FILED NOT FOR PUBLICATION SEP 13 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIVALSON GEFFRARD, No. 18-70445
Petitioner, Agency No. A209-875-470
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 10, 2019 Pasadena, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District Judge.
Sivalson Geffrard (Petitioner), a native and citizen of Haiti, petitions for
review of the order of the Board of Immigration Appeals (Board) summarily
affirming the denial of his application for asylum, withholding of removal, and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. protection under the Convention Against Torture (CAT). We review the decision
of the Immigration Judge (IJ) when the Board summarily affirms that decision.
See Ming Dai v. Sessions, 884 F.3d 858, 866 (9th Cir. 2018).
We review factual findings, including adverse credibility determinations, for
substantial evidence, and we may reverse only when “the evidence not only
supports a contrary conclusion, but compels it.” Yali Wang v. Sessions, 861 F.3d
1003, 1007 (9th Cir. 2017) (citation, alteration, and internal quotation marks
omitted).
Given the “healthy measure of deference to agency credibility
determinations” that the REAL ID Act requires, id. (citation and internal quotation
marks omitted), we conclude that substantial evidence supports the adverse
credibility determination. See Shrestha v. Holder, 590 F.3d 1034, 1046-47 (9th
Cir. 2010) (upholding adverse credibility finding where inconsistency was relevant
to “the crux of [petitioner’s] application for relief”).
The record establishes that Petitioner was inconsistent about the timing of
the attack that led to his departure, and he failed to explain that inconsistency. See
Don v. Gonzales, 476 F.3d 738, 742 (9th Cir. 2007) (explaining that
inconsistencies regarding timing of events leading up to petitioner’s departure are
not trivial). In his credible fear interview and asylum application, Petitioner stated
2 that he was attacked by a mob “the same day” as the day his partner was killed.
Yet, Petitioner testified at his merits hearing that the mob “attempted to kill [him],”
when it returned “two days later.” Petitioner also testified inconsistently that the
mob searched for him on December 9, 2014, and returned for him on December,
12, 2014, three days later.
Petitioner also conceded that he told a Customs and Border Patrol officer
that he did not fear persecution if returned to Haiti. His statement corroborates the
adverse credibility determination because Petitioner made the statement while
unaware of the evidence needed to support an asylum claim.
Because substantial evidence supports the adverse credibility determination,
Petitioner is ineligible for asylum and withholding of removal.1 See Manes v.
Sessions, 875 F.3d 1261, 1265 (9th Cir. 2017) (upholding denial of asylum based
on adverse credibility determination); see also Guo v. Sessions, 897 F.3d 1208,
1213 n.3 (9th Cir. 2018) (“[F]ailure to satisfy the lower standard of proof required
to establish eligibility for asylum necessarily results in a failure to demonstrate
eligibility for withholding of deportation.”) (citation and alteration omitted).
1 Because we hold that Petitioner is ineligible for asylum and withholding of removal, we need not decide whether Petitioner was firmly resettled. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). 3 The IJ properly denied Petitioner’s CAT claim because it is predicated on
the same evidence that the IJ did not find credible, and the United States
Department of State country report (Country Report) alone does not compel the
conclusion that Petitioner would more likely than not be tortured if returned to
Haiti. See Angov v. Lynch, 788 F.3d 893, 910 (9th Cir. 2015) (affirming denial of
CAT relief where petitioner was not credible and did not present other evidence
showing it was more likely than not that he would be tortured upon return). The
Country Report mentions hostile social attitudes toward “outward LGBTI [lesbian,
gay, bisexual, transgender, and intersex] identification and expression.”
The Country Report also notes that the Haitian National Police were not
consistently willing to document or investigate LGBTI persons’ claims of abuse,
and that “the police themselves were afraid of repercussions from their own
community if they were seen to be supporting the claims of LGBTI victims.”
However, the Country Report further stated that the Haitian government
“specifically trained new officers on crimes commonly committed against the
LGBTI community,” and that there were no reports of police officers “actively
perpetrating or condoning violence against members of the [LGBTI] community.”
Petitioner also stated that he had not been harmed by Haitian government officials
or police officers. Cf. Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)
4 (determining that a likelihood of torture existed where the government was
involved in the torture of gay men, homosexuality was criminalized, and the
government acquiesced in the torture of gay men by others).
PETITION DENIED.
5 FILED SEP 13 2019 MOLLY C. DWYER, CLERK Silvalson Geffrard v. William Barr, No. 18-70445 U.S. COURT OF APPEALS
MURGUIA, Circuit Judge, concurring in part and dissenting in part:
I agree with my colleagues that Petitioner is ineligible for asylum—not
because the adverse credibility determination is supported by substantial evidence
but because the firm resettlement bar applies. However, as to withholding of
removal and relief under CAT, I would reverse and remand for further proceedings
because the IJ’s adverse credibility finding is not supported by substantial
evidence.
The IJ’s adverse credibility determination was based on three apparent
inconsistencies: 1) Petitioner’s testimony regarding the date of the attack,
2) whether Petitioner and his boyfriend “came out” as gay men, and 3) Petitioner’s
initial statement at the border that he had no fear of returning to Haiti. In my
view, the first is trivial, the second is wholly unfounded, and the third was
adequately explained. Indeed, even the majority disregards the second
“inconsistency,” and the IJ concedes that if the “only inconsistency in this case
would have been the [third inconsistency], the Court would not make an adverse
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FILED NOT FOR PUBLICATION SEP 13 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIVALSON GEFFRARD, No. 18-70445
Petitioner, Agency No. A209-875-470
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 10, 2019 Pasadena, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District Judge.
Sivalson Geffrard (Petitioner), a native and citizen of Haiti, petitions for
review of the order of the Board of Immigration Appeals (Board) summarily
affirming the denial of his application for asylum, withholding of removal, and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. protection under the Convention Against Torture (CAT). We review the decision
of the Immigration Judge (IJ) when the Board summarily affirms that decision.
See Ming Dai v. Sessions, 884 F.3d 858, 866 (9th Cir. 2018).
We review factual findings, including adverse credibility determinations, for
substantial evidence, and we may reverse only when “the evidence not only
supports a contrary conclusion, but compels it.” Yali Wang v. Sessions, 861 F.3d
1003, 1007 (9th Cir. 2017) (citation, alteration, and internal quotation marks
omitted).
Given the “healthy measure of deference to agency credibility
determinations” that the REAL ID Act requires, id. (citation and internal quotation
marks omitted), we conclude that substantial evidence supports the adverse
credibility determination. See Shrestha v. Holder, 590 F.3d 1034, 1046-47 (9th
Cir. 2010) (upholding adverse credibility finding where inconsistency was relevant
to “the crux of [petitioner’s] application for relief”).
The record establishes that Petitioner was inconsistent about the timing of
the attack that led to his departure, and he failed to explain that inconsistency. See
Don v. Gonzales, 476 F.3d 738, 742 (9th Cir. 2007) (explaining that
inconsistencies regarding timing of events leading up to petitioner’s departure are
not trivial). In his credible fear interview and asylum application, Petitioner stated
2 that he was attacked by a mob “the same day” as the day his partner was killed.
Yet, Petitioner testified at his merits hearing that the mob “attempted to kill [him],”
when it returned “two days later.” Petitioner also testified inconsistently that the
mob searched for him on December 9, 2014, and returned for him on December,
12, 2014, three days later.
Petitioner also conceded that he told a Customs and Border Patrol officer
that he did not fear persecution if returned to Haiti. His statement corroborates the
adverse credibility determination because Petitioner made the statement while
unaware of the evidence needed to support an asylum claim.
Because substantial evidence supports the adverse credibility determination,
Petitioner is ineligible for asylum and withholding of removal.1 See Manes v.
Sessions, 875 F.3d 1261, 1265 (9th Cir. 2017) (upholding denial of asylum based
on adverse credibility determination); see also Guo v. Sessions, 897 F.3d 1208,
1213 n.3 (9th Cir. 2018) (“[F]ailure to satisfy the lower standard of proof required
to establish eligibility for asylum necessarily results in a failure to demonstrate
eligibility for withholding of deportation.”) (citation and alteration omitted).
1 Because we hold that Petitioner is ineligible for asylum and withholding of removal, we need not decide whether Petitioner was firmly resettled. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). 3 The IJ properly denied Petitioner’s CAT claim because it is predicated on
the same evidence that the IJ did not find credible, and the United States
Department of State country report (Country Report) alone does not compel the
conclusion that Petitioner would more likely than not be tortured if returned to
Haiti. See Angov v. Lynch, 788 F.3d 893, 910 (9th Cir. 2015) (affirming denial of
CAT relief where petitioner was not credible and did not present other evidence
showing it was more likely than not that he would be tortured upon return). The
Country Report mentions hostile social attitudes toward “outward LGBTI [lesbian,
gay, bisexual, transgender, and intersex] identification and expression.”
The Country Report also notes that the Haitian National Police were not
consistently willing to document or investigate LGBTI persons’ claims of abuse,
and that “the police themselves were afraid of repercussions from their own
community if they were seen to be supporting the claims of LGBTI victims.”
However, the Country Report further stated that the Haitian government
“specifically trained new officers on crimes commonly committed against the
LGBTI community,” and that there were no reports of police officers “actively
perpetrating or condoning violence against members of the [LGBTI] community.”
Petitioner also stated that he had not been harmed by Haitian government officials
or police officers. Cf. Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)
4 (determining that a likelihood of torture existed where the government was
involved in the torture of gay men, homosexuality was criminalized, and the
government acquiesced in the torture of gay men by others).
PETITION DENIED.
5 FILED SEP 13 2019 MOLLY C. DWYER, CLERK Silvalson Geffrard v. William Barr, No. 18-70445 U.S. COURT OF APPEALS
MURGUIA, Circuit Judge, concurring in part and dissenting in part:
I agree with my colleagues that Petitioner is ineligible for asylum—not
because the adverse credibility determination is supported by substantial evidence
but because the firm resettlement bar applies. However, as to withholding of
removal and relief under CAT, I would reverse and remand for further proceedings
because the IJ’s adverse credibility finding is not supported by substantial
evidence.
The IJ’s adverse credibility determination was based on three apparent
inconsistencies: 1) Petitioner’s testimony regarding the date of the attack,
2) whether Petitioner and his boyfriend “came out” as gay men, and 3) Petitioner’s
initial statement at the border that he had no fear of returning to Haiti. In my
view, the first is trivial, the second is wholly unfounded, and the third was
adequately explained. Indeed, even the majority disregards the second
“inconsistency,” and the IJ concedes that if the “only inconsistency in this case
would have been the [third inconsistency], the Court would not make an adverse
credibility finding.” This leaves only the first “inconsistency” regarding the date
of the attack.
The IJ and the majority find Petitioner not credible because, in his oral testimony, Petitioner said that the mob attacked him on December 12, but in his
written testimony, he said the mob attacked him on December 9. The IJ points out
that, in one story, the angry mob went to Petitioner’s mother’s home on December
9 but did not find Petitioner, and therefore returned on December 12 to attack him.
In the second version of his story, Petitioner returned to his mother’s home on
December 9 and was attacked that same day. The IJ and the majority find this
minor date discrepancy detrimental to Petitioner’s application. I find it trivial.
Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011) (reversing the IJ’s adverse
credibility determination because it was based on trivial inconsistencies); see also
Zhi v. Holder, 751 F.3d 1088, 1091-92 (9th Cir. 2014) (“[W]e conclude that
substantial evidence does not support the BIA’s determination that the conflict in
dates resulted in a legally significant discrepancy in the evidence.”); Singh v.
Gonzales, 403 F.3d 1081, 1090-91 (9th Cir. 2005) (in a pre-REAL ID Act case, the
Court held that a minor discrepancy in dates could not support an adverse
credibility determination).
Other than mixing up the dates, Petitioner’s rendition of the horrifying
events leading to his flight from Haiti is consistent: Petitioner was visiting with a
friend when an angry mob murdered his boyfriend by stoning him and hitting him
with batons. Whether on December 9 or December 12, the mob found Petitioner at his mother’s home and attempted to cut him with a knife; Petitioner survived
because he fled to his brother’s house. We know that “victims of abuse ‘often
confuse the details of particular incidents, including the time or dates of particular
assaults and which specific actions occurred on which specific occasion.’” Ren,
648 F.3d at 1085-86 (citation omitted). And no one can conclude that Petitioner
was attempting to enhance his claims by placing the attack on December 9 versus
December 12, or vice versa. Id. at 1086 (“As we have repeatedly held, ‘minor
discrepancies in dates that . . . cannot be viewed as attempts by the applicant to
enhance his claims of persecution have no bearing on credibility.’” (citation
omitted)). Considering the totality of the circumstances—as the IJ was bound to
do and as we are bound to do on appeal—I cannot conclude that this trivial
discrepancy provides substantial evidence to make an adverse credibility finding.
Therefore, I respectfully dissent in part.