Homero Martinez-Zavala v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOMERO MARTINEZ-ZAVALA, No. 16-73870
Petitioner, Agency No. A094-774-152
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 16, 2022**
Pasadena, California
Before: LEE and BRESS, Circuit Judges, and FITZWATER,*** District Judge.
Homero Martinez-Zavala, a citizen of Honduras, petitions for review of a
Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an
*
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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
Immigration Judge’s (“IJ”) order denying his applications for withholding of
removal and relief under the Convention Against Torture (“CAT”). We review for
substantial evidence and may grant relief only if the facts compel a contrary
conclusion. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition.
1. Substantial evidence supports the denial of withholding of removal
based on the IJ’s adverse credibility determination. To support an adverse credibility
finding, “the [agency] must have a legitimate articulable basis to question the
petitioner’s credibility, and must offer a specific, cogent reason for any stated
disbelief.” Martinez v. Holder, 557 F.3d 1059, 1060 (9th Cir. 2009) (quotations
omitted). “There is no bright-line rule under which some number of inconsistencies
requires sustaining or rejecting an adverse credibility determination.” Alam v.
Garland, 11 F.4th 1133, 1137 (9th Cir. 2021). Here, the IJ and BIA identified two
critical inconsistencies in Martinez-Zavala’s account, which are based on substantial
evidence.
First, the BIA found it implausible that Martinez-Zavala would fail to mention
until his in-court testimony that “a well-known high ranking police officer
personally made a direct threat against his daughter’s life right in front of him.” The
BIA could reasonably conclude that an omission of this magnitude bore on Martinez-
Zavala’s credibility. The record also reflects that the asylum officer asked Martinez-
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Zavala various questions to which this information was responsive. The BIA was
thus justified in concluding that Martinez-Zavala had failed to provide a satisfactory
explanation for this critical omission. See Kin v. Holder, 595 F.3d 1050, 1057 (9th
Cir. 2010) (holding that an omission of material details “constitute[d] substantial
evidence to support the BIA’s adverse credibility determinations”); see also Silva-
Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016) (holding that “an adverse
credibility determination may be supported by omissions that are not ‘details,’ but
new allegations that tell a ‘much different—and more compelling—story of
persecution than [the] initial application.’”) (quotations omitted).
Second, the BIA found petitioner’s reasonable fear interview inconsistent with
his later declaration stating that his business was burned down in 2012. Petitioner
concedes that he did not discuss this incident during his asylum interview, despite
the asylum officer’s asking questions that could have prompted the disclosure of this
information. The BIA could reasonably conclude that Martinez-Zavala failed to
offer a credible explanation for not mentioning this alleged incident earlier. See Kin,
595 F.3d at 1057.
Based on these discrepancies, the agency reasonably concluded that Martinez-
Zavala was not credible and had not met his burden of proof for his withholding of
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removal claim.1
2. Substantial evidence also supports the denial of CAT relief. Martinez-
Zavala has not demonstrated that he “will more likely than not be tortured with the
consent or acquiescence of a public official if removed to [his] native country.”
Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Aside from
testimony that is not credible, Martinez-Zavala points to no other evidence showing
he will likely be tortured in Honduras.
PETITION DENIED.
1
The BIA also concluded that Martinez-Zavala testified inconsistently about
whether the police were extorting him. The record less clearly supports this
conclusion. But the remaining grounds for the BIA’s decision are sufficient to
sustain the adverse credibility finding. Alam, 11 F.4th at 1137 (instructing that in
reviewing an adverse credibility determination that is partially supported in the
record we must “look to the totality of the circumstances and all relevant factors”).
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