126
(9th Cir. 2019) (per curiam) (“[O]ur task is to determine whether there is
substantial evidence to support the BIA’s findings, not to substitute an analysis
4 22-528 of which side in the factual dispute we find more persuasive.” (internal quotations
and citation omitted)).
The IJ afforded Pablo Perez an opportunity to explain these inconsistencies
before making the adverse credibility finding. The IJ considered Pablo Perez’s
explanation and found it unreasonable. See Zhi v. Holder,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALFREDO PABLO PEREZ, No. 22-528
Petitioner, Agency No. A209-812-576
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 08, 2023** San Francisco, California
Before: FRIEDLAND, NELSON, Circuit Judges, and CARDONE,*** District Judge.
Petitioner Alfredo Pablo Perez seeks review of an order of the Board of
Immigration Appeals (BIA) denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We have
* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. jurisdiction under 8 U.S.C. § 1252, Wang v. Sessions, 861 F.3d 1003, 1007 (9th
Cir. 2017), and we deny the petition.
1. The BIA affirmed the immigration judge’s (IJ) denial of Pablo
Perez’s application for asylum based on the IJ’s adverse credibility finding
resulting from Pablo Perez’s inconsistent statements. When the BIA agrees with
the conclusions of the IJ, we review both decisions. See Garcia-Martinez v.
Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018).
The IJ may base an adverse credibility determination on a variety of
factors, including but not limited to consistency between written and oral
statements (whenever made and whether or not under oath), internal consistency
of those statements, and the consistency of those statements with other record
evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). In reviewing an adverse credibility
finding, “we must look to the ‘totality of the circumstances[ ] and all relevant
factors.’” Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc)
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Taking the totality of the circumstances
into account, we review the agency’s credibility determination for substantial
evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Under this
standard, an agency’s findings of fact are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Ruiz-Colmenares
v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (quoting Zehatye v. Gonzales, 453
F.3d 1182, 1185 (9th Cir. 2006)).
The BIA did not err in affirming the IJ’s adverse credibility determination
2 22-528 based on Pablo Perez’s omission of any reference to his political views when
asked during his credible fear interview about what motivated the harm he
suffered. Pablo Perez was asked three times during his credible fear interview
why he was harmed and each time he said he had no idea why the gang targeted
him. He also said during the interview that he had never been targeted for his
political opinions.1 Later, however, he wrote in his asylum application and in a
declaration, and testified before the IJ, that the gang targeted him because of his
involvement in a political campaign for a new mayor who opposed gangs. The
IJ did not err in finding these inconsistencies material because of their relevance
to showing the required nexus for Pablo Perez’s asylum and withholding of
removal claims.2 See Shrestha, 590 F.3d at 1046–47 (9th Cir. 2010) (stating that
when inconsistencies go “to the heart of” an asylum claim, they are “of great
weight” in evaluating credibility).
Pablo Perez counters that reliance on inconsistencies between a credible
fear interview and other testimony is impermissible. We have never so held. In
Singh v. Gonzales, 403 F.3d 1081, 1087 (9th Cir. 2005), we did note that
“[c]ertain features of an asylum interview make it a potentially unreliable point
of comparison to a petitioner’s testimony for purposes of a credibility
1 Pablo Perez does not argue that he claimed political persecution during his credible fear interview and that this was not transcribed. 2 Pablo Perez also asserted fear of persecution on account of membership in a particular social group before the IJ, but he has not raised that argument on appeal.
3 22-528 determination.” But Singh did not set forth a categorical prohibition. The INA
allows the IJ to consider “the consistency between the applicant’s . . . written and
oral statements (whenever made and whether or not under oath . . . .” 8 U.S.C. §
1158(b)(1)(B)(iii) (emphasis added); see also Ren v. Holder, 648 F.3d 1079, 1084
(9th Cir. 2011) (“[T]he IJ may base an adverse credibility determination on any
relevant factor that, considered in light of the totality of the circumstances, can
reasonably be said to have a bearing on a petitioner’s veracity.” (internal
quotations and citation omitted)).
Further, these were not the only inconsistencies found. The IJ and BIA
also pointed to inconsistencies between Pablo Perez’s testimony stating that he
had never been harmed or had any problems with the gangs prior to his political
involvement, and his written declaration stating that he did have trouble with a
gang before his political involvement. Taken together, these inconsistencies
constitute substantial evidence.
Pablo Perez also contends that the IJ failed to consider corroborative
evidence in support of his claim. But the IJ and BIA did consider this evidence
and concluded it did not resolve the specific concerns about the gang’s motive in
targeting him. Given the record inconsistencies identified, the IJ and BIA’s
determination that other evidence did not rehabilitate Pablo Perez’s testimony is
supported by substantial evidence. See Mairena v. Barr, 917 F.3d 1119, 1126
(9th Cir. 2019) (per curiam) (“[O]ur task is to determine whether there is
substantial evidence to support the BIA’s findings, not to substitute an analysis
4 22-528 of which side in the factual dispute we find more persuasive.” (internal quotations
and citation omitted)).
The IJ afforded Pablo Perez an opportunity to explain these inconsistencies
before making the adverse credibility finding. The IJ considered Pablo Perez’s
explanation and found it unreasonable. See Zhi v. Holder, 751 F.3d 1088, 1092–
93 (9th Cir. 2014) (requiring an IJ to consider and address plausible and
reasonable explanations for any inconsistencies). The IJ determined that the
record did not indicate that Pablo Perez was scared or nervous during his credible
fear interview, that he spoke Spanish despite stating that he had a hard time
understanding the interpreter, and that the record reflected no difficulty
comprehending or responding during his interview. The IJ also reiterated that
Pablo Perez was given multiple opportunities to explain why he believed the gang
targeted him.
Considering the totality of the circumstances and all relevant factors, the IJ
and BIA’s adverse credibility determination is supported by substantial evidence
and the record does not compel an alternate conclusion. See Mukulumbutu v.
Barr, 977 F.3d 924, 927 (9th Cir. 2020).
2. Because Pablo Perez’s claims for asylum and withholding of
removal both depend on his testimony, the IJ and BIA’s adverse credibility
determination causes both claims to fail. See Farah v. Ashcroft, 348 F.3d 1153,
1156 (9th Cir. 2003).
3. Pablo Perez’s CAT claim was also supported, in substantial part, by
5 22-528 his own testimony. Even so, an adverse credibility determination does not excuse
the IJ and BIA from their obligation to consider “all evidence relevant to the
possibility of future torture.” Id. at 1156–57. But Petitioner “points to no other
evidence that he could claim the BIA should have considered in making its [CAT]
determination.” See id. at 1157. Indeed, Petitioner raises no arguments on appeal
other than his challenge to the IJ and BIA’s adverse credibility determination. In
the absence of credible testimony, substantial evidence also supports the denial
of Petitioner’s CAT claim. See Mukulumbutu, 977 F.3d at 927–28.
PETITION DENIED.
6 22-528