Rios Naranjo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2023
• Docket: 21-147
• Status: Unpublished

Opinion

Case: 21-147, 02/21/2023, DktEntry: 60.1, Page 1 of 5

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Martin Rios Naranjo, No. 21-147

Petitioner, Agency No. A075-112-275

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted February 16, 2023** San Francisco, California

Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.

Martin Rios Naranjo, a native and citizen of Mexico, petitions for review

of a decision of the Board of Immigration Appeals dismissing his appeal from

an immigration judge’s denial of his application for protection under the

Convention Against Torture (CAT). Because the Board adopted the

immigration judge’s decision by citing Matter of Burbano, 20 I. & N. Dec. 872

* 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). Case: 21-147, 02/21/2023, DktEntry: 60.1, Page 2 of 5

(B.I.A. 1994), we review both decisions. Aguilar Fermin v. Barr, 958 F.3d 887,

891 (9th Cir. 2020). We have jurisdiction under 8 U.S.C. § 1252, and we deny

the petition.

1. We will uphold an adverse credibility determination so long as the

“totality of the circumstances” provides substantial evidence for it. Alam v.

Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc); see also Kumar v.

Garland, 18 F.4th 1148, 1156 (9th Cir. 2021). Under the substantial-evidence

standard, we must accept the agency’s factual findings “unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Garland v. Ming

Dai, 141 S. Ct. 1669, 1677 (2021) (quoting 8 U.S.C. § 1252(b)(4)(B)).

The immigration judge identified two significant inconsistencies in Rios’s

testimony. First, Rios testified inconsistently about whether police or armed

civilians attacked him when he was kidnapped in January 2017. His written

declaration recounted, “I struggled with the police and then 4 armed civilians

got into the truck and began to beat me with their rifles until I was

unconscious.” But he later testified that “[t]he police” hit him. Rios argues that

he was using the word “civilian” to refer to anyone not in the military, a usage

that would not exclude police officers. The immigration judge was not required

to accept that explanation, and it makes little sense given that, within the same

sentence, Rios distinguished “armed civilians” from “the police.” This

inconsistency concerns a key element of Rios’s claim for CAT protection—

whether public officials were complicit in the harm he suffered. See Shrestha v.

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Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010) (“Although inconsistencies no

longer need to go to the heart of the petitioner’s claim, when an inconsistency is

at the heart of the claim it doubtless is of great weight.”).

Second, Rios testified inconsistently about who sent him threatening text

messages beginning in 2020. At the beginning of his testimony, Rios said that

he received messages “asking me to take my life away in the presence of my

children” and that “I don’t know how they were able to detect me. I don’t

know.” Later, Rios agreed that the sender was “[o]f course” his cousin. That

inconsistency also concerned a key element of Rios’s claim.

The immigration judge identified other inconsistencies in Rios’s

testimony and noted that Rios had a criminal record. Assuming without

deciding that those grounds do not support the adverse credibility finding, we

nevertheless conclude that the totality of the circumstances provided substantial

evidence for the finding. Similarly, although the immigration judge erred in

relying on Rios’s failure to corroborate some of his claims without giving him

notice of the need to provide corroborating evidence, the “non-corroboration

grounds” provide substantial evidence for the adverse credibility determination.

Bhattarai v. Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016).

In the absence of credible testimony, Rios did not establish that he is

more likely than not to be tortured if removed to Mexico.

2. We reject Rios’s challenge to the Board’s failure to address his motion

to file a supplemental brief. The supplemental brief argued that Rios retained a

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right to apply for asylum even though his counsel had previously agreed with

the immigration judge’s observation that his criminal history barred him from

seeking asylum. The Board has the power to accept supplemental filings, see,

e.g., 8 C.F.R. §§ 1003.1(e)(9), 1003.3(c)(1), and we have held that it must

exercise its discretion to accept such filings when faced with the opportunity to

do so, Garcia v. Holder, 621 F.3d 906, 913 (9th Cir. 2010). Assuming without

deciding that the Board erred in failing to address Rios’s motion, the error does

not require remand unless it caused prejudice. Zamorano v. Garland, 2 F.4th

1213, 1226, 1228 (9th Cir. 2021).

Rios cannot establish prejudice. The Board addressed the argument in

Rios’s supplemental filing by devoting a section of its decision to explaining

why Rios had waived his asylum claim. Thus, the Board effectively considered

the arguments Rios sought to advance.

Moreover, as the Board explained, Rios did indeed waive his asylum

claim. “Absent egregious circumstances, a distinct and formal admission made

before, during, or even after a proceeding by an attorney acting in his

professional capacity binds his client as a judicial admission.” Matter of

Velasquez, 19 I. & N. Dec. 377, 382 (B.I.A. 1986). Rios has not shown

egregious circumstances here. He has neither made an argument for ineffective

assistance of counsel, nor “offer[ed] evidence proving that ‘the factual

admissions and concession . . . were untrue or incorrect.’” Santiago-Rodriguez

v. Holder, 657 F.3d 820, 832 (9th Cir. 2011) (quoting Velasquez, 19 I. & N.

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Dec. at 383). In particular, Rios does not dispute that he was convicted of an

aggravated felony, which would bar any asylum claim. See 8 U.S.C. §

1158(b)(2)(A)(ii), (b)(2)(B)(i).

The motions to stay removal (Dkt. Nos. 4, 10) are denied.

PETITION DENIED.

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