Yasser Tabares Leyva v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2021
• Docket: 20-70762
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YASSER ABEL TABARES LEYVA, No. 20-70762

Petitioner, Agency No. A215-880-364

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted March 8, 2021** San Francisco, California

Before: McKEOWN and IKUTA, Circuit Judges, and ERICKSEN,*** District Judge.

Yasser Abel Tabares Leyva, a native and citizen of Cuba, seeks review of

the Board of Immigration Appeals’ (BIA) decision affirming the decision of the

* 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 Joan N. Ericksen, United States District Judge for the District of Minnesota, sitting by designation. Immigration Judge (IJ) to deny Tabares’ application for asylum. We have

jurisdiction under 8 U.S.C. § 1252(a)(1) and we deny the petition for review.

The IJ’s adverse credibility finding was supported by substantial evidence.

There were sufficient indicia of reliability to permit the BIA and us to consider

Tabares’ sworn statements in his I-877 form and the Customs and Border

Protection officer’s report on form I-213. See Mukulumbutu v. Barr, 977 F.3d 924,

926 (9th Cir. 2020); Angov v. Lynch, 788 F.3d 893, 905 (9th Cir. 2015) (“The

presumption of regularity has been applied far and wide to many functions

performed by government officials.”). Tabares’ assertion in his sworn asylum

application that his mother and sister had lived in Ecuador for the prior four years

conflicts with his earlier sworn statement that his parents lived in Cuba. Also,

Tabares’ initial statement that his sister lived in Georgia conflicts with his

subsequent sworn testimony that his sister did not live in Georgia. Both the IJ and

the BIA found that these inconsistencies supported an adverse credibility finding,

and no “evidence in the record compels” this court to reach “a contrary result.”

Parussimova v. Mukasey, 555 F.3d 734, 738 (9th Cir. 2009); 8 U.S.C. §

1252(b)(4)(B) (agency factual findings “are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”) Moreover, these

inconsistencies are not “utterly trivial.” Shrestha v. Holder, 590 F.3d 1034, 1044

(9th Cir. 2010) (“When an inconsistency is cited as a factor supporting an adverse

2 credibility determination, that inconsistency should not be a mere trivial error such

as a misspelling.”). Tabares’ other arguments regarding procedural defects in the

record are unexhausted, so we may not consider them. Barron v. Ashcroft, 339

F.3d 814, 819 (9th Cir. 2003).

Absent credible testimony, Tabares’ asylum claim fails. See Farah v.

Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). We need not reach Tabares’ other

arguments.1

PETITION DENIED.

1 Tabares’ motions for stay of removal [Dkt. 1] and to supplement the record [Dkt. 14] are denied as moot.