Adrian Jimenez Dieges v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN JIMENEZ DIEGES, No. 20-72959
Petitioner, Agency No. A208-308-205
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Adrian Jimenez Dieges, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for withholding of removal
and relief under the Convention Against Torture (“CAT”). We have jurisdiction
*
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).
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, including claims of due process
violations due to ineffective assistance of counsel. 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 inconsistencies between Jimenez Dieges’s declaration and testimony as to
details of the alleged gas station robbery, specifically, whether the robbers had a
weapon with bullets, whether Jimenez Dieges arrived with cash, and what the
robbers demanded from him. See Shrestha, 590 F.3d. at 1048 (concluding adverse
credibility determination reasonable under “the totality of circumstances”).
Jimenez Dieges’s explanations do not compel a contrary conclusion. See Lata v.
INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Substantial evidence also supports the
agency’s determination that Jimenez Dieges did not present documentary evidence
that would otherwise establish his eligibility for relief. See Garcia v. Holder, 749
F.3d 785, 791 (9th Cir. 2014) (concluding applicant’s documentary evidence was
insufficient to rehabilitate his testimony). Thus, in the absence of credible
testimony, in this case, Jimenez Dieges’s withholding of removal claim fails. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
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Substantial evidence supports the agency’s denial of CAT relief because,
even if credible, Jimenez Dieges failed to show it is more likely than not he would
be tortured by or with the consent or acquiescence of the government if returned to
Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The BIA did not err in denying Jimenez Dieges’s ineffective assistance of
counsel claim where Jimenez Dieges failed to establish prejudice. See Rojas-
Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (“For [petitioner] to state a
valid claim of ineffective assistance of counsel, he must show prejudice.”).
Jimenez Dieges’s contentions that his right to due process was otherwise violated
also fail. See Lata, 204 F.3d at 1246 (requiring prejudice to prevail on a due
process claim).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
3 20-72959