Marcos Cardenas Lopez v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
SEP 13 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS CARDENAS LOPEZ, No. 20-72928
Petitioner, Agency No. A206-681-356
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 31, 2021
San Francisco, California
Before: RAWLINSON and BYBEE, Circuit Judges, and CARDONE,** District
Judge.
Petitioner Marcos Cardenas Lopez, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’s (BIA) decision affirming the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
Immigration Judge’s (IJ) denial of his application for withholding of removal and
protection under the Convention Against Torture (CAT). We deny the petition.
We review “denials of asylum, withholding of removal, and CAT relief for
substantial evidence and will uphold a denial supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Ling Huang v.
Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (citations and quotations omitted).
“Where, as here, the BIA cites Burbano and also provides its own review of
the evidence and law, we review both the IJ’s and the BIA’s decisions.” Aguilar
Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020) (quoting Ali v. Holder, 637 F.3d
1025, 1028 (9th Cir. 2011)).
1. This case primarily turns on whether Cardenas Lopez’s testimony
before the IJ was credible. Cardenas Lopez is Triqui, an indigenous people native
to Oaxaca, and he testified he fears returning to Mexico because he anticipates
persecution at the hands of the Movimiento de Unificación y Lucha Triqui
(MULT), a Triqui paramilitary organization that has killed or harmed several
members of his family in Mexico due to his family’s opposition to MULT. The
BIA affirmed the IJ’s determination that this testimony was not credible because it
was inconsistent with Cardenas Lopez’s Form I-867A. Cardenas Lopez attempted
to enter the United States in June 2014, but was apprehended by Customs and
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Border Protection (CBP). In his Form I-867A—which is a record of a CBP
officer’s interview with Cardenas Lopez that Cardenas Lopez initialed on each
page and signed—Cardenas Lopez states that his reason for coming to the US is
that he “wanted to come work to [sic] the US” and “to seek employment.”
We hold that the IJ’s credibility determination was supported by substantial
evidence. Cardenas Lopez was confronted with the inconsistency on cross-
examination and claimed that the officer stated “they all say that” and recorded
incorrect information. The IJ acknowledged this explanation, but rejected it. “If
the IJ reasonably rejects the alien’s explanation, . . . the IJ may properly rely on the
inconsistency as support for an adverse credibility determination.” Rizk v. Holder,
629 F.3d 1083, 1088 (9th Cir. 2011). The IJ’s rejection of the explanation was
reasonable because the Form I-867A contained “sufficient indicia of
reliability”—the interview was conducted under oath, the notes included the
questions asked, and they were transcribed by an interpreter or an officer that
speaks Spanish. See Mukulumbutu v. Barr, 977 F.3d 924, 926 (9th Cir. 2020).
2. In addition, Cardenas Lopez’s ability to reasonably relocate forecloses
his withholding of removal claim. An applicant cannot establish eligibility for
withholding of removal if the applicant “could avoid a future threat to his or her
life or freedom by relocating to another part of the proposed country of removal
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and, under all the circumstances, it would be reasonable to expect the applicant to
do so.” 8 C.F.R. § 1208.16(b)(2). The BIA found that even if Cardenas Lopez’s
lack of credibility is disregarded, his withholding of removal claim would still be
denied because the IJ found that he could reasonably relocate to another part of
Mexico. Cardenas Lopez has lived in at least two different Mexican states, where
he did not experience threats or harm from MULT for several years. See Gomes v.
Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005). Furthermore, there is substantial
record evidence to support the IJ’s inferences that Cardenas Lopez’s siblings live
in other Mexican states without being targeted by MULT and that MULT’s
influence is limited to only certain regions in Mexico. Based on this evidence, the
BIA did not err in affirming the denial of withholding of removal.
3. An applicant is eligible for protection under CAT if he can prove that
it is more likely than not that he would be tortured if removed to his country of
origin. See Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010). The BIA
agreed with the IJ that Cardenas Lopez failed to meet his burden under CAT
because the totality of the record did not establish that he is more likely than not to
be tortured upon his return to Mexico. Absent Cardenas Lopez’s testimony, the
record only establishes a generalized risk of harm to Triquis and members of the
Cardenas family. But this evidence does not compel the conclusion that Cardenas
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Lopez would more likely than not be tortured. See Duran-Rodriguez v. Barr, 918
F.3d 1025, 1028 (9th Cir. 2019). Furthermore, the evidence demonstrates that
Cardenas Lopez could reduce his risk of torture by relocating to another part of
Mexico and that it would be reasonable for him to do so. Tamang, 598 F.3d at
1095. Thus, the BIA’s conclusion was supported by substantial evidence, and it
did not err in affirming the denial of CAT relief.
4. Finally, Cardenas Lopez argues that the BIA erred in denying his
motion to remand for the IJ to consider two reports that he submitted. We may not
review this evidence because the BIA declined to consider it and the BIA did not
abuse its discretion in doing so. See Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir.
1996); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).
PETITION DENIED.
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