Zuliema Guerrero-Esperanza v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2021
• Docket: 18-73402
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZULIEMA DOLORES GUERRERO- No. 18-73402 ESPERANZA, AKA Dolores Zuliema Guerrero-Esperanza; et al., Agency Nos. A208-905-534 A208-905-533 Petitioners, A208-905-604

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

Respondent.

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

Argued and Submitted March 2, 2021 Pasadena, California

Before: TALLMAN and OWENS, Circuit Judges, and CHRISTENSEN, ** District Judge.

Zuliema Dolores Guerrero-Esperanza and her children, Ariel Eliseo

Vasquez-Guerrero and Daniel Enrique Vasquez-Guerrero (“the Guerreros”),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. natives and citizens of El Salvador, petition for review of the Board of Immigration

Appeals’ (“BIA”) denial of their applications for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”). The BIA affirmed

the Immigration Judge’s (“IJ”) adverse credibility determination as to both

Zuliema and Daniel and held the Guerreros waived review of their CAT claim. As

the parties are familiar with the facts, we do not recount them here. We deny the

petition for review as to Zuliema. We grant the petition and remand as to Daniel.1

Substantial evidence supports the BIA’s adverse credibility determination as

to Zuliema. Zuliema was inconsistent when describing a specific incident of abuse

by her ex-husband and her inability to consistently recall important facts that go to

the “heart of [her] claim” is given “great weight” when determining credibility.

Manes v. Sessions, 875 F.3d 1261, 1264 (9th Cir. 2017) (per curiam) (citation

omitted). Her testimony included new facts that were not mere “details,” but that

provided a “more compelling . . . story of persecution.” Silva-Pereira v. Lynch,

827 F.3d 1176, 1185 (9th Cir. 2016) (internal quotation marks and citation

omitted). The IJ also appropriately relied on Zuliema’s demeanor during

testimony. See Qiu v. Barr, 944 F.3d 837, 843 (9th Cir. 2019).

Substantial evidence does not support the BIA’s adverse credibility

1 Although Zuliema included both her sons in her application, Daniel also filed a separate application.

2 determination as to Daniel. First, whether Daniel experienced problems while in

school is a “non-material, trivial detail[].” Singh v. Holder, 643 F.3d 1178, 1180

(9th Cir. 2011) (citation omitted). And Daniel’s explanation for the inconsistency

was reasonable after review of the record and because his hearing was conducted

through a translator. See Li v. Holder, 559 F.3d 1096, 1100 n.4 (9th Cir. 2009).

Second, the IJ’s implausibility findings for the second police encounter and

gang members incident were “fatally flawed.” Cui v. Holder, 712 F.3d 1332, 1336

(9th Cir. 2013) (citation omitted). The IJ either mischaracterized Daniel’s

testimony or based its implausibility findings on improper speculation and

conjecture. See Zhi v. Holder, 751 F.3d 1088, 1093 (9th Cir. 2014).

Lastly, the BIA properly held the CAT claim was waived because the

Guerreros did not sufficiently raise it before the BIA. See Alanniz v. Barr, 924

F.3d 1061, 1068-69 (9th Cir. 2019). Parada’s exception does not apply because

the BIA did not address the merits of the CAT claim. See Parada v. Sessions, 902

F.3d 901, 914 (9th Cir. 2018).

PETITION FOR REVIEW DENIED as to Zuliema Dolores Guerrero-

Esperanza.

PETITION FOR REVIEW GRANTED as to Daniel Enrique Vasquez-

Guerrero; REMANDED.