Toloza Ibarra v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2023
• Docket: 22-684
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JUN 14 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FREDY EDUARDO TOLOZA IBARRA, No. 22-684 Agency No. Petitioner, A087-746-223 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 8, 2023** Pasadena, California

Before: M. SMITH and DESAI, Circuit Judges, and AMON, District Judge.***

Fredy Eduardo Toloza Ibarra, a native and citizen of Mexico, seeks

review of the Board of Immigration Appeals’ (“Board”) decision dismissing his

appeal of the Immigration Judge’s (“IJ”) denial of his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

* 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 Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

We review the Board’s denial of asylum, withholding, and CAT claims

for substantial evidence. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th

Cir. 2019). Considering “the totality of the circumstances and all relevant

factors,” we also review the Board’s credibility findings for substantial

evidence. Kumar v. Garland, 18 F.4th 1148, 1152–53 (9th Cir. 2021) (cleaned

up).

1. Substantial evidence supports the Board’s adverse credibility

determination. The Board gave “specific and cogent reasons” for its credibility

finding, and the record does not compel a contrary conclusion. Shrestha v.

Holder, 590 F.3d 1034, 1042 (9th Cir. 2010).1 The Board and IJ identified

several inconsistencies in Mr. Toloza’s testimony, including inconsistencies

about the cartel with which Mr. Toloza’s father allegedly associated. The Board

also found it “implausible” that Mr. Toloza would not claim a fear of returning

to Mexico when he was detained by ICE in 2016 if, as he alleged in his

testimony, he had been threatened nine times since 2010. See Ruiz-Colmenares

v. Garland, 25 F.4th 742, 749 (9th Cir. 2022) (“Petitioner’s failure to plausibly

explain why he never mentioned any fear of returning to Mexico or any of the

claimed robberies and assaults following prior deportations is significant and

1 Mr. Toloza argues that the Board applied the incorrect standard of review to the IJ’s adverse credibility finding. It did not. The Board reviewed the IJ’s credibility finding for clear error, 8 C.F.R. § 1003.1(d)(3)(i), based on the “totality of the circumstances, and all relevant factors,” 8 U.S.C. 1158(b)(1)(B)(iii).

2 was properly considered and weighed by the agency in making its adverse

credibility determination.”).

2. Substantial evidence also supports the Board’s finding that Mr.

Toloza was ineligible for asylum and withholding of removal. Without credible

testimony about issues central to his eligibility for asylum and withholding, Mr.

Toloza could not establish his asylum and withholding claims. See Rodriguez-

Ramirez v. Garland, 11 F.4th 1091, 1094 (9th Cir. 2021); Farah v. Ashcroft,

348 F.3d 1153, 1156 (9th Cir. 2003).

3. Finally, substantial evidence supports the Board’s holding that Mr.

Toloza is ineligible for CAT protection. “An adverse credibility determination

is not necessarily a death knell to CAT protection.” Shrestha, 590 F.3d at 1048.

But when a “petitioner’s testimony is found not credible, to reverse the BIA’s

decision denying CAT protection, we would have to find that the reports alone

compelled the conclusion that the petitioner is more likely than not to be

tortured.” Id. at 1048–49 (cleaned up); see also 8 C.F.R. § 1208.16(c)(2). Mr.

Toloza submitted reports and articles that describe generalized violence, cartel

activity, and police corruption in Mexico. This evidence, standing alone, “falls

far short of compelling the conclusion that” Mr. Toloza “is more likely than not

to be tortured if he returns to” Mexico. Manes v. Sessions, 875 F.3d 1261, 1265

(9th Cir. 2017).

DENIED.