Jimmy Carcamo-Pineda v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMY ALEXANDER CARCAMO- No. 19-71823
PINEDA,
Agency No. A208-283-352
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 7, 2020**
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and ZOUHARY,*** District Judge.
Jimmy Carcamo-Pineda (“Carcamo”), a native and citizen of Honduras,
petitions for review of a Board of Immigration Appeals (“BIA”) decision
*
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 Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
dismissing his appeal from an Immigration Judge’s (“IJ”) denial of his application
for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. The agency’s legal
conclusions are reviewed de novo. Santiago-Rodriguez v. Holder, 657 F.3d 820,
829 (9th Cir. 2011). We review the agency’s factual findings for substantial
evidence. Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir. 2009). Substantial
evidence review means that we must uphold a factual finding if it is “supported by
reasonable, substantial, and probative evidence in the record.” Melkonian v.
Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003) (citation omitted).
1. Carcamo first challenges the IJ’s adverse credibility determination.
Having reviewed the record, we conclude that the credibility finding was supported
by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Shrestha v.
Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (reviewing adverse credibility
determination under the substantial evidence standard). Carcamo presented a
series of changing timelines between his oral testimony, written asylum
application, credible fear interview, and supporting documentation. When
provided the opportunity to explain these discrepancies, Carcamo testified that he
had misinformed the asylum officer because he was afraid police in Honduras
would find out that he had spoken out against them. This explanation was
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unsatisfactory because Carcamo had testified that the Honduran police were
already well-aware of his investigation of them. Additionally, Carcamo’s assertion
that threats against his family prompted his flight to the United States was
undermined by his prior statements indicating that the threats were made years
earlier.
Thus, Carcamo’s explanations for the inconsistencies do not “‘compel[]’”
the conclusion that he testified credibly. See Parada v. Sessions, 902 F.3d 901,
908–09 (9th Cir. 2018) (citation omitted). The record evidence supports the IJ’s
decision to discredit Carcamo’s testimony.
2. Carcamo contends that the agency erred in finding that serious reasons
existed to believe he “committed a serious nonpolitical crime” in Honduras. See
Silva-Pereira v. Lynch, 827 F.3d 1176, 1188 (9th Cir. 2016) (describing the
serious-nonpolitical-crime bar) (quoting 8 U.S.C. §§ 1158(b)(2)(A)(iii) (asylum),
1231(b)(3)(B)(iii) (withholding of removal)).
The IJ noted that Carcamo fled to the United States three days after being
charged with organizing a kidnapping for ransom. Relying on the Honduran
prosecutor’s representation—and Carcamo’s partial concession—that Carcamo had
received incriminating phone calls from the kidnappers, the IJ did not plainly err in
finding that probable cause supported the accusations against Carcamo. See Go v.
Holder, 640 F.3d 1047, 1052 (9th Cir. 2011). Accordingly, substantial evidence
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supports the agency’s finding.
3. Carcamo also petitions for review of the agency’s denial of his claim for
deferral of removal under the CAT. Substantial evidence supports the agency’s
decision. Although Carcamo’s background documentation painted a troubling
picture of conditions in Honduras, he failed to present credible evidence that he
would face a particularized risk of torture if he returned to his native country.
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). And, even if we
assumed Carcamo testified credibly, the attacks he experienced did not rise to the
level of torture because Carcamo was never actually injured. 8 C.F.R. §
1208.18(a). That Carcamo will likely face prosecution in Honduras is of no import
because legitimate punishment for criminal wrongdoing does not constitute torture.
Lin v. Holder, 610 F.3d 1093, 1097 (9th Cir. 2010).
PETITION DENIED.
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