Opinion
20-73233
10-19-2022
MARIANO RAMOS-LOPEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent.
NOT FOR PUBLICATION
Submitted October 17, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A209-406-804
Before: McKEOWN, CALLAHAN, and VANDYKE, Circuit Judges.
MEMORANDUM [*]
Petitioner Mariano Ramos-Lopez, a native and citizen of Mexico, seeks review of a Board of Immigrations Appeals' ("BIA") order dismissing his appeal of the Immigration Judge's ("IJ") decision denying his request for deferral of removal under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. The petition for review is denied.
The BIA adopted the reasoning and conclusions of the IJ, so we review both decisions. See Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). "We review for substantial evidence the factual findings underlying the BIA's determination that an applicant is not eligible for CAT protection." Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). "In order for this court to reverse the BIA with respect to a finding of fact, the evidence must compel a different conclusion from the one reached by the BIA." Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011). To be eligible for deferral of removal under CAT, Ramos-Lopez "bears the burden of establishing that [he] will more likely than not be tortured with the consent or acquiescence of a public official if removed to [his] native country." Xochihua-Jaimes, 962 F.3d at 1183; see 8 C.F.R. § 1208.18(a).
Before the Ninth Circuit, Ramos-Lopez asserts that the IJ and BIA failed to consider evidence which established his likelihood of torture in Mexico by various cartel members and that the Mexican government would acquiesce in his torture. Ramos-Lopez's fear of torture in Mexico is primarily based on (1) a violent encounter with the "Los Zetas" cartel that occurred shortly before he left Mexico in 2006, (2) concerns that his alleged cooperation with the U.S. government following his felony conviction would make him a target for the cartels, and (3) rumors that these cartels work with the Mexican government.
However, the IJ found that Ramos-Lopez's credibility was undermined by two major omissions: (1) a failure to mention before the IJ that he had been attacked and stabbed in the leg during his altercation with Los Zetas after the IJ asked if he had "suffered any physical harm as an adult" while in Mexico; and (2) an inability to remember the relevance of Ruben Garcia, an alleged cartel member who Ramos-Lopez previously claimed would kill him for having "snitched to the government." Moreover, the IJ determined that even if Ramos-Lopez's testimony had been found credible, Ramos-Lopez would not be eligible for CAT relief because he had not shown that the private citizens that he feared were "connected in any way to the government." Ramos-Lopez challenges these determinations on appeal.
1. Substantial evidence supported the IJ and BIA's adverse credibility determination. An immigration judge's credibility determination must be "based on the 'totality of the circumstances and all relevant factors.'" Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). But our review of this determination requires a "healthy measure of deference . . . because IJs are in the best position to assess demeanor and other credibility cues that we cannot readily access on review." Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010); see id. ("[O]nly the most extraordinary of circumstances will justify overturning an adverse credibility determination." (quoting Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005))).
Here, after "carefully considering all of the evidence in the record," the IJ concluded that Ramos-Lopez's "two critical and substantive omissions" undercut his credibility. Ramos-Lopez's explanations for these omissions-that he was nervous and forgot because it had been six months from his reasonable fear interview-are not compelling. Kin v. Holder, 595 F.3d 1050, 1057 (9th Cir. 2010) (requiring that an explanation be "persuasive enough to compel the conclusion that the omissions were immaterial"). Ramos-Lopez's omitted details significantly enhance his claims regarding his 2006 interaction with Los Zetas and that other cartel members knew that he had spoken to the government. Thus, his failure to reiterate the details to the IJ when prompted provided substantial evidence to support the IJ's adverse credibility determination. Iman v. Barr, 972 F.3d 1058, 1067-69 (9th Cir. 2020) (distinguishing innocuous omissions from material, claim-enhancing "omissions that tend to show an applicant has fabricated his or her claim").
2. Substantial evidence also supports the IJ and BIA's determination that Ramos-Lopez had not established likelihood of torture by or with government acquiescence. "When the petitioner's 'testimony is found not credible, to reverse the BIA's decision denying CAT protection, we would have to find that the [generalized country] reports alone compelled the conclusion that the petitioner is more likely than not to be tortured.'" Shrestha, 590 F.3d at 1048-49 (cleaned up) (quoting Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006)).
Apart from his own testimony, which the IJ found not to be credible, Ramos-Lopez's contentions that the Mexican government would acquiesce in his torture relies solely on a 2018 State Department Country Conditions Report. The report does not compel a reversal of the agency's decision because, while it reflects the poor conditions in Mexico, it does not "establish that anyone in the Mexican government would acquiesce" in his torture. B.R. v. Garland, 26 F.4th 827, 845 (9th Cir. 2022); see id. (finding that a generalized country conditions report could not cure a lack of "direct evidence that the Mexican government or local Mexican officials . . . have acquiesced in any cartel plan to torture" the petitioner).
3. Ramos-Lopez, for the first time in his reply brief, argues that the notice which initiated his removal proceedings-a Notice of Intent to Issue a Final Administrative Removal Order-was defective, and therefore "the immigration court did not have jurisdiction over [his] removal proceedings." See generally 8 U.S.C. § 1228(b); see also 8 C.F.R. § 238.1(b). Ramos-Lopez failed to raise this argument before the BIA or in his opening brief to this court. Accordingly, we hold that the argument is non-exhausted and waived. See Sola v. Holder, 720 F.3d 1134, 1135-36 (9th Cir. 2013); see also Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).
Respondent's pending Motion for Judicial Notice (Dkt. No. 29) requesting us to take notice of the August 5, 2019 Final Administrative Removal Order is granted. See Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010).
[*] 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).