Hernandez-Martinez v. Whitaker

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 18-1381
MARCOS DIMAS HERNANDEZ-MARTINEZ,
Petitioner,
v.
MATTHEW G. WHITAKER,*
ACTING ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Stahl, and Kayatta,
Circuit Judges.
Daniel W. Chin, Kevin MacMurray, and MacMurray & Associates
on brief for petitioner.
Joseph H. Hunt, Assistant Attorney General, Civil Division,
Paul Fiorino, Senior Litigation Counsel, Office of Immigration
Litigation, and Deitz P. Lefort, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions III as the respondent.
January 17, 2019
LYNCH, Circuit Judge. Marcos Dimas Hernandez-Martinez,
of El Salvador, petitions for judicial review of a Board of
Immigration Appeals decision affirming an Immigration Judge's
denial of asylum, withholding of removal, and voluntary departure
under various provisions of the Immigration and Nationality Act.
8 U.S.C. § 1101 et seq. We deny the petition because each of the
BIA's two holdings is supported by the record: Hernandez-Martinez
failed to adequately raise the adverse credibility issue with the
BIA, and, in any event, the IJ's determination that Hernandez-
Martinez lacked credibility is supported by substantial evidence.
I.
Hernandez-Martinez entered the United States on May 10,
2012, near Hidalgo, Texas. He was apprehended and told the Border
Patrol that he did not fear returning to El Salvador. At his later
credible fear interview with an asylum officer on September 5,
2012, Hernandez-Martinez changed his story. He said that he did
fear returning to El Salvador, and that was because members of
Farabundo Martí National Liberation Front (FMLN), a Salvadoran
political party, threatened and harmed him after he refused their
demand that he plant illegal drugs at the coffee plantation where
he worked.
On May 5, 2017, the IJ denied Hernandez-Martinez's
applications for relief and ordered him removed. The IJ found
that Hernandez-Martinez's testimony was not credible and also that
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he had submitted a frivolous asylum application. In denying
Hernandez-Martinez's claims for relief, the IJ pointed to numerous
discrepancies, including the contradiction between Hernandez-
Martinez's statements when he first entered the United States and
during his credible fear interview, and further contradictions in
his testimony. Hernandez-Martinez testified at the asylum hearing
that he suffered injuries at the hands of FMLN members for which
he sought medical treatment, but he failed to mention this to the
asylum officer. Moreover, in his credible fear interview,
Hernandez-Martinez initially told the asylum officer that FMLN
members had taken him to a house and tortured him for hours.
Describing the same incident in the asylum hearing, however,
Hernandez-Martinez did not repeat this description, instead saying
only that the FMLN members punched him five or six times.
The IJ also noted that Hernandez-Martinez's mother
submitted a "letter" to the court, which did not support the
petitioner's claims and made no mention of the alleged FMLN attack.
And the IJ pointed out that Hernandez-Martinez's testimony at the
asylum hearing was internally contradictory regarding whether his
family was threatened or harmed by the FMLN and whether he was
affiliated with the FMLN's rival party, the Nationalist Republican
Alliance. The IJ found that when Hernandez-Martinez was asked to
explain the many inconsistencies and discrepancies, he did not do
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so satisfactorily, and he provided no corroborating evidence for
his claims.
The BIA upheld the denial of relief, save for reversing
the IJ's finding that Hernandez-Martinez had filed a frivolous
asylum application. The BIA first upheld the lack of credibility
finding as not clearly erroneous. The BIA also found that "[o]n
appeal, the respondent has not meaningfully challenged the adverse
credibility finding as it relates to asylum, withholding of
removal, . . . and voluntary departure." The BIA concluded that
"[w]hile the respondent briefly addresses the adverse credibility
finding in his Notice of Appeal, he then waived any challenges to
it by not developing or pursuing it in his brief."
Represented by new counsel, Hernandez-Martinez filed a
petition for review of the BIA's decision before this court.
II.
Because both the BIA and the respondent addressed both
of the IJ's holdings, we do so as well.
"[W]e may review a final order of the BIA only if 'the
alien has exhausted all administrative remedies available to the
alien as of right.'" Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.
2006) (quoting 8 U.S.C. § 1252(d)(1)). "The purpose of this
exhaustion requirement is to ensure that a court will not
commandeer an agency's prerogatives." Pineda v. Whitaker, 908
F.3d 836, 842 (1st Cir. 2018). "[I]t creates a carefully
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calibrated balance of responsibilities, affording the parties the
full benefit of the agency's expertise and allowing the agency the
first opportunity to correct its own bevues." Mazariegos-Paiz v.
Holder, 734 F.3d 57, 63 (1st Cir. 2013). "We apply the exhaustion
requirement 'not only to claims omitted from an appeal to the BIA
but also to claims that were insufficiently developed before the
BIA.'" Pérez Batres v. Lynch, 796 F.3d 157, 160 (1st Cir. 2015)
(quoting Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir. 2007)).
Hernandez-Martinez first argues to us that the BIA erred
in determining that he had waived any challenge to the credibility
finding in his briefing to the BIA. On this record, the BIA
properly found that Hernandez-Martinez waived his adverse
credibility argument. There was no error. See Kechichian v.
Mukasey, 535 F.3d 15, 21-22 (1st Cir. 2008); Estrada-Canales v.
Gonzales, 437 F.3d 208, 220 (1st Cir. 2006). Our own review shows
that Hernandez-Martinez's brief to the BIA only challenged the
IJ's frivolousness finding. It did not challenge the credibility
finding, much less provide an explanation as to why the credibility
finding should be overturned.
Hernandez-Martinez attempts to avoid the exhaustion
doctrine, arguing that it applies only when a petitioner fails to
raise a "full claim[] of relief," such as asylum or withholding of
removal. In essence, Hernandez-Martinez argues that it is enough
that before the BIA he said he challenged the IJ's denial of his
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claims for relief. He is wrong. "A failure to present developed
argumentation to the BIA on a particular theory amounts to a
failure to exhaust administrative remedies as to that theory."
Ramirez-Matias v. Holder, 778 F.3d 322, 327 (1st Cir. 2015); accord
De Lima v. Sessions, 867 F.3d 260, 267 (1st Cir. 2017). "The BIA
has the right to expect -- and insist upon -- more." Athehortua-
Vanegas v. I.N.S., 876 F.2d 238, 241 (1st Cir. 1989).
Hernandez-Martinez alternatively argues that he did
adequately raise the issue of the IJ's adverse credibility finding
before the BIA by doing so implicitly because "the standards of
frivolousness and adverse credibility are the same for all intents
and purposes." This is incorrect. Without accepting his premise
that an implicit argument ever suffices to exhaust, there was
nothing in the frivolousness argument to put the BIA on notice
that he was challenging the adverse credibility finding.
Further, a BIA decision reversing an IJ's frivolousness
finding does not itself undermine the IJ's finding that the
petitioner's testimony was not credible. Zheng v. Mukasey, 546
F.3d 70, 71 (1st Cir. 2008). A frivolousness finding requires a
showing that "any of [the application's] material elements [were]
deliberately fabricated." 8 C.F.R. § 1208.20. An adverse
credibility finding has no such requirement. An attack that
testimony was not deliberately fabricated does not itself attack
an adverse credibility finding.
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We turn to the BIA's other ground for affirmance. "[W]e
review the IJ's adverse credibility determination under the
deferential 'substantial evidence' standard, and must sustain it
'unless the record evidence would compel a reasonable factfinder
to make a contrary determination.'" Cuko v. Mukasey, 522 F.3d 32,
37 (1st Cir. 2008) (emphasis in original) (quoting Stroni v.
Gonzales, 454 F.3d 82, 87 (1st Cir. 2006)). "Specifically, we
narrowly inquire whether: (i) the discrepancies articulated by the
IJ and/or the BIA are actually present in the administrative
record; (ii) the discrepancies generate specific and cogent
reasons from which to infer that petitioner or his witnesses
provided non-creditworthy testimony; and (iii) petitioner failed
to provide a persuasive explanation for these discrepancies." Id.
The adverse credibility determination was supported by
substantial evidence. As described above, the IJ gave specific
and cogent reasons for his finding. Hernandez-Martinez was given
ample opportunity to explain the inconsistencies and discrepancies
in his story, but failed to do so and provided no corroborating
evidence. The record does not compel a different result regarding
Hernandez-Martinez's credibility.
The petition for review is denied. To the extent the
petition challenges the merits of the BIA's affirmance of the IJ's
credibility determination, we dismiss for lack of jurisdiction for
non-exhaustion.
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