Fredy Valdez-Vasquez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDY ARMANDO VALDEZ-VASQUEZ, No. 15-73854
Petitioner, Agency No. A072-544-053
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2022**
Pasadena, California
Before: IKUTA, LEE, and FORREST, Circuit Judges.
Fredy Valdez-Vasquez (Valdez), a native and citizen of Guatemala, seeks
review of a decision by the Board of Immigration Appeals (BIA) affirming an
immigration judge’s (IJ) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). In his
*
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).
application, Valdez claimed he was targeted for recruitment and threatened by the
guerilla forces in Guatemala because of his service in the Guatemalan military. We
have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. See Shrestha v.
Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (applying substantial evidence review).
1. As an initial matter, Valdez did not address the agency’s credibility
determination or the agency’s determination that he failed to demonstrate
entitlement to CAT protection. This court reviews “only issues that are argued
specifically and distinctly in a party’s opening brief.” Christian Legal Soc’y Chapter
of Univ. of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir. 2010) (cleaned up); see also Fed.
R. App. P. 28(a)(6). Valdez’s cursory and conclusory references to the credibility
findings, and his inaccurate statement that the IJ did not analyze the merits of his
CAT claim, are not enough to raise the issues “specifically and distinctly” for the
court’s review. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will
not manufacture arguments for an appellant, and a bare assertion does not preserve
a claim.”). He has thus forfeited any challenges to those findings. In any event, the
agency’s conclusions were supported by substantial evidence.
2. The agency’s adverse credibility determination was supported by
substantial evidence.1 The BIA relied on three inconsistencies between Valdez’s
1
Because Valdez filed his claim for asylum before May 11, 2005, the Court must
apply the pre-REAL ID Act standards for adverse credibility findings. See Sinha v.
Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009). Under our pre-REAL ID Act
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testimony and his written materials: (i) contradicting his application and
supplemental declaration, Valdez testified to the IJ that he did not require an
ambulance or any other medical care after he was attacked by the guerillas; (ii)
contradicting again his supplemental declaration, Valdez testified that ex-guerilla
members did not threaten his family; and (iii) contradicting his application and
supplemental declaration, Valdez testified that he did not capture any guerillas while
in the military.
All three inconsistencies, which Valdez could not explain, go to the heart of
his claim because they either relate to the severity of his past injuries, see Desta v.
Ashcroft, 365 F.3d 741, 745 (9th Cir. 2004) (“[M]aterial inconsistencies in
petitioner’s testimony concerning the extent of his injuries . . . go to the heart of
petitioner’s claim.”), or to the basis for his fear of future harm, see de Leon-Barrios
v. INS, 116 F.3d 391, 393–94 (9th Cir. 1997) (upholding an adverse credibility
determination based on inconsistencies that “relate to the basis for [the petitioner’s]
alleged fear of persecution”). Substantial evidence in the record thus supports the
BIA’s bases for affirming the IJ’s adverse credibility determination.
Because no other evidence in the record besides Valdez’s discredited
standard, “[m]inor inconsistencies in the record that do not relate to the basis of an
applicant’s alleged fear of persecution, [do not] go to the heart of the asylum claim,
or [do not] reveal anything about an asylum applicant’s fear for his safety are
insufficient to support an adverse credibility finding.” Mendoza Manimbao v.
Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003).
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testimony independently established his eligibility, the BIA did not err in concluding
that Valdez failed to carry his burden of proof for the asylum claim. See Yali Wang
v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017). And because Valdez failed to
demonstrate eligibility for asylum, he necessarily failed to meet the more exacting
requirements for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153,
1156 (9th Cir. 2003).
3. Substantial evidence supports the denial of the CAT claim. While an
adverse credibility determination is not necessarily a death knell to CAT protection,
see Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001), when the petitioner’s
“testimony [is] found not credible . . . we would have to find that the [country
condition] reports alone compelled the conclusion that [the petitioner] is more likely
than not to be tortured,” Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir.
2006). Valdez does not point to anything in the country condition reports that would
compel that conclusion. See id. at 923 (stating that reports that confirm torture takes
place in a country do not compel the conclusion that the petitioner would be
tortured).
Furthermore, the IJ reasonably concluded that Valdez’s fear of torture was
speculative because the most he could say to justify it was that “perhaps” the
guerillas would still be interested in him because someone “could” remember him,
while also conceding that no one may remember him or have any interest in him at
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all. The BIA thus did not err in dismissing the application under CAT. See Xiao Fei
Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011) (denying petition for review of
a CAT claim based on speculative fear of torture).
PETITION DENIED.
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