Walter Funes-Acevedo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2021
• Docket: 19-70550
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WALTER BLADIMIR FUNES- No. 19-70550 ACEVEDO, AKA Walter Fuentes-Acevedo, Agency No. A206-899-076 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Walter Bladimir Funes-Acevedo, a native and citizen of El Salvador,

petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

application for withholding of removal and relief under the Convention Against

* 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). Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings, applying the standards

governing adverse credibility determinations under the REAL ID Act. Shrestha v.

Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We review de novo claims of due

process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738

(9th Cir. 2014). We deny the petition for review.

We do not consider Funes-Acevedo’s asylum claim because the BIA did not

decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.

2011) (review limited to the grounds relied on by the BIA), and Funes-Acevedo

does not contend the BIA erred in finding that his asylum claim was not properly

before it, see Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013)

(failure to contest issue in opening brief resulted in waiver).

Substantial evidence supports the agency’s adverse credibility determination

based on discrepancies between Funes-Acevedo’s declaration and testimony as to

the threats and harm he experienced in El Salvador and his failure to provide

corroborating evidence. See Shrestha, 754 F.3d at 1048 (adverse credibility

determination reasonable under “the totality of circumstances”). Funes-Acevedo’s

explanations do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241,

1245 (9th Cir. 2000). Substantial evidence also supports the finding that Funes-

Acevedo did not present documentary evidence that would otherwise establish his

2 19-70550 eligibility for relief. See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014)

(petitioner’s documentary evidence was insufficient to independently support

claim). Thus, in the absence of credible testimony, Funes-Acevedo’s withholding

of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.

2003).

Substantial evidence also supports the agency’s denial of Funes-Acevedo’s

CAT claim because it was based on the same evidence found not credible, and he

does not point to any other record evidence that compels the conclusion that it is

more likely than not he would be tortured by or with the consent or acquiescence

of the government if returned to El Salvador. See Shrestha, 754 F.3d at 1048-49.

Funes-Acevedo’s contention that the IJ violated his right to due process by

refusing to admit untimely exhibits, and his claim of IJ bias, fail. See Lata, 204

F.3d at 1246 (requiring substantial error and prejudice to prevail on a due process

claim); see also Rivera v. Mukasey, 508 F.3d 1271, 1276 (9th Cir. 2007) (bias

cannot be basis for denial of application where factual record supports denial).

As stated in the court’s May 9, 2019 order, the stay of removal remains in

place until issuance of the mandate.

PETITION FOR REVIEW DENIED.

3 19-70550