Roberto Silva-Pereira v. Loretta E. Lynch ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO CARLOS SILVA-PEREIRA, No. 14-70276
Petitioner,
Agency No.
v. A095-743-748
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 4, 2016
San Francisco, California
Filed July 7, 2016
Before: J. Clifford Wallace and Diarmuid F. O’Scannlain,
Circuit Judges and Marilyn L. Huff,* District Judge.
Opinion by Judge O’Scannlain
*
The Honorable Marilyn L. Huff, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2 SILVA-PEREIRA V. LYNCH
SUMMARY**
Immigration
The panel denied a petition for review brought by Roberto
Carlos Silva-Pereira, a former Salvadoran professional soccer
player and deputy to a Salvadoran congressman, holding that
he was statutorily barred from asylum and withholding of
removal relief under the serious nonpolitical crime bar, and
did not qualify for protection under the Convention Against
Torture.
The panel held that the evidence did not compel the
conclusion that Silva was credible. The panel further held
that substantial evidence supported the Board of Immigration
Appeals’ determination that Silva was ineligible for asylum
and withholding of removal under the serious nonpolitical
crime bar, because there was probable cause to believe that
Silva was complicit in the murders in Guatemala of three
Salvadoran representatives to the Central American
Parliament.
The panel held that it need not decide whether the law of
the case doctrine applies to administrative proceedings in the
immigration context, because even assuming it does, neither
the immigration judge nor the Board explicitly decided the
serious nonpolitical crime issue before the final round of
decisions.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SILVA-PEREIRA V. LYNCH 3
The panel affirmed the Board’s denial of protection under
the Convention Against Torture, because Silva never asserted
any fear of torture in Nicaragua, the country he designated for
removal, and to which the IJ ultimately ordered removal.
The panel declined to consider the Board’s determination
that Silva failed to demonstrate a likelihood of torture in El
Salvador, the alternate country of removal, because such a
challenge does not relate to “the proposed country of
removal,” as required by 8 C.F.R. § 1208.16(c)(2).
COUNSEL
Guatam Jagannath (argued), and Emily Abraham, Social
Justice Collaborative, Oakland, California, for Petitioner.
Timothy G. Hayes (argued), Trial Attorney; Cindy S. Ferrier,
Assistant Director; Benjamin C. Mizer, Acting Assistant
Attorney General, Civil Division; Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., for Respondent.
4 SILVA-PEREIRA V. LYNCH
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether substantial evidence supports the
determination of the Board of Immigration Appeals that this
petitioner is ineligible for asylum and withholding of removal
to Nicaragua and whether he qualifies for deferral of removal
under the Convention Against Torture.
I
A
Roberto Carlos Silva-Pereira is a Salvadoran citizen and
national, and was a professional soccer player in El Salvador
until around 2000. Following his retirement, he entered the
construction business in El Salvador with his wife. His
companies bid for government construction contracts, which
regularly yielded 30–40% profit. Earnings from these
contracts placed Silva among El Salvador’s wealthiest
individuals. Silva denied he ever bribed government officials
to secure such contracts.
Silva reports that he became involved in Salvadoran
politics in 2000, when he became a member of the Frente
Farabundo Martí para la Liberación Nacional Party
(“FMLN”). In 2006, however, Silva changed parties when he
was elected a deputy to Congressman Gonzales Lovo, a
member of the Partido de Conciliación Nacional (“PCN”).
Silva testified that although some members of the FMLN
resented his switch to the PCN, he thought both parties had a
shared ideology opposing the then-ruling Alianza
SILVA-PEREIRA V. LYNCH 5
Republicana Nacionalista party (“ARENA”), which Silva
believed to be corrupt.
Roughly six months after Silva assumed office as
Congressman Lovo’s deputy, the Salvadoran legislature held
hearings about allegations that Silva engaged in money
laundering and bribery of government officials through his
construction business. At those hearings, the Salvadoran
Attorney General presented evidence that Silva acquired
approximately $1.6 million in illicit assets between 2004 and
2006 from contracts acquired through bribery. According to
Silva, the charges were brought because the Attorney General
believed him to be a “stumbling block” to the ARENA party.
Ultimately, 82 out of El Salvador’s 84 legislators voted to
suspend Silva’s legislative immunity. The voting majority
included all three parties and 9 out of 10 members of Silva’s
own PCN party, with the exception of Congressman Lovo
who chose to abstain. The legislator who acted as a
prosecutor in Silva’s case also abstained. Silva claims that
the legislature’s landslide vote was orchestrated by ARENA
and motivated by a desire to secure aid from the United States
by demonstrating an active fight against corruption.
After the legislature revoked Silva’s immunity, a
Salvadoran court held hearings in January 2007 to determine
whether the evidence against Silva supported the issuance of
a warrant for his arrest. Silva was represented by counsel at
these hearings, but submitted a note through his attorneys
telling the court that he was too sick to attend. The court
issued a warrant for Silva’s arrest on January 25, 2007. Silva
left El Salvador sometime during this period.
6 SILVA-PEREIRA V. LYNCH
Around the time Silva’s legislative immunity was
suspended, Silva’s wife and mother-in-law were also arrested
on corruption charges connected to their role in Silva’s
construction businesses. His mother-in-law was acquitted.
After being convicted of some charges and acquitted of
others, Silva’s wife was sentenced to seven years in prison.
Additionally, authorities successfully prosecuted a former
mayor, Mario Osorto, for forging documents that facilitated
Silva’s government contracts. Osorto was an ARENA party
member and also a member of the Central American
Parliament (“PARLACEN”). As with Silva, the Salvadoran
legislature voted to suspend Osorto’s legislative immunity in
December 2006. Osorto was sentenced to four years in
prison.
B
Subsequently, in the United States, Silva was
apprehended by agents of the Federal Bureau of Investigation
(“FBI”) near his girlfriend’s home in California in October
2007. When investigators knocked on the door, Silva fled on
foot, jumping fences and hiding in bushes before being
arrested. Following his arrest, Silva conceded removability
but sought asylum, withholding of removal, and protection
under the Convention Against Torture. He declined to
designate a country of removal, so the immigration judge
(“IJ”) designated El Salvador, Silva’s home country, as the
country of removal.
1
At his initial immigration hearings before the IJ in
Florence, Arizona, Silva described several incidents of
violence allegedly perpetrated against him by Salvadoran
SILVA-PEREIRA V. LYNCH 7
officials. First, he asserted that the leader of ARENA’s
legislators threatened him at gunpoint for accusing ARENA
of corruption. Second, Silva alleged he suffered violence at
the hands of Salvadoran police after visiting his wife in prison
in El Salvador. According to Silva, he visited his wife in
October 2006 and took pictures with his cell phone of injuries
she allegedly sustained while incarcerated. Silva testified that
upon leaving the prison, police stopped the car in which he
was riding with his ten-year-old son and his driver.
According to Silva, the police hit him with a rifle, forcibly
took the phone, and threatened his son at gunpoint.
Third, Silva testified that roughly one week after this
assault, police entered his house without a warrant and again
assaulted him and frightened his children. Silva claimed he
was unable to attend the arrest warrant hearings in El
Salvador as a result of injuries from this incident. When
government counsel pointed out that based on Silva’s
testimony, the alleged encounter in his home took place more
than three months before the arrest warrant hearings, Silva
claimed he had actually been beaten an additional time by
“four people dressed as police” in January 2007.
Silva failed to report any of these incidents in his asylum
application to the Department of Homeland Security. When
asked why he failed to mention the incidents involving the
police outside his wife’s prison and in his home, Silva said he
forgot to report them to his attorney. He also claimed that
“[his] problem is very complex” and he worried that other
Salvadoran detainees would “steal [his] declaration” and beat
him.
On cross-examination, government counsel also
questioned Silva about his alleged departure date from El
8 SILVA-PEREIRA V. LYNCH
Salvador. Silva testified that he crossed the Texas border in
early January 2007 after spending only six hours or so in
Guatemala and a handful of days in Mexico. When
government counsel pointed out that this timeline was
inconsistent with the entry date to the United States that Silva
reported in his asylum application, Silva testified that he
actually exited El Salvador several weeks later than he
initially indicated. Silva subsequently admitted that he
allowed his attorneys to tell a Salvadoran judge that he was
too sick to attend the arrest warrant hearings when in fact he
was fleeing the country.
2
Several experts hired by Silva testified that they believed
the Salvadoran corruption charges were likely linked to
Silva’s opposition to the ARENA party. One of these
experts, a private investigator named Tom Parker, also
presented a tape-recorded conversation in which Adolfo
Torrez, a close confidant of the ARENA-affiliated president,
told Silva he could make the charges against Silva and his
wife disappear for a price of $500,000. When Torrez’s offer
became public, the ARENA party withdrew its support for the
Attorney General because he knew about Torrez’s actions but
failed to investigate. Torrez subsequently died of a gunshot
wound. Parker speculated that Torrez was murdered, though
other reports on the forensic evidence indicate that Torrez
committed suicide.
The IJ also heard testimony from Silva’s brother, who
stated that Silva was protected by two bodyguards during his
time as a legislator. Following such testimony, the IJ recalled
Silva and asked him whether his bodyguards were present
during the incidents he recounted in which police assaulted
SILVA-PEREIRA V. LYNCH 9
him outside the prison and at his home. Silva testified that
only one bodyguard was present during each incident because
they took turns every twenty-four hours. He also asserted
that the bodyguard present during both incidents was
unarmed and was also beaten by police.
3
In August 2008, the IJ rendered his first decision,
concluding Silva was non-credible and denying his
applications. In so finding, the IJ noted discrepancies
between Silva’s testimony and his asylum application
concerning his exit date from El Salvador. The Board of
Immigration Appeals (“BIA”) reversed, finding that the IJ’s
limited discussion—and especially his focus on the date
discrepancies—was inadequate to sustain the credibility
determination.
C
Following remand, the IJ conducted additional hearings
between May and September 2009. During this time, the
government introduced evidence that in addition to his crimes
in El Salvador, Silva had also been charged with conspiracy
to commit murder in Guatemala.
1
Exhibits and testimony at the second round of hearings
established that in February 2007, three Salvadoran
representatives to the Central American Parliament were
found murdered in a charred van outside Guatemala City.
Among the murdered PARLACEN representatives was
Eduardo D’Aubuisson, the son of ARENA’s founder and the
10 SILVA-PEREIRA V. LYNCH
brother of Roberto D’Aubuisson, Jr., one of ARENA’s
current leaders. Later inquiry by international investigators
concluded that the representatives were likely carrying $5
million and twenty kilograms of cocaine.
Guatemalan authorities initially arrested four Guatemalan
police officers whom they believed carried out the murders in
cooperation with a drug gang. Two weeks after being taken
into custody, however, these four officers were gunned down
inside a Guatemalan prison, prompting the Guatemalan
government to seek out assistance from the FBI and a task
force sponsored by the United Nations called the International
Commission Against Impunity in Guatemala (“CICIG”).
Guatemalan authorities subsequently charged and convicted
a number of individuals for involvement in these killings,
including a Guatemalan congressman named Manuel Castillo.
Phone records showed Castillo placed calls to both the
corrupt police and the drug gang involved in the hit on
D’Aubuisson and his companions. Castillo was sentenced to
203 years in prison.
During Castillo’s trial, Guatemalan authorities offered
evidence that Silva cooperated with Castillo and the drug
gang in planning the killings. Correspondingly, the
Guatemalan government filed a separate indictment against
Silva, indicating that Silva acted as the “intellectual author”
behind the Guatemalan murders. Specifically, the indictment
accuses Silva of planning the murders with Castillo and
various gang members at a series of meetings in El Salvador
and Guatemala. Those allegations were corroborated during
Castillo’s trial by an eyewitness witness known as “Judas,”
currently under government protection in El Salvador.
SILVA-PEREIRA V. LYNCH 11
Silva’s experts questioned the legitimacy of the
Guatemalan charges, and offered varying theories as to why
Guatemala would target Silva specifically. One expert, a
journalist named Lafitte Martine Fernandez-Rojas who wrote
a popular book about the PARLACEN murders, speculated
that Guatemalan officials actually ordered the hit and
conspired to prosecute Silva to help ARENA hide the party’s
connection to drug dealing. Another expert stated his belief
that Silva was a “fall guy” used by Guatemalan officials to
distance themselves from allegations of drug trafficking.
2
Following this second round of hearings, the IJ issued an
oral decision granting Silva asylum but denying Silva
withholding of removal or protection under the Convention
Against Torture (“CAT”). In so holding, the IJ concluded
that the BIA’s previous decision left him no choice but to find
Silva credible. Upon review, the BIA vacated the IJ’s
decision and remanded the case again, noting that it had
merely instructed the IJ to “provid[e] further explanation,”
not accept Silva’s credibility without question. The BIA also
directed the IJ to make a specific determination concerning
Silva’s eligibility for protection under the CAT if necessary.
D
Following the second remand, the government argued to
the IJ that Silva was statutorily barred from seeking asylum
or withholding of removal because there were serious reasons
to believe Silva committed money laundering in El Salvador
and conspiracy to commit murder in Guatemala. The IJ
agreed and declared Silva ineligible for asylum and
withholding of removal, but sought additional evidence
12 SILVA-PEREIRA V. LYNCH
related to Silva’s CAT claim. During this time, the IJ trying
Silva’s case retired and the case was reassigned to a new
judge.1
1
In the next round of hearings, Silva’s experts testified in
support of his CAT claim that he would be tortured or
executed in El Salvador because Roberto D’Aubuisson, Jr., a
high-powered leader of ARENA and son of the party’s
founder, would seek retribution for his brother’s murder.
Silva’s experts acknowledged that ARENA no longer
controlled the presidency in El Salvador, but insisted that
ARENA continues to exert control over many aspects of the
government. Silva’s experts also argued that Silva would
likely not survive being jailed in Guatemala.
2
In March 2013, the IJ issued a decision denying Silva’s
application for deferral of removal under the CAT and
reiterating that he was ineligible for asylum and withholding
1
During this period, Silva also changed counsel multiple times. The
attorney representing Silva for the first two rounds of proceedings
withdrew after he received anonymous threats subsequent to Silva being
granted temporary asylum. Silva’s next attorney withdrew after
participating in the initial hearings following the second remand, citing a
“fail[ure] to cooperate” on Silva’s part. Silva claimed she misrepresented
her abilities, lied to him, and refused to work because of a fee dispute. A
third attorney withdrew after one appearance having learned about the
threats to Silva’s first attorney, prompting Silva to file a seventeen-page
attorney misconduct complaint. A fourth set of attorneys ultimately
represented Silva through the remainder of proceedings, partly on a pro
bono basis since many of Silva’s assets had been frozen by Salvadoran
authorities.
SILVA-PEREIRA V. LYNCH 13
of removal. Before issuing his decision, however, the IJ
inquired whether Silva wished to reconsider his decision
declining to specify a preferred country of removal. Silva
indicated he wished to designate Nicaragua as his country of
removal. The IJ granted Silva’s request, and designated El
Salvador as the alternate country of removal.
Considering Silva’s claims on the merits, the IJ concluded
that Silva was ineligible for asylum and withholding of
removal because there were serious reasons for believing he
committed serious nonpolitical crimes in both El Salvador
and Guatemala. The IJ also found Silva to be non-credible
after concluding Silva’s explanation for failing to report his
violent interactions with police in his asylum application was
highly implausible. Additionally, the IJ pointed out that Silva
admitted to having lied to the Salvadoran court, and found
that Silva failed to produce relevant evidence corroborating
his story about the attacks. Finally, the IJ held that Silva had
not met his burden under CAT because he had not
demonstrated he would likely be tortured in either El
Salvador or Guatemala.
3
The BIA thereafter dismissed Silva’s appeal, largely
adopting the reasoning of the IJ. The BIA agreed that there
were serious reasons to believe that Silva was involved in the
Guatemalan murders because the charging documents alleged
specific facts and were likely the product of a genuine fight
against corruption. The BIA also concluded that there were
serious reasons to believe Silva committed a serious
nonpolitical crime in El Salvador. In so holding, the BIA also
upheld the IJ’s adverse credibility determination, pointing to
Silva’s lie to the Salvadoran court, his failure to report
14 SILVA-PEREIRA V. LYNCH
incidents of police violence, and his lack of corroborating
evidence. Finally, the BIA upheld the IJ’s determination
denying Silva’s CAT claim.
Silva timely petitioned for review.
II
“We review ‘denials of asylum, withholding of removal,
and CAT relief for substantial evidence and will uphold a
denial supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Huang v.
Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting Garcia-
Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2013)). The
agency’s “findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, in order to
reverse the BIA, “we must determine that the evidence not
only supports a contrary conclusion, but compels it—and also
compels the further conclusion that the petitioner meets the
requisite standard for obtaining relief.” Huang, 744 F.3d at
1031 (alterations and internal quotation marks omitted).
“Where, as here, the BIA adopts the IJ’s decision while
adding its own reasons, this court reviews both decisions.”
Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011); see
also Shrestha v. Holder, 736 F.3d 871, 877 (9th Cir. 2013)
(observing that “[w]hen the BIA conducts its own review of
the evidence and law rather than adopting the IJ’s decision,”
we review only the BIA’s decision “except to the extent that
the IJ’s opinion is expressly adopted”).
SILVA-PEREIRA V. LYNCH 15
III
Silva first argues that the record does not support the
BIA’s conclusion that there are serious reasons to believe that
he participated in the murder of D’Aubuisson and his
companions in Guatemala, or engaged in bribery and money
laundering in El Salvador. In so arguing, Silva contends that
the IJ erred in finding him non-credible.
Because Silva’s application for relief was submitted after
May 11, 2005, the REAL ID Act governs his case. Pub. L.
No. 109-13, 119 Stat. 231 (2005); see Shrestha v. Holder,
590 F.3d 1034, 1039 (9th Cir. 2010). The REAL ID Act
states in relevant part:
Considering the totality of the circumstances,
and all relevant factors, a trier of fact may
base a credibility determination on . . . the
inherent plausibility of the applicant’s or
witness’s account, the consistency between
the applicant’s or witness’s written and oral
statements. . . , the internal consistency of
each such statement . . . and any inaccuracies
or falsehoods in such statements, without
regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of
the applicant’s claim, or any other relevant
factor.
8 U.S.C. § 1158(b)(1)(B)(iii); see also id. §§ 1231(b)(3)(C)
(adopting this standard for withholding of removal),
1229a(c)(4)(C) (all other relief). “Under the REAL ID Act,
there is no presumption that an applicant for relief is credible,
and the IJ is authorized to base an adverse credibility
16 SILVA-PEREIRA V. LYNCH
determination on ‘the totality of the circumstances’ and ‘all
relevant factors.’” Huang v. Holder, 744 F.3d 1149, 1152–53
(9th Cir. 2014) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The
Act explicitly names factors such as “the inherent
plausibility” of the applicant’s account, “consistency between
[his] written and oral statements,” and the “consistency of
such statements with other evidence of record.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). However, “these statutory factors are
not exhaustive,” and “the agency can look to relevant pre-
REAL ID Act factors, such as the ‘level of detail of the
claimant’s testimony.’” Bingxu Jin v. Holder, 748 F.3d 959,
964 (9th Cir. 2014) (quoting Shrestha, 590 F.3d at 1040).
“[O]nly the most extraordinary circumstances will justify
overturning an adverse credibility determination.” Id.
(quoting Shrestha, 590 F.3d at 1040). Nonetheless, “an
adverse credibility determination cannot be based on
complete speculation and conjecture.” Singh v. Lynch,
802 F.3d 972, 977 (9th Cir. 2015). Instead, an IJ must
provide “specific and cogent reasons” supporting such a
determination with reference to “specific instances in the
record.” Shrestha, 590 F.3d at 1044.
A
In upholding the IJ’s decision, the BIA first agreed with
the IJ that Silva’s failure to mention in his asylum application
incidents of police violence that occurred outside the prison
and at his home in his asylum application was a significant
omission that justified an adverse credibility finding. Silva
has pointed us to no evidence that compels a contrary
conclusion.
Although it is true that “mere omission of details is
insufficient to uphold an adverse credibility finding,” Lai v.
SILVA-PEREIRA V. LYNCH 17
Holder, 773 F.3d 966, 971 (9th Cir. 2014) (quoting Singh v.
Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005)), an adverse
credibility determination may be supported by omissions that
are not “details,” but new allegations that tell a “much
different—and more compelling—story of persecution than
[the] initial application,” Zamanov v. Holder, 649 F.3d 969,
974 (9th Cir. 2011). For instance, in Zamanov, we concluded
that substantial evidence supported the BIA’s adverse
credibility determination where a petitioner’s asylum
application failed to mention three incidents in which police
interrupted his participation in various political activities,
arrested him, and beat him. Id. at 972. We noted that these
omissions “materially altered” his account of persecution by
connecting government persecution to his political activity,
and thus “went to the core of his alleged fear of political
persecution” as our pre-REAL ID act case law required. Id.
at 973–74.
We have since reiterated the rule explained in Zamanov
several times. For instance, in Alvarez-Santos v. INS, we
upheld the BIA’s adverse credibility determination where an
applicant failed to mention a violent incident supporting his
two previous asylum applications. 332 F.3d 1245, 1248–49
(9th Cir. 2003). At the conclusion of his direct testimony, the
applicant mentioned for the first time that masked men
associated with a guerrilla group who had sent him
threatening letters came to his house, caught him, and stabbed
him in the shoulder. Id. at 1249. We held that it was “simply
not believable that an applicant for asylum would fail to
remember” the experience of being attacked and stabbed
which precipitated his flight from his home country. Id. at
1254. Likewise, in Kin v. Holder, we held that a petitioner’s
failure to mention that he had been beaten by police after
participating in a political rally constituted substantial
18 SILVA-PEREIRA V. LYNCH
evidence to support an adverse credibility finding, because
these allegations were not “trivial details” but allegations
“crucial to establishing they were persecuted for their
political opinion.” 595 F.3d 1050, 1057 (9th Cir. 2010).
Here the BIA reasonably concluded that Silva’s failure to
mention his altercations with police were not details, but
instead “significant events of alleged police misconduct that
would have supported his applications for relief.” In his
asylum application, Silva stated only that the prosecution for
corruption in El Salvador aimed at himself and his family was
actually a form of persecution for Silva’s outspoken criticism
of ARENA. At his immigration hearing, however, Silva
reported for the first time that police brutally beat him outside
his wife’s prison and again in his home—incidents which he
claims left him with permanent injuries and provoked
extreme psychological trauma in his children. Moreover,
Silva testified that when he asked the police why they were
pointing a gun at his son, they told him it was “because of
your political opinion [and] because you’re always talking.”
These are not trivialities, but “pivotal event[s]” that were
“crucial to establishing” that Silva actually suffered
persecution as a result of his political opinion. See Alvarez-
Santos, 332 F.3d at 1254; Kin, 595 F.3d at 1057.
Likewise, Silva’s explanation for omitting these events
from his application for asylum “is not persuasive enough to
compel the conclusion that the omissions were immaterial.”
Kin, 595 F.3d at 1057. Before testifying about the altercation
with police outside his wife’s prison, Silva explained that
such incident was not included in his asylum application
because he “forgot” to mention it to his attorney. Silva later
stated that he did not previously report his altercations with
police because “[his] problem is very complex” and because
SILVA-PEREIRA V. LYNCH 19
he worried other Salvadoran detainees might beat him and
“steal [his] declaration.” Yet as the IJ and the BIA both
concluded, it is “simply not believable” that Silva would fail
to remember such “dramatic incident[s]” so closely related to
his asylum claim. See Alvarez-Santos, 332 F.3d at 1254. We
also agree with the agency that it strains belief to conclude
that Silva would fear accusing unnamed police officers of
misconduct when his initial asylum application accused
ARENA’s highest ranking officials of wrongdoing and
corruption. Such circumstances clearly distinguish Silva’s
case from instances in which we have found the BIA’s
credibility determination based on an omission to be
unsupported. See Lai, 733 F.3d at 974 (holding an adverse
credibility determination was not supported where a claimant
“gave a plausible and compelling explanation for the
omission”).
Silva argues that various documents submitted several
years after his testimony compel the conclusion that the
agency’s credibility determination is mistaken. But as the
BIA noted, many of these documents were based only on
Silva’s own assertions or otherwise insufficient to corroborate
his version of events. For instance, Silva submitted an
evaluation from a psychologist who examined him more than
four years after his alleged encounters with police, and whose
findings were based entirely on Silva’s own account of past
events. Likewise, the reports Silva submitted from two
physicians indicate only that Silva was seen for chest pain
and various other conditions roughly two years after the
violent incidents with police are said to have occurred. Silva
also points to a statement attributed to his driver which
supports his claims that he was beaten outside his wife’s
prison. Yet the BIA found this report inconsistent with
statements by Silva’s brother that Silva was always
20 SILVA-PEREIRA V. LYNCH
accompanied by bodyguards, and also pointed to Silva’s
failure to provide any corroborating evidence from his son
whom police allegedly threatened—now aged 16 or
17—despite the fact that several other family members
testified on Silva’s behalf. Because the record does not
compel the conclusion that the agency’s assessment of this
evidence was mistaken or that “such corroborating evidence
[was] unavailable,” we decline to reverse the IJ’s credibility
determination on this basis. See 8 U.S.C. 1252(b)(4); see also
Shrestha, 590 F.3d at 1047–48.
B
In addition to Silva’s failure to report incidents of alleged
persecution by the police, the IJ and the BIA also noted
discrepancies in Silva’s testimony regarding his entry date
into the United States. In his asylum application, Silva said
he left El Salvador on January 7, 2007, and that he arrived in
the United States on February 1, 2007. However, after the
government’s attorney pointed out that this exit date was
irreconcilable with Silva’s reported timeline in traveling to
the United States, Silva then stated he actually left El
Salvador on January 22, 2007.
Silva argues that this date discrepancy is insufficient on
its own to support an adverse credibility determination, as the
BIA concluded on its first remand. We are inclined to agree.
However, “when inconsistencies that weaken a claim for
asylum are accompanied by other indications of dishonesty
. . . an adverse credibility determination may be supported by
substantial evidence.” Kaur v. Gonzales, 418 F.3d 1061,
1067 (9th Cir. 2005). Here, the IJ and the BIA clarified that
Silva’s varying testimony on this point was significant not for
SILVA-PEREIRA V. LYNCH 21
its own sake, but instead because it related directly to Silva’s
efforts to avoid criminal charges.
The record demonstrates that following the legislature’s
revocation of Silva’s immunity, a Salvadoran court held
hearings beginning on January 18, 2007, to determine
whether a warrant for Silva’s arrest ought to be issued. Silva
testified that he instructed his attorneys to submit a note to the
judge stating that he was too ill to attend the proceedings
because of the beating he sustained by police when they
searched his home. When DHS pointed out that Silva had
previously testified that this incident took place roughly three
months before the court hearings, Silva claimed that he had
been beaten an additional time by individuals dressed as
police in January 2007. The government then asked Silva to
explain how he was both too injured to attend the arrest-
warrant hearings but well enough to flee El Salvador on
January 22 as he had just indicated. Silva first responded by
saying he was “just hurt” and “not totally in a grave state.”
After the government lawyer repeated the question multiple
times, however, Silva admitted that he planned to and did flee
El Salvador on January 22, and that his statement to the court
that he was too ill to attend was fraudulent. We have held on
numerous occasions that the “[a]dmission of prior dishonesty
can support an adverse credibility determination.” Don v.
Gonzales, 476 F.3d 738, 741 n.5 (9th Cir. 2007); see also
Kaur, 418 F.3d at 1065 (“It strains credulity to hold that the
evidence presented at the asylum hearing compels us to find
Kaur believable for the sole reason that she admitted to being
a liar.”). The IJ did not err in finding Silva non-credible on
a such basis here.
In his opening brief, Silva’s attorney admits that Silva
intentionally lied to the Salvadoran court, but contends that
22 SILVA-PEREIRA V. LYNCH
the lie was justified “to escape a sham trial at a puppet court.”
But the record does not compel that conclusion. Although
some of Silva’s experts asserted that it is “virtually
impossible to get a fair trial in El Salvador,” they also
recognized that justice can be had—an assertion further
supported by the fact that Silva’s mother-in-law was acquitted
of all charges against her, and his wife acquitted of several.
Moreover, Silva’s appeal to possible corruption in the
Salvadoran justice system does nothing to explain why Silva
testified to the IJ that he was too sick to attend the hearings
until inconsistencies in his own testimony forced him to
admit he was lying. See Don, 476 F.3d at 742 (observing that
a petitioner’s argument that he lied to Sri Lankan police out
of fear for his safety “d[id] not explain why Don provided
different dates to the asylum officer and to the IJ”). The
agency’s credibility determination was valid.
IV
Silva next argues that the BIA erred in concluding that
there are serious reasons to believe that he committed two
serious nonpolitical crimes—conspiracy to murder
D’Aubuisson and his companions in Guatemala and money
laundering and bribery in El Salvador. Once again, we
review the BIA’s conclusion for substantial evidence. See Go
v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011).
A
An individual is ineligible for asylum and withholding of
removal where “there are serious reasons for believing that
the alien has committed a serious nonpolitical crime outside
the United States.” 8 U.S.C. §§ 1158(b)(2)(A)(iii) (asylum),
1231(b)(3)(B)(iii) (withholding of removal); see also 8 C.F.R.
SILVA-PEREIRA V. LYNCH 23
§ 1208.16(d)(2). We have interpreted “serious reasons for
believing” as “tantamount to probable cause.” Go, 640 F.3d
at 1052; see also Matter of E-A-, 26 I. & N. Dec. 1, 3 (BIA
2012).
In finding Silva ineligible for asylum and withholding of
removal, the BIA determined that there are serious reasons
for believing that Silva conspired with others to murder
D’Aubuisson and the other PARLACEN delegates in
Guatemala. Silva does not contest that the Guatemalan
murders were serious nonpolitical crimes, nor did he make
any such argument to the BIA. Thus, the only question
before us in relation to this issue is whether there are “serious
reasons for believing” Silva was complicit in these killings.
See 8 U.S.C. § 1252(a)(1); Abebe v. Mukasey, 554 F.3d 1203,
1208 (9th Cir. 2009) (en banc) (noting that a “ [p]etitioner
will . . . be deemed to have exhausted only those issues he
raised and argued in his brief before the BIA.”).
As both the IJ and the BIA noted, the Guatemalan
indictment provides strong reason to believe that Silva was
involved in the PARLACEN murders, not least because it
alleges specific facts connecting Silva to the crime. The
indictment accuses Silva of planning the murders with
Castillo’s gang contacts at a series of meetings—one inside
a restaurant allegedly owned by Osorto, the mayor who was
convicted of corruption for assisting Silva in obtaining
government contracts, and a second meeting at a car wash in
Guatemala. Moreover, the indictment’s allegations were
corroborated by “Judas,” an eyewitness whom the
Guatemalan court deemed credible. Judas testified in no
uncertain terms that he witnessed Silva meet with various
gang members, and that Silva planned the murder of
D’Aubuisson and his companions at those meetings. What is
24 SILVA-PEREIRA V. LYNCH
more, Judas asserted that the murders were occasioned by
Silva’s desire for political and financial revenge against
ARENA—the same theory that supported the Guatemalan
government’s conviction of Castillo for ordering the killings.
Such evidence is certainly sufficient to constitute probable
cause—a “fair probability” that Silva was involved in the
murders. See United States v. Gourde, 440 F.3d 1065, 1069
(9th Cir. 2006) (en banc) (quoting Illinois v. Gates, 462 U.S.
213, 246 (1983)).
Silva argues that the probable cause standard we
articulated in Go is inapposite because unlike the petitioner
in that case, Silva did not affirmatively admit to participating
in the murders. See Go, 640 F.3d at 1053. But there is no
question that Go’s standard can be met without an explicit
admission of guilt, as other courts have rightly recognized.
For instance, in Khouzam v. Holder, 361 F.3d 161, 166
(2d Cir. 2004), the Second Circuit relied on an Egyptian
arrest warrant and police reports to conclude that there were
“serious reasons for believing” that a petitioner had
committed a murder in that country. In so concluding, the
court reasoned that, just as in Silva’s case, the documents
submitted were sufficient to establish probable cause because
they suggested a possible motive for the killing and offered
specific allegations supporting the charge—that the
petitioner’s fingerprints were found at the scene, that he was
seen wearing a bloody shirt that was later recovered, and that
eyewitnesses said he had an injured hand. Id. Silva contends
that Khouzam is distinguishable because the charges in that
case were supported by circumstantial evidence rather than
eyewitness testimony. But that difference is beside the point.
Even assuming that the quantum of evidence in Silva’s case
differs from the evidence at issue in Kouzam, Silva has
SILVA-PEREIRA V. LYNCH 25
pointed to no evidence that “compel[s] the conclusion that
probable cause was lacking.” Go, 640 F.3d at 1053. Absent
such a showing, the BIA’s determination must be upheld.
Silva also argues that the IJ improperly ignored the
testimony of Fernandez-Rojas and Silva’s other experts that
the charges against Silva were pretextual and that the
PARLACEN murders were in fact perpetrated by the
Guatemalan government to cover up drug dealing. But the
agency was within its discretion to reject these alternate
theories. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705
n.7 (9th Cir. 2010) (observing that an IJ is “not required to
adopt as true all of the facts” upon which an expert witness
based his opinion where the IJ states “specific reasons in the
record why the testimony was insufficient to establish” facts
necessary to grant relief).
Here, both the BIA and the IJ found that evidence in the
record suggests that although there is corruption in
Guatemala, there have been improvements especially related
to that government’s investigation of the PARLACEN
murders, making it unlikely that the charges against Silva
were pretextual. For instance, the BIA noted that in response
to the murder of the police officers who carried out the
PARLACEN killings, the Guatemalan government sought the
assistance of the FBI to help bring those responsible to
justice. Moreover, the record demonstrates that Guatemala
has convicted not only numerous gang members implicated
in the murders, but also Manuel Castillo, himself a
Guatemalan official. Likewise, the BIA observed that the
reliability of the CICIG report upon which Silva’s experts
based their conclusions was at least questionable since the
report’s principal author has herself since been implicated in
corruption and stripped of immunity by CICIG. One may
26 SILVA-PEREIRA V. LYNCH
certainly disagree with the agency’s assessment of the
evidence or believe such evidence “cast[s] a reasonable doubt
on [Silva’s] guilt.” Khouzam, 361 F.3d at 166. But that is a
far cry from “compel[ling] a finding that [Silva] was framed”
or that probable cause is lacking. Id.
Because the Guatemalan charges provide a sufficient
basis upon which to conclude that Silva is ineligible for
asylum and withholding of removal, we need not reach
Silva’s challenges to the BIA’s alternate conclusion that there
are serious reasons for believing that Silva committed a
second serious nonpolitical crime by engaging in bribery and
money laundering in El Salvador. Silva is ineligible for
asylum and withholding of removal.
B
Silva next argues that even assuming his possible
involvement in the Guatemalan murders renders him
ineligible for asylum and withholding of removal, the agency
should have been forbidden from reaching this conclusion
under the law of the case doctrine.
The law of the case doctrine “generally preclude[s]
[courts] from reconsidering an issue previously decided by
the same court, or a higher court in the identical case.”
Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703,
715 (9th Cir. 1990). However, we have previously observed
that “it is doubtful that federal courts have the authority to
extend the law of the case doctrine” to administrative
proceedings. Lockert v. U.S. Dep’t of Labor, 867 F.2d 513,
518 (9th Cir. 1989); see also Biltmore Forest Broadcasting
FM, Inc. v. FCC, 321 F.3d 155, 163 (D.C. Cir. 2003) (noting
that “the law of the case doctrine is of uncertain force in the
SILVA-PEREIRA V. LYNCH 27
context of administrative litigation”); but see Stacy v. Colvin,
No. 13-36025, 2016 WL 3165597, at *1 (9th Cir. June 7,
2016) — F.3d — (holding that the law of the case doctrine
applies to social security administrative remands from federal
court). That reticence makes sense in the context of
immigration proceedings, because both the BIA and the IJ
have explicit legal authority to reconsider their own decisions
sua sponte. See 8 C.F.R. § 1003.2(a) (“The Board may at any
time reopen or reconsider on its own motion any case in
which it has rendered a decision.”); 8 C.F.R. § 1003.23(b)(1)
(“An Immigration Judge may upon his or her own motion at
any time . . . reopen or reconsider any case in which he or she
has made a decision, unless jurisdiction is vested with the
Board.”). Indeed, we are aware of only one circuit that has
held that the law of the case doctrine applies to immigration
proceedings. See Zhang v. Gonzales, 434 F.3d 993, 998 (7th
Cir. 2006) (interpreting the law of the case doctrine as
forbidding a new IJ from reconsidering a petitioner’s
credibility where that issue exceeded the scope of the BIA’s
instructions on remand). For the purposes of this appeal,
however, we need not decide whether the law of the case
doctrine applies in the immigration context, because even
assuming it does, the doctrine provides no help to Silva.
For the law of the case doctrine to bar reconsideration of
an issue, “the issue in question must have been decided
explicitly or by necessary implication in the previous
disposition.” United States v. Lummi Indian Tribe, 763 F.3d
1180, 1187 (9th Cir. 2014) (quoting United States v. Lummi
Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000)). Silva
admits that neither the IJ nor the BIA explicitly decided
whether he was ineligible for asylum and withholding of
removal on the basis of the serious nonpolitical crimes bar
before the final round of decisions. Nonetheless, he argues
28 SILVA-PEREIRA V. LYNCH
that the IJ and the BIA “found by necessary implication” in
their earlier decisions that the bar did not apply. We disagree.
In its first decision, the IJ denied Silva asylum and
withholding of removal on the basis of its adverse credibility
determination. The BIA reversed and remanded, stating that
the IJ’s focus on the discrepancies in dates relating to Silva’s
departure from El Salvador was inadequate to sustain the
credibility determination. Subsequently, the IJ issued a
second decision granting Silva asylum, based in large part on
his erroneous view that the BIA’s previous ruling required
that he find Silva credible. We doubt that this decision held
by “necessary implication” that the serious nonpolitical
crimes bar did not apply, since we find no evidence that the
IJ was ever presented with or actually considered that issue.
See Lummi Nation, 763 F.3d at (noting that “law of the case
acts as a bar only when the issue in question was actually
considered and decided by the first court” (quoting United
Steelworkers of Am. v. Ret. Income Plan for Hourly-Rated
Employees of ASARCO, Inc., 512 F.3d 555, 564 (9th Cir.
2008))); Hall v. City of Los Angeles, 697 F.3d 1059, 1067
(9th Cir. 2012) (holding that an issue was not decided by
necessary implication where it “had never been considered or
decided by any court”); see also Black’s Law Dictionary (9th
ed. 2009) (defining “necessary implication” as “[a]n
implication so strong in its probability that anything to the
contrary would be unreasonable”). Yet even assuming the
IJ’s second decision addressed the serious nonpolitical crimes
bar by “necessary implication” insofar as it granted Silva
asylum, the BIA reversed the IJ’s decision and once more
remanded the case. Moreover, nowhere in BIA’s second
decision do we find any indication that it considered and
rejected the applicability of the bar, or that it granted any
form of relief suggesting the bar did not apply. To the
SILVA-PEREIRA V. LYNCH 29
contrary, the BIA’s decision returned the matter to the IJ with
explicit instructions to conduct further inquiry to determine
whether Silva was actually entitled to asylum or any other
form of relief. Silva’s law of the case argument is meritless.
V
Although Silva is ineligible for asylum and withholding
of removal under 8 U.S.C. §§ 1158(b)(2)(A)(iii) and
1231(b)(3)(B)(iii), he may still seek deferral of removal under
the CAT. See 8 C.F.R. § 1208.17(a); see also Go, 640 F.3d
at 1053. To succeed in obtaining such relief, a petitioner
must establish that “it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2) (emphasis added); see
also 8 C.F.R. § 1208.17(a) (applying this standard to deferral
of removal). Such language plainly requires that a petitioner
must demonstrate he will likely suffer torture in the country
to which he is actually ordered removed “as opposed to an
alternative country of removal.” She v. Holder, 629 F.3d 958,
965 (9th Cir. 2010) (examining identical language as
contained in 8 C.F.R. § 1208.16(b)); see also 8 C.F.R.
§ 1240.10(f) (contrasting the IJ’s power to designate “the
country of removal” with the IJ’s ability to identify multiple
“alternative countries of removal”) (emphasis added).
At his initial immigration hearing, Silva decided not to
designate a country of removal, prompting the IJ initially
assigned to Silva’s case to designate El Salvador as the
country of removal in accordance with the relevant statute.
See 8 U.S.C. § 1231(b)(2) (establishing the process for
determining the country to which an alien who has been
residing in the United States shall be removed).
Subsequently, that IJ retired, and a new IJ took over Silva’s
30 SILVA-PEREIRA V. LYNCH
case and conducted hearings on Silva’s CAT claim. At the
conclusion of these hearings, this IJ inquired on his own
initiative whether Silva wished to reconsider his decision to
forego designating a country of removal. After consulting
with counsel, Silva requested that Nicaragua be designated as
his country of removal. The IJ obliged, and ultimately
ordered that Silva be removed to Nicaragua as the primary
country of removal, or alternatively to El Salvador.
Silva appealed the IJ’s decision to the BIA and contested
the IJ’s determination that he failed to meet his burden under
CAT. However, Silva’s arguments focused exclusively on
the likelihood that he will suffer torture in either El Salvador
or Guatemala. At no point did Silva argue to the BIA, nor
has he argued to us, that he would likely suffer torture if
removed to Nicaragua—“the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). Because this issue is unexhausted,
we have no power to review it. See 8 U.S.C. § 1252(d)(1);
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en
banc) (holding that an alien is “deemed to have exhausted
only those issues he raised and argued in his brief before the
BIA”); see also Pagayon v. Holder, 675 F.3d 1182, 1188 (9th
Cir. 2011) (“A petitioner must specify the issues he intends
to raise on appeal; a ‘general challenge to the IJ’s decision’
will not suffice.’” (quoting Zara v. Ashcroft, 383 F.3d 927,
930 (9th Cir. 2004))). The BIA’s order commanding Silva’s
removal to Nicaragua stands.2
2
We note that Silva also challenges the BIA’s determination that he has
not demonstrated a likelihood that he would be tortured in El Salvador, the
alternate country of removal. Because this challenge does not relate to
“the proposed country of removal,” which is properly the focus of Silva’s
CAT claim, we do not review it at this time. See 8 C.F.R. § 1208.16(c)(2);
She, 629 F.3d at 965 n.7. However, should El Salvador ultimately become
the proposed country of removal, see 8 U.S.C. § 1231(b)(2)(C), we fully
SILVA-PEREIRA V. LYNCH 31
VI
For the foregoing reasons, the petition for review is
DENIED.
expect that the BIA will grant a motion to reopen Silva’s application such
that we may consider his challenge to this aspect of the BIA’s
determination. Cf. She, 629 F.3d at 965.