Jose Barba-Aguilar v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JUAN BARBA-AGUILAR, No. 19-70978
Petitioner, Agency No. A208-967-468
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Jose Juan Barba-Aguilar, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings, applying the standards governing adverse credibility
determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-
40 (9th Cir. 2010). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on Barba-Aguilar’s omission from his declaration of his store ownership,
extortion demands, and threats; and an inconsistency between Barba-Aguilar’s
testimony and his declaration as to his reasons for entering the United States and
fearing return to Mexico. See id. at 1048 (adverse credibility determination
reasonable under “the totality of circumstances”); see also Silva-Pereira v. Lynch,
827 F.3d 1176, 1185-86 (9th Cir. 2016) (prior omission supported adverse
credibility determination where new allegations presented a more compelling claim
of persecution). Barba-Aguilar’s explanations do not compel a contrary
conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Thus, in the
absence of credible testimony, in this case, Barba-Aguilar’s asylum and
withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156
(9th Cir. 2003).
Substantial evidence also supports the agency’s denial of Barba-Aguilar’s
CAT claim because it was based on the same evidence found not credible, and he
does not point to any other record evidence that compels the conclusion that it is
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more likely than not he would be tortured by or with the consent or acquiescence
of the government if returned to Mexico. See Shrestha, 590 F.3d at 1048-49.
We lack jurisdiction to consider the due process claims that Barba-Aguilar
raises for the first time in his opening brief because he did not raise them before
the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court
lacks jurisdiction to review claims not presented to the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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