Marwin Corado Tovar v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARWIN CORADO TOVAR, No. 21-70671
Petitioner, Agency No. A206-365-589
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2023**
Pasadena, California
Before: BEA, M. SMITH, and VANDYKE, Circuit Judges.
Petitioner Marwin Corado Tovar, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’s (“BIA”) order which affirmed,
without opinion, an immigration judge’s (“IJ”) denial of his applications for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252. “Where, as here, the BIA
summarily adopts the IJ’s decision without opinion pursuant to 8 C.F.R.
§ 1003.1(e)(4), we ‘review the IJ’s decision as if it were the BIA’s decision.’”
Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir. 2023) (quoting Ren v. Holder, 648
F.3d 1079, 1083 (9th Cir. 2011)). We review an adverse credibility finding under
the substantial evidence standard, Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.
2010), and must uphold it unless the evidence compels a contrary result, Tekle v.
Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). We deny the petition.1
Substantial evidence supports the IJ’s finding that Petitioner was not a
credible witness. The IJ highlighted “specific and cogent reasons” for concluding
that Petitioner was incredible. Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010).
The IJ first determined that Petitioner’s in-court testimony as to the extent of
the injuries he suffered when he was assertedly beaten in El Salvador by members
of the 18th Street Gang contradicted (1) his prior statement to the asylum officer
who conducted his credible fear interview, (2) his own handwritten declaration, and
(3) his asylum application. These significant inconsistencies bore on Petitioner’s
veracity. See Shrestha, 590 F.3d at 1043–44. The IJ also observed that Petitioner
attempted to fabricate an explanation for these discrepancies based on attorney error,
which fabrication was exposed on cross-examination. See Shrestha, 590 F.3d at1
We deny Petitioner’s motion for a stay of removal (Docket Entry No. 1).
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1044 (“[T]he petitioner’s explanation for the inconsistency, if any, should be
considered in weighing credibility.”). “[W]hen inconsistencies that weaken a claim
for asylum are accompanied by other indications of dishonesty-such as a pattern of
clear and pervasive inconsistency or contradiction-an adverse credibility
determination may be supported by substantial evidence.” Kaur v. Gonzales, 418
F.3d 1061, 1067 (9th Cir. 2005). Next, the IJ concluded that Petitioner tried to
minimize his criminal history in the United States, viz., charges for rape by force or
fear, false imprisonment, and assault with a deadly weapon. Lastly, the IJ properly
considered Petitioner’s emotionlessness when he testified about his brother’s
murder. See Manes v. Sessions, 875 F.3d 1261, 1263–64 (9th Cir. 2017) (per
curiam). Based on the IJ’s adverse credibility finding, Petitioner failed to carry his
burden of proving eligibility for asylum and withholding of removal. See Ling
Huang v. Holder, 744 F.3d 1149, 1156 (9th Cir. 2014).
The IJ properly determined that, because Petitioner’s claim for CAT relief was
based on the same factual predicate as his asylum and withholding of removal
claims, the adverse credibility finding supported denial of all claims. See Yali Wang
v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017).
DENIED.
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