Jaret Fuentes-De La Cruz v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JARET ITSEL FUENTES-DE LA CRUZ, No. 20-72783
Petitioner, Agency No. A208-786-885
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 8, 2021**
San Francisco, California
Before: HAWKINS and FRIEDLAND, Circuit Judges, and McSHANE,*** District
Judge.
Petitioner Jaret Itsel Fuentes-De La Cruz (“Petitioner”) seeks review of the
Board of Immigration Appeals’ (“BIA”) order upholding the Immigration Judge’s
*
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 Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
(“IJ”) denial of her claim for withholding of removal and relief under the Convention
Against Torture (“CAT”). Where, as here, the BIA adopts and affirms the IJ’s order
pursuant to Matter of Burbano, we review the IJ’s order as if it were the
BIA’s. Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011).
After setting forth the general standard of review for adverse credibility
determinations, Petitioner’s brief is devoid of any citation to case law or statute to
support her argument and has effectively waived the credibility issue. Fed. R. App.
P. 28 (a)(8)(A). However, even considering the merits of her appeal, substantial
evidence supports the agency’s adverse credibility determination. Zamanov v.
Holder, 649 F.3d 969, 973 (9th Cir. 2011) (“An adverse credibility determination is
reviewed under the substantial evidence standard.”).
The IJ permissibly relied on Petitioner’s failure to assert any claim regarding
fear of harm due to her sexuality in her first asylum application in November 2016,
which alleged a fear of generalized crime and violence and that she was a target in
Mexico because she had lived in the United States and was perceived as having
money. Likewise, Petitioner failed to make any mention of this ground in her
December 2017 reasonable fear interview, where she said her fear of returning to
Mexico stemmed from membership in a social group of “unaccompanied women
with tattoos who are perceived as being from the United States and having money
and means and who cannot defend themselves against predatory men.” Petitioner
2
did not assert her claim of fear due to sexual orientation until a second reasonable
fear interview in January 2018. This was not a minor omission of details supporting
a claim, but an entirely new claim of persecution. See Iman v. Barr, 972 F.3d 1058,
1068‒69 (9th Cir 2020) (“[T]he principal danger we associate with omissions are
last-minute attempts to use new allegations to artificially enhance claims of
persecution.”); Silva-Pereira v. Lynch, 827 F.3d 1176, 1186 (9th Cir. 2016)
(omissions not trivial but pivotal events crucial to claim of persecution). Petitioner’s
explanations were not “persuasive enough to compel the conclusion that the
omissions were immaterial.” Silva-Pereira, 827 F.3d at 1186 (quoting Kin v.
Holder, 595 F.3d 1050, 1057 (9th Cir. 2010)). In addition, the IJ reasonably
questioned Petitioner’s credibility for having married a male while held in custody,
apparently attempting to receive an immigration benefit through a sham marriage.1
PETITION DENIED.
1
Petitioner’s Motions for a Stay of Removal [Dkt. Entries No. 1 and 5] are denied
as moot.
3