Gutierrez-De Diaz v. Garland ( 2022 )


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  • Case: 21-60291     Document: 00516419686         Page: 1     Date Filed: 08/04/2022
    United States Court of Appeals
    for the Fifth Circuit                        United States Court of Appeals
    Fifth Circuit
    FILED
    August 4, 2022
    No. 21-60291
    Lyle W. Cayce
    Summary Calendar                       Clerk
    Ana Marilyn Gutierrez-De Diaz; Chelsea Marilyn Diaz-
    Gutierrez,
    Petitioners,
    versus
    Merrick Garland, U.S. Attorney General,
    Respondent.
    Petition for Review of an Order of the
    Board of Immigration Appeals
    Agency No. A208 685 125
    Agency No. A208 685 126
    Before Wiener, Elrod, and Engelhardt, Circuit Judges.
    Per Curiam:*
    Ana Marilyn Gutierrez-De Diaz is a native and citizen of El Salvador.
    On behalf of herself and her daughter, Chelsea Marilyn Diaz-Gutierrez, she
    petitions for review of an order by the Board of Immigration Appeals (BIA)
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5th Circuit Rule 47.5.4.
    Case: 21-60291       Document: 00516419686         Page: 2   Date Filed: 08/04/2022
    No. 21-60291
    dismissing her appeal from the denial by an immigration judge (IJ) of her
    application for asylum, withholding of removal, and relief under the
    Convention Against Torture (CAT).
    After the filing of Gutierrez-De Diaz’s appellate brief, we granted the
    respondent’s unopposed motion to remand the case to the BIA for a ruling
    on Gutierrez-De Diaz’s motion to file a late brief. On remand the BIA denied
    Gutierrez-De Diaz’s motion due to her lack of explanation for the four-
    month delay in filing the motion. Gutierrez-De Diaz’s challenge to the BIA’s
    rejection of her brief fails as she does not show that the BIA abused its
    discretion in enforcing its procedural rules. See 
    8 C.F.R. § 1003.3
    (c)(2).
    Despite Gutierrez-De Diaz’s assertions to the contrary, the IJ’s
    adverse credibility determination, which the BIA adopted and affirmed, was
    supported by specific reasons based on the evidence presented and was,
    under the totality of the circumstances, substantially reasonable. See Singh v.
    Sessions, 
    880 F.3d 220
    , 225-26 (5th Cir. 2018).
    Although     Gutierrez-De    Diaz    offers   explanations    for     the
    inconsistences, neither the IJ nor the BIA was required to accept them. See
    Morales v. Sessions, 
    860 F.3d 812
    , 817 (5th Cir. 2017). Because the adverse
    credibility determination was supported by “specific and cogent reasons,”
    the record does not compel a finding that Gutierrez-De Diaz was credible or
    that no reasonable factfinder could have made an adverse credibility finding.
    Zhang v. Gonzales, 
    432 F.3d 339
    , 344 (5th Cir. 2005). In addition, her
    argument that the BIA and the IJ erred in not considering her untimely
    supplemental evidence is unavailing. See 
    8 C.F.R. § 1003.31
    (h); Matter of
    Santos, 
    28 I. & N. Dec. 552
    , 561 n.4 (BIA 2022).
    The adverse credibility finding is dispositive of Gutierrez-De Diaz’s
    claims for asylum and withholding of removal. See Arulnanthy v. Garland, 
    17 F.4th 586
    , 596-97 (5th Cir. 2021); Dayo v. Holder, 
    687 F.3d 653
    , 658-59 (5th
    2
    Case: 21-60291     Document: 00516419686          Page: 3   Date Filed: 08/04/2022
    No. 21-60291
    Cir. 2012).   Because Gutierrez-De Diaz does not identify any timely
    submitted nontestimonial evidence that could independently establish her
    entitlement to CAT relief, the adverse credibility determination also defeats
    her CAT claim. See Arulnanthy, 17 F.4th at 597-98; Ghotra v. Whitaker, 
    912 F.3d 284
    , 290 & n.2 (5th Cir. 2019).
    Accordingly, Gutierrez-De Diaz’s petition for review is DENIED.
    3