Louidet Sistanis v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUIDET SISTANIS; CHRISTELA JEAN, No. 20-72744
Petitioners, Agency Nos. A209-871-562
A209-867-749
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Louidet Sistanis and Christela Jean, natives and citizens of Haiti, petition pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their
appeal from an immigration judge’s (“IJ”) decision denying their applications for
asylum and voluntary departure, and Sistanis’s applications for withholding of
*
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).
removal and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 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 review de novo questions of law. Mohammed v. Gonzales,
400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on an inconsistency between Sistanis’s border interview and testimony
regarding his reasons for fleeing Haiti and an omission regarding threats he
received in Haiti. See Shrestha, 590 F.3d at 1048 (adverse credibility finding
reasonable under the totality of the circumstances); see also Singh v. Gonzales, 403
F.3d 1081, 1089 (9th Cir. 2005) (indicia of reliability for interview with
immigration officer); see also Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th
Cir. 2016) (“[A]n adverse credibility determination may be supported by omissions
that are not details, but new allegations that tell a much different—and more
compelling—story of persecution than [the] initial application[.]” (internal
quotation marks and citation omitted)). Sistanis’s explanations do not compel a
contrary conclusion. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021) (IJ not
compelled to accept explanations for discrepancies). Thus, in the absence of
credible testimony, petitioners’ asylum claim and Sistanis’s withholding of
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removal claim fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Substantial evidence also supports the agency’s denial of Sistanis’s CAT
claim because it was based on the same testimony found not credible, and the
record does not compel the conclusion that it is more likely than not he would be
tortured by or with the consent or acquiescence of the government if returned to
Haiti. See id. at 1157.
We do not address Sistanis’s contentions that, assuming his testimony was
credible, he established eligibility for asylum and withholding of removal because
the BIA did not deny relief on these grounds. See Santiago-Rodriguez v. Holder,
657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we
consider only the grounds relied upon by that agency.” (citation and internal
quotation marks omitted)).
Petitioners forfeited any challenge to the denial of voluntary departure. See
Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th Cir. 2013); see also
Posos-Sanchez v. Garland, 3 F.4th 1176, 1185 (9th Cir. 2021) (statutorily deficient
notice to appear does not trigger the voluntary departure stop-time provision);
Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019) (new claim based on
change of law may be raised in a motion to reconsider at the agency).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.
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