Teresa Martinez Torres v. Merrick Garland

Opinion

FILED NOT FOR PUBLICATION MAY 11 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERESA MARTINEZ TORRES, AKA No. 20-71175 Teresa Isolina Martinez Chavarria, AKA Teresa Isolina Martinez Torres, Agency No. A206-846-134

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 4, 2021** Seattle, Washington

Before: CHRISTEN and BENNETT, Circuit Judges, and FRIEDMAN,*** District Judge.

* 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 Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. Petitioner Teresa Martinez Torres, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (BIA) decision

dismissing her appeal from an Immigration Judge’s (IJ) order denying her

applications for asylum, withholding of removal, and protection pursuant to the

Convention Against Torture (CAT). We have jurisdiction pursuant to

8 U.S.C. § 1252(a) and we deny the petition.

We review the agency’s legal determinations de novo and factual findings

for substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011).

An IJ’s credibility determinations are entitled to “substantial deference” because

“IJs ‘are in the best position to assess demeanor and other credibility cues that we

cannot readily access on review.’” Oshodi v. Holder, 729 F.3d 883, 892 (9th Cir.

2013) (en banc) (quoting Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010)).

We uphold the agency’s decision “if the decision is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.”

Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th Cir. 2010) (internal quotation

marks and citation omitted). We reverse only if “the evidence in the record

compels a reasonable factfinder to conclude that the BIA’s decision is incorrect.”

Id. (alteration and citation omitted)

2 1. The IJ must provide “specific and cogent reasons supporting an

adverse credibility determination,” and those reasons “must . . . take into account

the totality of the circumstances, and should recognize that the normal limits of

human understanding and memory may make some inconsistencies or lack of

recall present in any witness’s case.” Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir.

2011) (quoting Shrestha, 590 F.3d at 1042, 1044–45) (alterations in original).

“[T]o support an adverse credibility determination, an inconsistency must not be

trivial and must have some bearing on the petitioner’s veracity.” Id.

Here, the IJ identified four specific and cogent reasons to support the

adverse credibility determination, with which the BIA agreed: (1) petitioner

inconsistently recounted the number of incidents of physical harm; (2) petitioner

provided inconsistent information regarding the dates she was harmed; (3)

petitioner inconsistently testified about the number of times she reported gang

threats or violence to the police; (4) petitioner testified inconsistently concerning

the existence and location of corroborating medical evidence. These

inconsistencies are not trivial, and we conclude the agency’s adverse credibility

determination was supported by substantial evidence.

2. Petitioner argues the agency erred by denying her applications for

asylum and withholding. The BIA ruled that “[b]ecause [petitioner’s] account was

3 not credible, [she] did not meet her burden of proof to establish asylum eligibility,”

and it “necessarily follow[ed] that [she] also did not meet her burden of proof to

establish eligibility for withholding of removal.” In the absence of credible

testimony, we conclude the remaining evidence in the record does not compel the

conclusion that the BIA’s decision was inadequately supported. See Shrestha, 590

F.3d at 1048–49.

3. To establish eligibility for CAT relief, petitioner must “prove that it is

more likely than not that [she] would be tortured if [she] were removed to the

proposed country,” and that the torture would be effected by or with the

acquiescence of a public official. Barajas-Romero v. Lynch, 846 F.3d 351, 363

(9th Cir. 2017). Because the BIA’s adverse credibility determination is supported

by substantial evidence, we may only reverse the BIA’s denial of CAT relief if the

remaining record evidence compels the conclusion that it is more likely than not

petitioner will be tortured if she is returned to El Salvador. See Shrestha, 590 F.3d

at 1048–49. Here, the remaining evidence is insufficient to meet this standard. See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).

PETITION DENIED.