Opinion
20-73765
10-21-2022
ESTUARDO DONIS-DEL CID, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 19, 2022 Seattle, Washington
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-547-583
Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.
MEMORANDUM
Estuardo Donis-Del Cid, a Guatemalan citizen, petitions for review of the Board of Immigration Appeals' ("BIA") affirmance of an Immigration Judge's ("IJ") denial of his applications for asylum and withholding of removal under the Immigration and Nationality Act ("INA") and the Convention Against Torture ("CAT"). "We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal," Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and deny the petition.
"We review the BIA's denials of asylum, withholding of removal, and CAT relief for 'substantial evidence' and will uphold a denial supported by 'reasonable, substantial, and probative evidence on the record considered as a whole.'" Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (quotation and citations omitted). When "the BIA adopts the IJ's decision while adding its own reasons," the court reviews both. Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011).
1. Donis-Del Cid argues that the BIA erred in affirming the IJ's adverse-credibility determination. The IJ based her determinations on several inconsistencies between Donis-Del Cid's declaration submitted in support of his application for asylum and his later hearing testimony: most notably, his declaration asserted that he had never been physically harmed while he testified that gang members held him by the neck and kicked him. The BIA concluded the IJ did not err because the IJ provided specific, cogent reasons for the finding and gave Donis-Del Cid multiple opportunities to explain the inconsistencies, which he never did adequately.
"[W]e review adverse credibility determinations under the substantial evidence standard." Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010).
"[O]nly the most extraordinary circumstances will justify overturning an adverse credibility determination." Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020) (quoting Jin v. Holder, 748 F.3d 959, 964 (9th Cir. 2014)). The IJ "must give the petitioner the opportunity" to explain "an apparent inconsistency," Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011), overruled in part on other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc), and "provide 'specific and cogent reasons'" for its determination, Iman, 972 F.3d at 1064 (quotation omitted). The court considers the "totality of the circumstances" in reviewing the credibility determination. Alam, 11 F.4th at 1135.
Substantial evidence supports the IJ's adverse-credibility determination, and specific and cogent reasons explain her reasoning. The IJ noted that Petitioner failed to adequately explain the affirmative contradiction, despite asserting this assault was the worst thing that happened to him in Guatemala and the basis for his fear of returning there. This inconsistency and the others discussed constitute substantial evidence. See Kin v. Holder, 595 F.3d 1050, 1056-57 (9th Cir. 2010) (petitioners' failure "to mention their participation in the key political demonstration they later claimed was the basis for their arrests and subsequent persecution" combined with lack of persuasive explanation constituted substantial evidence).
2. Donis-Del Cid next argues the BIA erred in affirming the IJ's adjudication of the merits of his asylum and withholding of removal claims. "Because concluding that the adverse credibility determination is based on substantial evidence is sufficient to deny" Donis-Del Cid's petition with respect to claims under the INA, we do not address these alternative grounds. Shrestha, 590 F.3d at 1048 n.6; see also Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000) ("A failure to satisfy the lower standard of proof required to establish eligibility for asylum therefore necessarily results in a failure to demonstrate eligibility for withholding of deportation.").
3. Donis-Del Cid finally argues the BIA erred in affirming the IJ's denial of his claim under CAT. CAT relief is distinct from relief under the INA, and "[a] failure to establish eligibility for asylum does not necessarily doom" a CAT claim. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
We deny this basis for relief because Petitioner has not shown that "it is more likely than not that he . . . would be tortured if removed" to Guatemala, Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 894 (9th Cir. 2018) (quoting 8 C.F.R. § 1208.16(c)(2)), or that a public official or other person acting in an official capacity would consent or acquiesce to his torture, Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Petitioner has not shown past torture. See Tzompantzi-Salazar v. Garland, 32 F.4th 696, 706 (9th Cir. 2022) (collecting cases). And the country-conditions evidence he submitted does not "demonstrate that he, in particular, would more likely than not face torture" if he returned. Id.
PETITION DENIED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).