Walter Castellanos-Monzon v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2019
• Docket: 15-72434
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JAN 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS WALTER RENE CASTELLANOS- No. 15-72434 MONZON, Agency No. A071-602-585 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted December 4, 2018** Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and BASTIAN,*** 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 Stanley Allen Bastian, United States District Judge for the Eastern District of Washington, sitting by designation. Walter Rene Castellanos-Monzon (“Castellanos-Monzon”), a citizen of

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

decision dismissing his appeal. The BIA adopted and affirmed the Immigration

Judge’s (IJ) decision denying his applications for relief under the Nicaraguan

Adjustment and Central American Relief Act (NACARA), asylum and withholding

of removal, and request for protection under the Convention Against Torture

(CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

Substantial evidence supports the denial of relief on adverse credibility

grounds. The IJ must provide “specific cogent reasons” for adverse credibility

findings, and the reasons set forth must be “substantial and must bear a legitimate

nexus to the finding.” See Lopez-Reyes v. I.N.S., 79 F.3d 908, 911 (9th Cir. 1996).

The IJ gave specific cogent reasons for its adverse credibility finding here: the

Asylum Officer (AO) testified credibly; Castellanos-Monzon’s daughter was fluent

in English and Spanish; he indicated he did not have any trouble understanding his

daughter; a monitor was present who was listening to the interview; his testimony

was read back to him at the conclusion of the interview; the nature of the

inconsistencies were too great to attribute to misunderstanding or

miscommunication; and finally, Castellanos-Monzon explained at the hearing that

he had only observed people being subjected to electric shocks or having a bag

2 placed over their heads, contradicting his prior statements. Those reasons were

specific, cogent, and provide substantial evidence to support the IJ’s credibility

determination.

Because we uphold the IJ’s credibility determination, Castellanos-Monzon’s

admission that he participated in the persecution of others supports the United

States’ prima facie case that the persecutor bar applies in this case. See 8 U.S.C. §

1158(b)(2)(A)(i) (barring persecutors from asylum), § 1231(b)(3)(B)(i) (barring

persecutors from withholding of removal); 8 C.F.R. § 1240.66(a) (barring

persecutors from special rule cancellation of removal). Moreover, Castellanos-

Monzon failed to meet his burden of proving that he did not engage in the

persecution of others. See 8 C.F.R. § 1240.8(d) (when the “evidence indicates” that

the persecutor bar “may apply,” the burden shifts to the alien to establish that it

does not apply by a preponderance of the evidence). And the IJ’s conclusion that

Castellanos-Monzon failed to establish past persecution or that he had a well-

founded fear of future persecution is supported by the record; there is no evidence

of torture to support his CAT claim.

Finally, Castellanos-Monzon failed to exhaust his claim before the BIA that

his due process rights were violated. See Barron v. Ashcroft, 358 F.3d 674, 677-78

(9th Cir. 2004) (noting that a petitioner’s failure to raise an issue before the BIA

3 deprives this court of jurisdiction to consider the issue). As such, we lack

jurisdiction to consider his due process claims.

PETITION DENIED.