Gladis Esteban-Oliva v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLADIS FLORINDA ESTEBAN-OLIVA, No. 20-73503
Petitioner, Agency No. A205-641-189
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
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.
Gladis Florinda Esteban-Oliva, a native and citizen of Guatemala, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
her appeal from an immigration judge’s (“IJ’s”) decision denying her applications
for asylum, withholding of removal, and protection under the Convention Against
*
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).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de
novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). 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 inconsistencies between Esteban-Oliva’s testimony, Form I-589, and
documentary evidence regarding the length of time she was kidnapped and held,
the nature of her relationship with her kidnapper, and who brought her to receive
treatment for her burns. See id., at 1048 (adverse credibility finding reasonable
under the totality of the circumstances); see also Rodriguez-Ramirez v. Garland,
11 F.4th 1091, 1093 (9th Cir. 2021) (agency can afford substantial weight to
inconsistencies that bear directly on petitioner’s claim of persecution). Esteban-
Oliva’s explanations do not compel a contrary conclusion. See Lata, 204 F.3d at
1245. Thus, in the absence of credible testimony, Esteban-Oliva’s asylum and
withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156
(9th Cir. 2003).
Because Esteban-Oliva does not challenge the agency’s CAT determination,
we do not address it. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th
2 20-73503
Cir. 2013).
Esteban-Oliva’s claim that the BIA violated due process by streamlining its
decision fails because she has not shown error. See Falcon Carriche v. Ashcroft,
350 F.3d 845, 850-52 (9th Cir. 2003) (BIA’s streamlined decision did not violate
due process); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error is
required to prevail on a due process claim).
To the extent Esteban-Oliva contends the IJ violated her right to due process
and that she is eligible for voluntary departure, we lack jurisdiction to review these
claims because she did not exhaust 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); see also 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 in part; DISMISSED in part.
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