Guaman v. Holder, Jr.

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1266
SEGUNDO GUAMAN,
a/k/a Guaman Asuncion, a/k/a Punin Segundo,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Stahl, and Thompson, Circuit Judges.
Adam Scott Elman on brief for petitioner.
Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, United States Department of
Justice, Stuart F. Delery, Acting Assistant Attorney General, and
William C. Peachey, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
April 10, 2013
STAHL, Circuit Judge. Petitioner Segundo Guaman, a
native and citizen of Ecuador, petitions for our review of a
decision by the Board of Immigration Appeals (BIA) affirming the
denial of his application for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). The BIA's
affirmance was based, among other things, on a finding by the
Immigration Judge (IJ) that Guaman was not credible. Because that
adverse credibility determination was supported by substantial
evidence, we deny the petition for review.
Guaman entered the United States without inspection in
March 2000. The Department of Homeland Security initiated removal
proceedings in April 2007; Guaman conceded removability and applied
for asylum, withholding of removal, and CAT protection. He claimed
to have been persecuted in Ecuador primarily on account of his
membership in the indigenous Quichua tribe and his political
opinion. The IJ denied Guaman's application on two independent
grounds, concluding that he was not a credible witness and that, in
any event, he had failed to establish past persecution.1 The IJ
based his adverse credibility determination on inconsistencies in
1
The IJ "err[ed] on the side of caution" and assumed that
Guaman's failure to file for asylum within one year of his arrival
in the United States was a result of his Post-Traumatic Stress
Disorder. See 8 U.S.C. § 1158(a)(2)(B), (D); 8 C.F.R.
§ 1208.4(a)(5). The IJ emphasized, however, that he was "quite
skeptical that the respondent did not submit his application for
asylum because of post-traumatic stress disorder," and that his
skepticism was "reinforced by the respondent's testimony that he
simply did not know about asylum."
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Guaman's testimony that the IJ determined were not attributable to
Guaman's diagnosis of Post-Traumatic Stress Disorder (PTSD) or to
translation issues during his merits hearing.
The BIA affirmed, examining the bases for the IJ's
decision, and we now review both opinions. See Matovu v. Holder,
577 F.3d 383, 386 (1st Cir. 2009). Under the deferential
substantial evidence standard, we must accept all factual findings,
including the IJ's credibility determination, "as long as they are
'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Chen v. Holder, 703 F.3d 17,
21 (1st Cir. 2012) (quoting INS v. Elias–Zacarias, 502 U.S. 478,
481 (1992)). In other words, we will reverse only if the record
would "compel a reasonable factfinder to reach a contrary
determination." Id.The IJ's adverse credibility finding resulted from
several inconsistencies between Guaman's testimony and the
affidavit he submitted in support of his asylum application. Those
inconsistencies are outlined in the decisions of the IJ and BIA,
and we need not describe them in detail here. Guaman attacks the
credibility finding on three grounds: (1) the inconsistencies upon
which the IJ relied are "de minimis"; (2) they are also explained
by Guaman's PTSD diagnosis; and (3) the IJ's failure to provide an
interpreter in Guaman's native dialect was another "possible factor
that impacted his ability to answer questions accurately."
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Guaman's first argument -- that the inconsistencies are
de minimis -- overlooks the fact that this case is governed by the
REAL ID Act, which allows an IJ, considering the totality of the
circumstances and all relevant factors, to base a credibility
determination on "the consistency between the applicant's . . .
written and oral statements . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii). In this case,
however, that does not matter, because the BIA concluded that some
of the problematic testimony did indeed go "to the heart of the
respondent's claim." Having carefully reviewed the record, we
agree. The discrepancies were not minor, and they did not, as
Guaman suggests, relate merely to dates. For example, he offered
conflicting testimony as to whether he ever told anyone about his
political affiliation, whether he was shot at or pistol whipped,
how long he spent in the hospital after that incident, and whether
he attended a crucial political meeting when he was around twelve
years old or around eighteen years old. Such inconsistencies
between a petitioner's statements in his asylum application and his
testimony before the IJ "provide substantial evidence to support an
adverse credibility determination." Phal v. Mukasey, 524 F.3d 85,
89 (1st Cir. 2008).
As for Guaman's claim that his contradictory testimony
was a result of his PTSD, which impacts his ability to remember
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exact dates and details of events, the IJ considered that
explanation and found it insufficient. The IJ noted that Guaman
had been able to recall events and dates with specificity in his
asylum application and thus concluded that Guaman had not "lost
memory of the events to which he testified," but rather had "not
been able to relate these facts in a consistent manner, those being
facts that he did indeed remember." We cannot say that the record
here would "compel a reasonable factfinder to reach a contrary
determination." Chen, 703 F.3d at 21; see also Zeru v. Gonzales,
503 F.3d 59, 71 (1st Cir. 2007) (upholding adverse credibility
determination where IJ considered PTSD diagnosis but found it
insufficient to explain applicant's inconsistent testimony).
Substantial evidence also supports the BIA's conclusion
that the inconsistencies in Guaman's testimony were not caused by
faulty translation during the hearing. We have read the hearing
transcript; this is not a case in which "numerous translation
difficulties" occurred that might undermine the IJ's adverse
credibility finding. Kartasheva v. Holder, 582 F.3d 96, 107 (1st
Cir. 2009). Though Guaman did request a Quichua interpreter in
advance of the hearing, his attorney did not object when the IJ
explained that it had been impossible to locate one and that it
would be necessary to proceed in Spanish, assuming Guaman spoke and
understood the language. In his decision, the IJ then made
specific findings as to the adequacy of the translation,
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emphasizing that he had "paid particular attention to the
translations" and "observed the respondent testifying and
responding to the questions without any doubt at all." As the IJ
pointed out, the only time Guaman indicated that he was having
difficulty understanding the interpreter "was after he had been
caught in [an] inconsistency by the Government lawyer." Once
again, the IJ's findings are "supported by reasonable, substantial,
and probative evidence on the record considered as a whole." Chen,
703 F.3d at 21.
Guaman's situation is certainly unfortunate. He has, in
the IJ's words, "thrived in the United States," and his two
children are United States citizens.2 However, we must afford
deference to the IJ, who "sees and hears the witnesses at first
hand and is in a unique position to evaluate their credibility,"
especially when the IJ supports his credibility "findings with
particularized observations as to demeanor and examples of
inconsistencies and implausibilities." Chen, 703 F.3d at 24. Such
is the case here. We therefore need not reach the IJ's alternate
finding that Guaman failed to establish past persecution on account
of a statutorily protected ground. See Dehonzai v. Holder, 650
F.3d 1, 10 (1st Cir. 2011) (noting that a properly supported
2
We assume that Guaman's criminal record makes him an
unlikely candidate for prosecutorial discretion under the June 2011
Morton Memorandum. See Gasparian v. Holder, 700 F.3d 611, 614 (1st
Cir. 2012).
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adverse credibility determination can defeat a petitioner's claims
for asylum, withholding of removal, and CAT protection).
The petition for review is denied.
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