Eduardo Jesus-Martinez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO JESUS-MARTINEZ, AKA No. 19-73126
Eduardo Jesus Esteban-Domingo,
Agency No. A205-991-069
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 10, 2021**
Pasadena, California
Before: BYBEE and BRESS, Circuit Judges, and CARDONE,*** District Judge.
Petitioner Eduardo Jesus-Martinez, a native and citizen of Guatemala,
petitions for review of an order entered by the Board of Immigration Appeals
*
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).
***
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
(“BIA”) affirming an immigration judge’s (“IJ”) denial of his application for
asylum and withholding of removal under the Immigration and Nationality Act and
for protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review the agency’s adverse credibility
determination for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039–
40 (9th Cir. 2010). We deny the petition.
1. Substantial evidence supports the agency’s adverse credibility
determination. Petitioner testified inconsistently regarding his departure from
Guatemala and his arrest history. Those inconsistencies were not trivial, but rather
went to the heart of his claim. See id. at 1046–47; Zamanov v. Holder, 649 F.3d
969, 973 (9th Cir. 2011) (holding that petitioner’s past arrests “went to the core of
his alleged fear of political persecution”). And his explanations, including that he
“was nervous and . . . had forgotten certain facts, were unconvincing.” See
Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020) (internal quotation
marks omitted). Likewise, his explanation that he feared mistreatment by
immigration officials was not adequately raised before the IJ. Finally, the agency
properly relied on the Form I-213 as a source of impeachment because Petitioner
testified that he made the statements at issue. Even if he later retracted one of
those statements, “[w]here there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Rodriguez v.
2
Holder, 683 F.3d 1164, 1171 (9th Cir. 2012) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573–74 (1985)). Thus, Petitioner’s “inability to consistently
describe the underlying events that gave rise to his fear was an important factor
that could be relied upon by the IJ in making an adverse credibility determination.”
See Shrestha, 590 F.3d at 1047. And without credible testimony, the remaining
evidence in the record did not establish Petitioner’s eligibility for asylum or
withholding of removal. See Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir.
2017).
2. Substantial evidence also supports the agency’s denial of CAT
protection. Although an adverse credibility determination “does not necessarily
preclude eligibility for CAT relief,” such relief may be denied where, as here, the
claim is “based on the same statements that the BIA determined to be not credible
in the asylum context.” Id. (internal quotation marks and citations omitted).
Without Petitioner’s testimony, the country conditions reports and other evidence
in the record do not demonstrate that Petitioner “is likely to be tortured, rather
than persecuted,” see Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir. 2009), nor
that he “personally will face torture,” see Mukulumbutu v. Barr, 977 F.3d 924, 928
(9th Cir. 2020). Indeed, Petitioner does not dispute that similarly situated family
members have remained in Guatemala without being subjected to such harm. See
Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th Cir. 2008), abrogated on other
3
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
Thus, the agency could properly deny CAT protection.
The petition for review is DENIED.
4