Alex Monzon Fuentes v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX ANATAN FUENTES MONZON, No. 21-70541
Petitioner, Agency No. A209-865-435
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 21, 2023**
Pasadena, California
Before: S.R. THOMAS, NGUYEN, and FORREST, Circuit Judges.
Petitioner Alex Anatan Fuentes Monzon (Fuentes),1 a citizen and national of
Guatemala, seeks review of the 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).
1
Although the agency referred to the Petitioner as Alex Anatan Monzon
Fuentes, his birth certificate and other documents indicate that his last name is
Fuentes Monzon.
denying his claims for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition.
1. Adverse Credibility Determination. Substantial evidence supports the
agency’s adverse credibility determination where there were several inconsistencies
among Fuentes’s hearing testimony, credible fear interview, and multiple
declarations in support of his asylum application. For example, Fuentes failed to
mention his preaching activities or that gang members threatened him in his credible
fear interview, his asylum application, and his first few declarations. Additionally,
Fuentes’s hearing testimony about his persecutors’ motivation was inconsistent with
his earlier written statements and credible fear interview. See, e.g., Iman v. Barr, 972
F.3d 1058, 1068 (9th Cir. 2020) (“[O]missions are probative of credibility to the
extent that later disclosures, if credited, would bolster an earlier, and typically
weaker, asylum application.”); Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir.
2008) (concluding that petitioner’s failure to “mention his numerous political
speeches in his initial application for asylum and interview with the asylum officer”
provided substantial evidence for the agency’s adverse credibility determination);
see also Singh v. Holder, 638 F.3d 1264, 1270 (9th Cir. 2011) (“If the person cannot
tell substantially the same story twice in substantially the same way, that suggests a
likelihood that the story is false.”). These discrepancies were significant because
2
Fuentes’s religious conduct was central to his evolving claim. See Shrestha v.
Holder, 590 F.3d 1034, 1044, 1047 (9th Cir. 2010) (noting that “when an
inconsistency is at the heart of the claim it doubtless is of great weight”). And
Fuentes failed to provide a compelling explanation when confronted with these
inconsistencies. See id. Collectively, these discrepancies constitute substantial
evidence to support the agency’s adverse credibility determination.
The agency’s adverse credibility finding supports its denial of asylum,
withholding of removal, and CAT protection because “[w]ithout [Fuentes]’s
testimony, the remaining evidence in the record is insufficient to carry h[is] burden
of establishing eligibility for relief.” Wang v. Sessions, 861 F.3d 1003, 1009 (9th
Cir. 2017); see also Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015) (explaining
that the agency may rely on adverse credibility determination in deciding both CAT
and asylum claims where claims are based on same noncredible statements),
overruled on other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en
banc). Fuentes concedes that “without [his] testimony, [he] had no evidence to
support his claims.”
2. Due Process Claim. Fuentes argues that he was denied a full and fair
hearing and an impartial decisionmaker because the immigration judge (IJ) was
biased against him. We deny this due process claim because Fuentes failed to
exhaust it before the BIA. See Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002)
3
(“The exhaustion requirement applies to claims that an alien was denied a full and
fair hearing.” (internal quotation marks and citation omitted)). In his appeal to the
BIA, Fuentes argued only that the IJ’s credibility determination was erroneous and
that he was denied an opportunity to provide corroborating evidence of his
evangelical preaching in the gang neighborhood.2 The Supreme Court has clarified
that exhaustion in this context is not jurisdictional and therefore can be forfeited. See
Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1116 (2023) (construing exhaustion as
a claims-processing rule). The Government did not forfeit exhaustion—it
specifically argues that Fuentes failed to raise this bias challenge to the BIA. See
Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019) (explaining that a court
must enforce a claims-processing rule “if a party ‘properly raise[s]’ it” (alteration in
original)).
PETITION DENIED.
2
The BIA rejected Fuentes’s argument that the IJ failed to provide him an
opportunity to corroborate his claims. Fuentes does not challenge this holding on
appeal, so we do not address it. See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th
Cir. 2003) (“[W]e will not ordinarily consider matters on appeal that are not
specifically and distinctly argued in appellant’s opening brief.” (internal quotation
marks and citation omitted)).
4