Opinion
21-70396
10-06-2022
LUCIANO ISAIAS SIQUINA MACHIC, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 4, 2022 Portland, Oregon
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. A206-076-017
Before: OWENS and MILLER, Circuit Judges, and EZRA, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Luciano Siquina Machic ("Siquina"), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' ("BIA") decision dismissing his appeal of the Immigration Judge's ("IJ") denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). "Where, as here, the BIA agrees with and incorporates specific findings of the IJ while adding its own reasoning, we review both decisions." Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). However, "our review is limited to those grounds explicitly relied upon by the BIA." Romero v. Garland, 7 F.4th 838, 840 (9th Cir. 2021) (per curiam) (citation omitted); see also Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) ("[W]e do not review those parts of the IJ's adverse credibility finding that the BIA did not identify as 'most significant' and did not otherwise mention."). "We review factual findings, including adverse credibility determinations, for substantial evidence [and] will uphold the finding unless any reasonable adjudicator would be compelled to conclude to the contrary." Bhattarai, 835 F.3d at 1042 (internal quotation marks and citations omitted). As the parties are familiar with the facts, we do not recount them here. We deny the petition for review.
Under the totality of the circumstances, substantial evidence supports the adverse credibility determination against Siquina. See Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). There were material inconsistencies and omissions among Siquina's testimony, written declaration, application, and interviews with a Border Patrol official and an Asylum Officer ("AO")-including the details of his kidnapping, who he stayed with after his kidnapping, and the kidnappers searching for him after he left Guatemala. And although omissions cannot always support an adverse credibility determination, "omissions are probative of credibility to the extent that later disclosures, if credited, would bolster an earlier, and typically weaker, asylum application." Iman v. Barr, 972 F.3d 1058, 1068 (9th Cir. 2020). Siquina's omissions-from his AO interview that the kidnappers beat and disparaged him for being Mayan, and from his written declaration that the kidnappers continued to search for him for six years after his departure-support the adverse credibility determination because their inclusion would have strengthened his claims. See Mukulumbutu v. Barr, 977 F.3d 924, 927 (9th Cir. 2020) (reasoning that an applicant's omission supported the adverse credibility determination because it was implausible that he forgot to include an event that strengthened his claim).
Siquina blames his inconsistencies and omissions on the interviews and merits hearing being conducted in Spanish-rather than K'iche', his native language. However, substantial evidence supports the BIA's rejection of this explanation because Siquina testified that he spoke fluent Spanish and never submitted an affidavit asserting that he was misunderstood or that he misunderstood the proceedings. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021). Additionally, substantial evidence supports the BIA's determination that the inconsistencies were not trivial, as they were related to his kidnapping and fear of persecution. See Shrestha, 590 F.3d at 1046-47 ("Although inconsistencies no longer need to go to the heart of the petitioner's claim, when an inconsistency is at the heart of the claim it doubtless is of great weight.").
Independent of the adverse credibility determination, substantial evidence supports the BIA's determination that Siquina also failed to establish eligibility for CAT protection because he did not show that "it is more likely than not that (1) [he], in particular, would be (2) subject to harm amounting to torture (3) by or with the acquiescence of a public official if removed." Garcia v. Wilkinson, 988 F.3d 1136, 1147 (9th Cir. 2021); see also Lopez v. Sessions, 901 F.3d 1071, 1078 (9th Cir. 2018) (reasoning that substantial evidence supported the BIA's denial of CAT protection because the applicant only provided generalized evidence of violent country conditions); Tzompantzi-Salazar v. Garland, 32 F.4th 696, 706 (9th Cir. 2022) (stating that the record did not compel the conclusion that the petitioner's kidnappings rose to the level of torture).
PETITION FOR REVIEW DENIED.
The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.