Doran Brewster v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DORAN DWANY BREWSTER, AKA No. 18-71801
Brewster Doran,
Agency No. A070-207-195
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Doran Dwany Brewster (“Brewster”), a native and citizen of Belize,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from the immigration judge’s (“IJ”) denial of his application
for withholding of removal and relief under the Convention Against Torture
*
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).
(“CAT”). We review the agency’s adverse credibility finding and denials of
withholding of removal and CAT protection for substantial evidence. Wang v.
Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). Under this deferential standard, the
BIA’s findings are conclusive unless any reasonable adjudicator would be
compelled to conclude the contrary. Villavicencio v. Sessions, 904 F.3d 658, 663-
64 (9th Cir. 2018) (quotation marks omitted). As the parties are familiar with the
facts, we do not recount them here. We have jurisdiction under 8 U.S.C. § 1252and deny the petition for review.
1. Credibility. Substantial evidence supports the BIA’s affirmance of the
IJ’s adverse credibility finding. The BIA noted a number of inconsistencies
between Brewster’s hearing testimony, credible fear interview, and documentary
evidence. Given that some of these discrepancies are at the heart of his alleged
past and future persecution, the record does not compel the conclusion that, under
the totality of the circumstances, Brewster provided credible testimony. See Iman
v. Barr, 972 F.3d 1058, 1067 (9th Cir. 2020) (considering “the totality of the
circumstances and all relevant factors” when reviewing an adverse credibility
finding) (citations omitted).
For example, Brewster stated that he feared persecution for being the cousin
of a deceased gang leader, but he was unable to remember the true name of this
purported cousin, Mayher Singh, during his reasonable fear interview. Further, the
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local news reports that Brewster submitted referred to his cousin by different
nicknames than Brewster and his witness used at the hearing. These reports also
seem to contradict Brewster’s claim that his purported cousin was a gang leader or
member at all. These inconsistencies are “not merely trivial” but “of great
weight,” Shrestha v. Holder, 590 F.3d 1034, 1046-47 (9th Cir. 2010), because they
undermine Brewster’s account of past harm and fear of future persecution due to
this relationship. Therefore, we need not discuss further discrepancies noted by the
agency. Substantial evidence supports the BIA’s decision upholding the IJ’s
adverse credibility finding.
2. Withholding. To qualify for withholding of removal, Brewster must show
that it is “more likely than not” that he would be persecuted based on a protected
ground if removed to Belize. 8 C.F.R. § 1208.16(b)(2); see also Vasquez-
Rodriguez v. Garland, 7 F.4th 888, 892 (9th Cir. 2021) (quotation marks omitted).
Unable to rely on his own testimony due to the IJ’s undisturbed adverse credibility
finding, Brewster failed to show—with the remaining testimony and evidence in
the record—past persecution or a likelihood of future persecution based on either
his alleged informing on a crime or supposed relation to Mayher Singh. Therefore,
substantial evidence supports the BIA’s denial of withholding of removal based on
these grounds.
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The BIA separately considered Brewster’s claim that he faced a risk of
persecution based on 1) his status as a criminal returnee and 2) his (non-gang-
related) visible tattoos. Without any credible evidence of past persecution, the BIA
affirmed the IJ’s finding that Brewster failed to demonstrate a clear probability of
harm rising to the level of persecution. The record does not compel a contrary
conclusion.
3. Convention Against Torture. “To be eligible for relief under CAT, an
applicant bears the burden of establishing 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).
Brewster’s CAT claim fails for the same reasons as his withholding claim:
he cannot rely on his non-credible testimony and his claims lacked sufficient
support from independent corroborating evidence. He neither established past
torture nor a future probability of torture by or with government acquiescence.
Therefore, substantial evidence supports the BIA’s finding that Brewster was not
entitled to protection under CAT.
PETITION DENIED
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