Loja-Paguay v. Barr ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-2172
JOSE ANTONIO LOJA-PAGUAY,
Petitioner,
v.
WILLIAM P. BARR,*
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Daniel T. Welch, Kevin MacMurray, and MacMurray & Associates
on brief for petitioner.
Brendan P. Hogan, Attorney, U.S. Department of Justice,
Office of Immigration Litigation, Joseph H. Hunt, Assistant
Attorney General, Civil Division, and Cindy S. Ferrier, Assistant
Director, on brief for respondent.
September 16, 2019
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Acting Attorney
General Matthew G. Whitaker as the respondent.
LYNCH, Circuit Judge. Jose Antonio Loja-Paguay, a
native and citizen of Ecuador, seeks review of a Board of
Immigration Appeals (BIA) decision affirming an Immigration
Judge's (IJ) denial of his claims for asylum under the Immigration
and Nationality Act (INA) § 208, 8 U.S.C. § 1158, withholding of
removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and
protection under Article 3 of the United Nations Convention Against
Torture (CAT).1
The IJ found that Loja was not a credible witness based
on several discrepancies in his testimony that were not adequately
explained, and the combination of that finding and the remaining
evidence demonstrated that Loja had not met his burden for any
relief. As to CAT relief, independent of Loja's testimony, the IJ
found there was nothing to show Loja would be tortured upon his
return to Ecuador. The IJ ordered him removed. The BIA affirmed.
Loja argues to us that the BIA erred in determining he
had not meaningfully challenged the adverse credibility finding,
in affirming that finding, and in failing to consider all the
evidence. Because there was substantial evidence supporting the
1 The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242, 112 Stat.
2681–761 (codified at 8 U.S.C. § 1231).
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BIA's affirmance of the IJ's decision, we deny the petition for
review.
I.
Loja entered the United States on January 11, 2013, near
Hidalgo, Texas, and was apprehended by immigration officials. Loja
stated that he entered the United States because "he was traveling
to New Jersey to reside and to seek employment for approximately
two years." An asylum officer conducted a credible fear interview
with Loja in Spanish.2 Loja stated that he could not return to
Ecuador because of a series of events that took place in November
2012.
According to Loja, on November 15, 2012, two police
officers entered his food store and "said [he] had to sell drugs
and guns for them." Loja refused. On November 20, 2012, the two
officers returned with a third officer and told Loja that "if [he]
did not sell the drugs and guns," the officers would kill him.
The officers warned Loja not to tell anyone else what they wanted.
When the asylum officer asked Loja why he did not report this
incident to the police, Loja gave two reasons: that the police in
Ecuador are corrupt and that his neighbors had told him the police
killed his father. After the incident, Loja's neighbor told him
that one of the police officers was the same person who killed his
2 A paralegal from Loja's attorney's office listened in on
the interview.
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father. Loja closed his store but reopened it on November 25,
2012. That day, the officers returned and beat Loja until he was
unconscious while saying, "we are going to kill you." Loja did
not report this incident because he feared the police and now "knew
that one of them killed [his] father." Loja left Ecuador on
November 27, 2012.
On February 15, 2013, the Department of Homeland
Security served Loja with a Notice to Appear in removal
proceedings, charging that he was inadmissible under
§ 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I).
On April 16, 2014, Loja conceded removability and stated his intent
to seek asylum, withholding of removal, voluntary departure, and
relief under the CAT.
That day, Loja filed an application for asylum. The
affidavit attached to the asylum application described the same
three events involving the police that he had recounted in the
credible fear interview. Loja again said that he fled Ecuador out
of fear that the police officers would return and kill him "like
they killed [his] father."
At his merits hearing in 2017, Loja testified with the
assistance of an interpreter. Loja told the IJ about the same
three incidents involving police officers, and stated that he did
not report the incidents due to police corruption in Ecuador. But
he did not say that one of those officers had killed his father.
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Loja said, "if I return and I run into them, they are going to
kill me."
The IJ then asked Loja about what happened to his father.
Loja told the IJ that "he died." Loja said he did not know how
his father died, and that all he had been told by neighbors as a
child was that "it was some police officers." The IJ then again
asked Loja, "[t]oday, right now, do you know who killed your
father" and Loja said "[n]o."
The IJ then questioned Loja about his statement to the
asylum officer, but absent from his testimony, that a neighbor had
informed him that one of the police officers threatening him was
the officer who killed his father. Loja responded that "[i]t's
also a long time and I don't even remember" and then said, "I don't
remember specifically what the neighbors told me who killed my
father, but they did tell me that they were police officers." When
asked about the discrepancies between his accounts, Loja first
stated, "[w]ell, I get confused." When the IJ asked again, Loja
said, "[i]t's many years . . . that I said that, so a long time
has passed to remember everything that I said." When the IJ sought
clarification, Loja stated that he forgot.
The IJ issued an oral decision on November 17, 2017. As
to Loja's forgetting that the officer who beat him unconscious was
the officer who reportedly killed his father, the IJ said:
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[T]he respondent during his testimony to the
court never mentioned this and after the
attorneys had questioned the respondent, the
court carefully questioned him and again, he
did not mention this. When the court asked
him to explain and made clear to him what he
had said to the asylum officer, the respondent
answered that he had forgotten. This is
farfetched. This is not plausible. Even
taking into account the fact that the
respondent was born on February 2, 1993 and
interviewed by asylum officers on February 4,
2013, that is even taking into account his age
and the circumstances of his arriving in the
United States, even taking all of that in the
best light for the respondent, it is simply
not plausible that the respondent would forget
that one of the individuals who he alleges
brutally beat him after wanting him to sell
weapons and drugs out of his store was one of
the individuals, according to his neighbor,
who murdered his father. That is simply not
plausible, not believable, and beyond
farfetched. The court finds that respondent
was given every opportunity to explain this.
His attorney has noted that he was aware of
this discrepancy and the respondent has said
that he forgot. This is not a minor fact.
This is not something that the respondent in
this court's view would reasonably forget.
There's been no explanation whatsoever
provided to the court as to why the respondent
would forget that one of the individuals that
beat him unconscious or one of the individuals
that he believes beat him unconscious is the
same individual, a police officer, who killed
his father. This inconsistency, which is
unexplained to this court, is fatal to the
respondent's credibility. The court does not
accept the respondent's explanation that he
simply forgot this.
The IJ then found Loja's entire story not credible, that he had
not shown that he owned a business or was ever assaulted, or that
he had suffered any harm, much less harm rising to the level of
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persecution. Nor had he shown any nexus to one of the five
protected grounds. The IJ also found that Loja lacked a well-
founded fear of future persecution.
Loja appealed the IJ's decision to the BIA, and his
appeal was dismissed on November 2, 2018. The BIA rejected Loja's
challenge to the IJ's determination, including the credibility
finding, and said it found Loja's explanation that he "was
confused" by the IJ's questioning to be "unconvincing," and in any
event, was supported by the IJ's view of the evidence. In the
absence of any credible testimony, Loja had not met his burden for
establishing eligibility for asylum or withholding of removal.
The denial of Loja's CAT claim was supported by the lack of
credibility finding and the absence of any evidence he would be
tortured by or with the acquiescence of any person acting in an
official capacity.
II.
We review "[f]actual findings, including credibility
determinations . . . under the familiar substantial evidence
standard." Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009).
Under this deferential standard, "we must uphold the BIA's decision
'unless any reasonable adjudicator would be compelled to conclude
to the contrary.'" Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.
2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). "In other words,
findings of fact will stand as long as they are 'supported by
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reasonable, substantial, and probative evidence on the record
considered as a whole.'" Jianli Chen v. Holder, 703 F.3d 17, 21
(1st Cir. 2012) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)). Where, like here, "the BIA adopts and affirms the IJ's
ruling but also examines some of the IJ's conclusions, this Court
reviews both the BIA's and IJ's opinions." Perlera–Sola v. Holder,
699 F.3d 572, 576 (1st Cir. 2012).
To be eligible for asylum, an applicant must show
"persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). An
applicant's testimony alone can meet this burden, but if the agency
finds that the testimony is not truthful, "that determination
strips the testimony of probative force and permits the agency to
. . . discount it." Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir.
2007). The REAL ID Act permits the IJ to consider inconsistencies
in an applicant's statements, "without regard to whether an
inconsistency . . . goes to the heart of the applicant's claim."
8 U.S.C. § 1158(b)(1)(B)(iii).
We bypass Loja's meritless assertions that the agency
erroneously found waiver and failed to consider the whole record
or to give a reasoned decision. We get to the attack on the
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adverse credibility finding, as it is clear there is no
corroborating evidence supporting his claims for relief.3
Loja makes three arguments attacking the credibility
finding. He argues that there was no discrepancy in the record,
that he did not forget but was "confused" by the IJ's questioning,
and that even if there were inconsistencies, they "only involved
a very small portion of the testimony."
Loja's challenges fail. Loja admits stating in the
credible fear interview and his asylum affidavit that the same
police officer who beat him also killed his father. Loja failed
to state this fact in his testimony to the IJ, even when he was
specifically asked about his father. Moreover, the IJ was not
required to credit Loja's single assertion of confusion. See,
e.g., Weng v. Holder, 593 F.3d 66, 72 (1st Cir. 2010) (noting that
the IJ is not obligated to accept an explanation for an
3 Loja also argues that the BIA "[did] not accurately
present the facts." Loja points to the BIA's statement that he
"consistently testified he forgot" as being inaccurate because he
also stated that he was confused. However, this statement does
not show that the BIA thought that forgetting was Loja's only
explanation. Rather, the BIA acknowledged Loja's purported
confusion but did not find it convincing.
Loja also states that his interpreter "felt the need to
point out that they could tell that Spanish was not [Loja's] first
language." We reject this argument because Loja told the IJ
multiple times that he understood his interpreter.
Loja also states that "it is common knowledge that being
beaten unconscious hinders memory." This argument has no support
in the record. We reject it.
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inconsistency, even if reasonable and consistent on its face).
Also, Loja stated multiple times that he did not remember.
Loja also argues that these inconsistencies were "a very
small portion of the testimony." These inconsistencies were not
minor. Loja's application for relief stated that he feared
returning to Ecuador in part because the police who beat him also
had killed his father. This fact is central to Loja's asylum
claim. This argument fails under the REAL ID Act.
We conclude there was substantial evidence supporting
the BIA's affirmance of the IJ's decision. The record provides
ample support for the IJ's finding that Loja's statements were
inconsistent and that his explanation was implausible.4
Loja's petition for review is denied.
4 Because Loja has failed to meet his burden for asylum,
he cannot prevail on the higher burden for withholding of removal.
See Li Sheng Wu v. Holder, 737 F.3d 829, 832 n.1 (1st Cir. 2013).
As to CAT relief, an applicant must show that it is "more likely
than not that [he] would be tortured if removed." Id. (quoting
Zheng v. Gonzales, 416 F.3d 97, 101 n.3 (1st Cir. 2005)). Without
Loja's own testimony, the record contains nothing that shows Loja
faced any harm, let alone torture.
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