Opinion
21-617
09-26-2022
Javier Avila Rodriguez, Petitioner, v. Merrick B. Garland, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted September 22, 2022 San Francisco, California
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. A029-559-418
Before: GRABER, FRIEDLAND, and MILLER, Circuit Judges.
MEMORANDUM
Javier Avila Rodriguez, a citizen and native of Mexico, petitions for review of an order of the Board of Immigration Appeals affirming the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
We review the agency's factual findings, including adverse credibility determinations, for substantial evidence. Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). Under that standard, "[t]he agency's 'findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Nasrallah v. Barr, 140 S.Ct. 1683, 1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)).
1. Substantial evidence supports the agency's conclusion that Avila Rodriguez was competent to participate in immigration proceedings. See generally Matter of M-A-M-, 25 I. &N. Dec. 474, 479-80 (B.I.A. 2011) (identifying indicia of competence in immigration proceedings); Salgado v. Sessions, 889 F.3d 982, 987-89 (9th Cir. 2018). The agency reasonably concluded that Avila Rodriguez demonstrated "a rational and factual understanding of the nature and object of the proceedings." Matter of M-A-M-, 25 I. &N. Dec. at 484. During a competency hearing before the immigration judge, Avila Rodriguez stated that he understood that he was in immigration court, that he had admitted to entering the country illegally, and that he was in court to seek asylum and related relief. At his merits hearing, Avila Rodriguez successfully answered nearly every question posed to him by the immigration judge or government counsel. See Salgado, 889 F.3d at 988 (noting that an "inability to answer questions" could indicate incompetency). He also had a "reasonable opportunity to examine and present evidence": He prepared a detailed application for relief and submitted 153 pages of supporting evidence. Matter of M-A-M-, 25 I. &N. Dec. at 484. Avila Rodriguez claims that he was unable to represent himself due to his memory problems. But we have held that "alleged poor memory without some credible evidence of an inability to comprehend or meaningfully participate in the proceedings does not constitute indicia of incompetency." Salgado, 889 F.3d at 989.
Substantial evidence also supports the agency's conclusion that Avila Rodriguez was competent to represent himself under the heightened standard imposed by the injunction in Franco-Gonzalez v. Holder, No. CV-10-02211 DMG (DTBx), 2014 WL 5475097 (C.D. Cal. Oct. 29, 2014). Avila Rodriguez demonstrated an "ability to perform [the] additional functions necessary" to represent himself. Id. at *6. Throughout the proceedings, he was able to "act upon instructions and information presented by the Immigration Judge and government counsel," "present information and evidence relevant to eligibility for relief," and "respond to the allegations and charges in the proceeding." Id. And while Avila Rodriguez struggled to recall certain details about his claim, there is no reason to believe that his memory problems impaired his ability to "exercise [his] rights" or "make informed decisions" about those rights. Id.
2. Substantial evidence supports the agency's adverse credibility determination. When Avila Rodriguez entered the United States in 2019, he provided the immigration officials with a fictitious name and falsely told them that he was a United States citizen but that his documents were stolen.
The agency also found Avila Rodriguez's claims of persecution implausible. See 8 U.S.C. § 1158(b)(1)(B)(iii) (allowing the agency to consider "all relevant factors," including "the inherent plausibility of the applicant's . . . account," when assessing credibility). Avila Rodriguez testified that he was tortured in Mexico in 2004. But the agency reasonably determined that the account was not plausible because Avila Rodriguez had not mentioned the alleged torture during any of his previous eight removals from the United States since 2004, instead mentioning it for the first time in 2019.
3. Substantial evidence supports the agency's denial of Avila Rodriguez's CAT claim. First, the agency reasonably extended its adverse credibility determination to Avila Rodriguez's CAT claim. Although "[a]n adverse credibility determination is not necessarily a death knell to CAT protection," the country-condition reports that Avila Rodriguez submitted do not compel the conclusion that he is more likely than not to be tortured if returned to Mexico. Shrestha v. Holder, 590 F.3d 1034, 1048-49 (9th Cir. 2010). Second, the agency observed that Avila Rodriguez had been removed to Mexico many times over the last several decades and had not been tortured. See Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (noting that the lack of past torture and evidence of safe internal relocation are "[r]elevant considerations").
4. In his brief to the Board, Avila Rodriguez requested humanitarian asylum for the first time. The Board rejected that claim, concluding that (1) Avila Rodriguez forfeited the claim by failing to raise it before the immigration judge, and (2) he was "not statutorily eligible for a humanitarian grant of asylum because he did not establish that he was the victim of past persecution." Because the Board addressed this issue on the merits, the issue has been exhausted. See Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018).
Even if we were to accept Avila Rodriguez's argument that the Board erred by deeming his humanitarian-asylum claim forfeited, substantial evidence nevertheless supports the Board's conclusion that Avila Rodriguez is not statutorily eligible for humanitarian asylum. The Board determined that Avila Rodriguez was not credible. Without credible testimony, Avila Rodriguez cannot demonstrate that he suffered past persecution. And because Avila Rodriguez cannot demonstrate that he has suffered past persecution or will suffer future serious harm, he is not eligible for humanitarian asylum. See Matter of L-S-, 25 I. &N. Dec. 705, 710 (B.I.A. 2012); Singh, 914 F.3d at 662.
5. Avila Rodriguez argues that the immigration judge erred in resolving various other issues, but because the Board did not rely on any of those issues, we do not reach them. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1075-76 (9th Cir. 2020).
The motion for a stay of removal (Dkt. Nos. 2 &9) is denied. The temporary stay of removal is lifted.
PETITION DENIED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).