Garcia Oliva v. Garland ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1841
JOSÉ ANTONIO GARCIA OLIVA,
Petitioner,
v.
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Selya, and Montecalvo,
Circuit Judges.
Kevin P. MacMurray and MacMurray & Associates on brief for
petitioner.
Brian M. Boynton, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice, Paul
Fiorino, Senior Litigation Counsel, Office of Immigration
Litigation, and Virginia Lum, Attorney, Office of Immigration
Litigation, on brief for respondent.
October 21, 2024
SELYA, Circuit Judge. The petitioner, José Antonio
Garcia Oliva, seeks judicial review of a final order of the Board
of Immigration Appeals (BIA), which denied his application for
asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (CAT). Concluding, as we do,
that the BIA's order is supported by substantial evidence, we deny
the petition.
I
We briefly rehearse the relevant facts and travel of the
case. The petitioner is a Guatemalan national who entered the
United States on a tourist visa in January of 2000. He overstayed
his tourist visa and — eighteen years after his entry into the
United States — applied for asylum in April of 2018. Later, the
Department of Homeland Security commenced removal proceedings
against the petitioner, charging that he was present in the United
States without being admitted or paroled. See 8 U.S.C.
§ 1182(a)(6)(A)(i). In September of 2018, the petitioner filed
written pleadings in which he conceded removability but cross-
applied for asylum, withholding of removal, and protection under
the CAT.
The petitioner's written asylum application stated that
he last left Guatemala in January of 2000. When asked to list
each of his entries into the United States, the petitioner listed
only one entry: through Miami in January of 2000. The petitioner
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stated that he did not apply for asylum within one year of his
arrival in the United States because he was unaware of the legal
requirement that he do so.
The petitioner's application also stated that, while in
Guatemala, he worked as a bodyguard for a congressman. According
to his application, the petitioner's job was dangerous. He said
that since his life was constantly at risk, he fled Guatemala.
The application added that he feared returning to Guatemala because
he believed that he would be the target of extortions and threats
by gang members. For the same reason, he was afraid of being
tortured.
The petitioner's more detailed asylum affidavit,
subsequently filed, reiterated that his job as a bodyguard for a
congressman was very dangerous. The affidavit explained that the
petitioner's uniform identified the congressman's political party:
the National Advancement Party (PAN). The affidavit further stated
that, as a bodyguard, the petitioner needed to carry a gun at all
times.
In the petitioner's view, the petitioner's engagement
with the congressman was the source of imminent peril even after
his tour of duty was completed. The affidavit described an
incident that allegedly occurred after the petitioner stopped
working as a bodyguard. On that occasion, the petitioner was
approached by two men who said that they were looking for him.
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The men wanted the petitioner to go with them, but the petitioner
refused. The petitioner believed that the men wanted to kill him
because of his previous work as a bodyguard for PAN. The
petitioner's affidavit claimed that it is not uncommon in Guatemala
for rival politicians to order murders and to attack individuals
who belong to different political parties.
On December 19, 2018, a hearing was held before an
Immigration Judge (IJ). The petitioner testified on his own
behalf. Once again, he described the perils that he feared were
awaiting him in Guatemala.
At the conclusion of the hearing, the IJ rendered a
decision in which she first found that the petitioner was not a
credible witness. In her view, the petitioner's answers to
questions were vague and, notably, his oral testimony differed in
material respects from his written account (despite the
petitioner's assurance that the contents of his written
application were true and correct).
These discrepancies included, among other things:
• The petitioner testified that he had entered the
United States numerous times during previous years,
but these trips were not listed on his asylum
application.
• During the hearing, the petitioner described two
incidents in which armed individuals unknown to the
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petitioner supposedly barged into a store half a
block away from his home and told the proprietor
that they were looking for the petitioner. But
neither of these incidents was mentioned in the
petitioner's written application for asylum, even
in response to questions as to whether he, his
family, his friends, or close colleagues had ever
experienced harm, mistreatment, or threats in the
past. The petitioner omitted any reference to
these incidents despite them being "clearly []
responsive" to the question. Instead, his
application spoke only "generally" regarding
violence in Guatemala.
• The affidavit that accompanied the petitioner's
asylum application did not mention these incidents
at all. Rather, it related only an incident in
which two men (with no mention of whether they were
armed) approached the petitioner in Guatemala and
sought to have him go with them.
Given these glaring discrepancies, the IJ found the
petitioner's story implausible. Moreover, she questioned the
legitimacy of the petitioner's fear of remaining in Guatemala both
at the time of his flight and at the time of the hearing. In the
IJ's view, if the petitioner "truly feared that people were looking
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for him and have gotten as close to his home as just half a block
away, and that they were armed, it does not make any
sense . . . that [the petitioner] would remain in the country of
Guatemala for an additional few months before departing for the
United States when he . . . could have left that same day."
Having found the petitioner's testimony incredible, the
IJ buttressed her adverse credibility determination by noting the
petitioner's use of false documentation while in the United States
and his repeated violations of the law (by, for example, driving
a motor vehicle without a valid license). With respect to the
untimeliness of the petitioner's asylum application — filed
eighteen years after his arrival in the United States — the IJ
found that no extraordinary circumstance excused the delay in
filing.1
The IJ further found that the petitioner had not suffered
past persecution. There was no evidence of past physical harm and
the third-party threat received at a store half a block from his
home did not amount to past persecution. Those threats were
neither imminent nor capable of being carried out by the men who
1 After finding the petitioner's asylum application to be
untimely, the IJ analyzed the petitioner's claims of past and
future persecution "in the alternative in the event that the" BIA
did "not uphold the [IJ's] finding on the timeliness of the
application." Because the BIA did not expand on the timeliness
issue, and because we uphold the BIA's decision on other grounds,
we, too, refrain from addressing the timeliness issue.
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voiced them. After all — as the IJ observed — the petitioner had
not established that the men actually sought to harm him. He had
not even established who the men were.
The IJ went on to find that the petitioner had not
established a well-founded fear of future persecution. The
petitioner did not demonstrate that if he returned to Guatemala,
anyone would seek to target him either on account of his former
work as a bodyguard or on account of any other protected ground.
See 8 U.S.C. § 1101(a)(42)(A). Finally, the IJ found that the
petitioner did not provide enough specific information regarding
how he would be targeted in order to satisfy his burden for relief
under the CAT.
The petitioner appealed the IJ's decision. On September
14, 2023, the BIA affirmed. The BIA reasoned that — even apart
from considerations of credibility and timeliness — the petitioner
had not established eligibility for asylum on account of past
persecution or a well-founded fear of future persecution. The BIA
specifically noted that the petitioner's account of armed men
visiting a nearby store did not rise to the level of past
persecution. The BIA also determined that the petitioner failed
to make any meaningful claim that threats had been made against
him in Guatemala in the past twenty years, that anyone would seek
to target him on account of employment with PAN, or that his status
as a former bodyguard would lead to him being harmed. Finally,
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the BIA upheld the IJ's findings that the petitioner did not
establish eligibility either for withholding of removal or for
protection under the CAT.
This timely petition for judicial review followed.
II
Where, as here, the BIA's decision rests primarily on
the IJ's decision, we review the two decisions as a unit. See
Zaruma-Guaman v. Wilkinson, 988 F.3d 1, 5 (1st Cir. 2021). To
obtain asylum, the petitioner had to show that he was a "refugee"
as defined by the Immigration and Nationality Act. 8 U.S.C.
§ 1158(b)(1). Thus, the petitioner needed to prove that he was
"unable or unwilling to return to his homeland on account of either
past persecution or a well-founded fear of future persecution."
Zaruma-Guaman, 988 F.3d at 5. He also had to prove that this
persecution (whether occurring in the past or feared to occur in
the future) was on account of one of the five statutorily protected
grounds, namely, "race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). When a petitioner successfully proves past
persecution, a rebuttable presumption of future persecution
arises. See Rivera-Coca v. Lynch, 844 F.3d 374, 378-79 (1st Cir.
2016).
In asylum cases, a petitioner may prove his entitlement
to asylum "by [his] own testimony if that testimony is specific
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and credible." Chhay v. Mukasey, 540 F.3d 1, 6 (1st Cir. 2008).
By the same token, an adverse credibility determination,
appropriately reached, "may in itself suffice to defeat an alien's
claim for asylum." Mashilingi v. Garland, 16 F.4th 971, 977 (1st
Cir. 2021). Because the petitioner's own testimony is critical to
carrying his burden of establishing sufficient proof of
persecution (either past or feared), we start with the IJ's
determination that the petitioner's testimony was not credible.
For the sake of completeness, we then address the petitioner's
failed attempt to prove persecution.
Our starting point is the IJ's adverse credibility
determination. We conduct our review under the deferential
"substantial evidence" standard. Id. Under this standard, "[a]s
long as the agency's credibility determination is 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole,' we must accept it." Zaruma-Guaman, 988
F.3d at 5 (quoting Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir.
2009)). Absent an error of law, "we will reverse only if the
record is such as to compel a reasonable factfinder to reach a
contrary determination." Id. (quoting Chhay, 540 F.3d at 5).
When making credibility judgments, IJs must consider
"the totality of the circumstances" and a litany of factors
delineated by Congress, viz.:
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[T]he demeanor, candor, or responsiveness of
the applicant or witness, the inherent
plausibility of the applicant's or witness's
account, the consistency between the
applicant's or witness's written and oral
statements (whenever made and whether or not
under oath, and considering the circumstances
under which the statements were made), the
internal consistency of each such statement,
the consistency of such statements with other
evidence of record (including the reports of
the Department of State on country
conditions), and any inaccuracies or
falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant's
claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
The petitioner argues that the IJ's adverse credibility
determination was mistaken for several reasons, including that any
inconsistencies were not significant enough to justify an adverse
credibility determination; that the petitioner provided candid
testimony; and that the petitioner offered reasonable but
uncredited explanations in response to the IJ's probing.
Notwithstanding the petitioner's attack, we conclude that the IJ's
adverse credibility determination withstands scrutiny.
Our review of the record leads us to conclude that the
IJ acted appropriately in relying on the petitioner's differing
accounts of interactions with men in Guatemala and his inconsistent
testimony regarding entries into the United States to undermine
his credibility. We add, moreover, that — contrary to the
petitioner's importunings — the IJ appropriately considered what
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she perceived as the petitioner's lack of candor and lack of
responsiveness in finding the petitioner not credible. See
Zaruma-Guaman, 988 F.3d at 6 (noting that "a judicial officer who
sees and hears a witness has a superior coign of vantage in
assessing that witness's credibility"). And the weight that the
IJ assigned to the petitioner's various explanations, including
those regarding his use of false documentation, was reasonable.
Nothing about the IJ's assessments throws shade on her adverse
credibility determination. See Mashilingi, 16 F.4th at 978; see
also Jianli Chen v. Holder, 703 F.3d 17, 26 (1st Cir. 2012).
To be sure, the petitioner argues that some of the
inconsistencies relied upon by the IJ were immaterial. That
argument does not gain him any traction: the IJ specifically
identified a number of inconsistencies and instances of
contradictory testimony, which cumulatively persuaded her of the
petitioner's lack of credibility. These included varying accounts
regarding either the petitioner or a shop owner being approached
by men, armed or not, and either being interrogated about the
petitioner's whereabouts or being told to accompany the men. The
inconsistencies were pervasive and included the petitioner's
divergent versions of basic facts, such as the number of times
that he had entered the United States in the past.
Even if we credit the petitioner's claim that the
inconsistencies that the IJ identified did not go to the heart of
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the matter, the pervasiveness of the petitioner's inconsistencies
could fairly lead a reasonable factfinder to conclude that the
petitioner was an unreliable witness. Mashilingi, 16 F.4th at
978. Consequently, we conclude that the IJ's adverse credibility
determination is supported by substantial evidence on the record
as a whole. It follows, then, that the agency's denial of the
petitioner's asylum claim is unimpugnable.
III
We next address the BIA's gloss that, even if the
petitioner's asylum request did not fail for lack of credibility,
he had not demonstrated either past persecution or a well-founded
fear of future persecution. The petitioner contends that the armed
men's multiple threats rose to the level of past persecution based
on his status as a former bodyguard and/or his affiliation with a
particular political party. In a similar vein, the petitioner
contends that he proved a well-founded fear of future persecution
based on these threats and the violent political climate that
currently grips Guatemala.
These contentions are futile. The record contains ample
support for the BIA's holding: the petitioner's testimony simply
did not furnish sufficient evidence to establish past persecution
within the meaning of our precedents. Even were we to leave to
one side the adverse credibility determination, the BIA
supportably found that the petitioner's evidence, taken at face
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value, failed to establish that the petitioner was eligible for
asylum based either on his political opinion or membership in the
social group of "former bodyguards." After all, the petitioner
had failed to ascribe any motivation for the men's inquiries.
So, too, the BIA supportably found that the vague,
third-party threats of the unidentified men did not rise to the
level of past persecution. See Ang v. Gonzales, 430 F.3d 50, 56
(1st Cir. 2005). Nor did the petitioner show an objectively
reasonable basis for a well-founded fear of future persecution.
See Rivera-Coca, 844 F.3d at 380; Palma-Mazariegos v. Gonzales,
428 F.3d 30, 35 (1st Cir. 2005). Finally, as the BIA explained,
the petitioner did not meaningfully identify any continuing threat
of harm against him, let alone against him on account of his
political party affiliation or former work as a bodyguard.
IV
We need go no further. We hold that the BIA's denial of
the petitioner's claim for asylum must stand. We also hold that
the petitioner's counterpart claim for withholding of removal
fails. See Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009).
And, finally, we note that apart from country conditions reports,
the petitioner did not present any evidence that, if repatriated,
he would face torture with the consent or acquiescence of the
Guatemalan government. Thus, the BIA's rejection of the
petitioner's CAT claim must also stand. See Mendez-Barrera v.
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Holder, 602 F.3d 21, 27-28 (1st Cir. 2010). The petition for
judicial review is therefore
Denied.
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