Zaruma-Guaman v. Wilkinson

United States Court of Appeals
For the First Circuit
No. 20-1533
LUIS ALFREDO ZARUMA-GUAMAN,
Petitioner,
v.
ROBERT M. WILKINSON,*
Acting United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.
Kevin P. MacMurray and MacMurray & Associates on brief for
petitioner.
Matthew B. George, Senior Litigation Counsel, Office of
Immigration Litigation, Jeffrey Bossert Clark, Acting Assistant
Attorney General, Civil Division, U.S. Dep't of Justice, and
Anthony P. Nicastro, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Robert M. Wilkinson has been substituted for former
Attorney General William P. Barr as the respondent.
February 9, 2021
SELYA, Circuit Judge. The petitioner, Luis Alfredo
Zaruma-Guaman, entreats us to set aside a decision of the Board of
Immigration Appeals (BIA), which affirmed the denial of his
application for asylum, withholding of removal, and other relief.
The BIA decision rested largely on a credibility determination
made by the immigration judge (IJ). Mindful that such
determinations, when made by a judicial officer who has the benefit
of seeing and hearing the witness testify at first hand, deserve
a considerable measure of deference, we deny the petition for
judicial review.
I. BACKGROUND
We start by briefly rehearsing the relevant facts and
travel of the case. The petitioner is an Ecuadorian national who
entered the United States without a valid entry document on
November 4, 2014. He did not get very far: he was apprehended
near the southern border later that day. At the time, the
petitioner was twenty years old.
The petitioner was interviewed by a border patrol agent
the following day. When the interview commenced, the petitioner
swore that his responses would be truthful. Asked whether he was
in fear of persecution or torture in Ecuador, the petitioner
responded in the negative. The interview was recorded in an
official report, which the petitioner subsequently refused to
sign. This report was titled "Record of Sworn Statement in
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Proceedings under Section 235(b)(1) of the Act," and we will refer
to it as the "sworn statement report."
The petitioner was detained, and the Department of
Homeland Security (DHS) issued an expedited removal order. Later
— the record is tenebrous as to the precise date — the petitioner
expressed a fear of persecution should he be repatriated, and DHS
held a credible fear interview on November 25, 2014. During the
credible fear interview, the petitioner claimed that he had been
mistreated on approximately ten occasions while in Ecuador by
people in his neighborhood and at work. He described being
punched, kicked, and insulted due to his indigenous ethnicity
(Quechuan) and a podiatric condition. He also claimed that he
feared future harm on account of his political affiliation with
the Pachacuti party. The petitioner explained that he was unable
to report the abuse to the police because he would have been
mistreated (although he never said by whom). When asked whether
his family members who continued to live in Ecuador had been harmed
or threatened, he replied only that his aunt had nearly been shot
three months earlier. He speculated that the assault on his aunt
was perpetrated by her own grandchildren, whom he alleged to be
gang members.
Following the credible fear interview, DHS cited the
petitioner as removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and
served him with a Notice to Appear on December 9, 2014. The
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petitioner conceded removability and cross-applied for asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture (CAT). In support, he submitted an
affidavit stating that he had been afraid to report his abuse to
the Ecuadorian authorities because "the police are corrupt."
The petitioner was released on bond in January of 2015.
Hearings were held over a span of more than three years, during
which time the case was transferred to Boston, Massachusetts. The
petitioner testified at the last hearing (April 20, 2018) that he
had been bullied since the age of ten until the time he left
Ecuador and that the attacks on him sometimes occurred as often as
weekly. He added that he did not go to the Ecuadorian police
because they "don't do anything." On cross-examination, though,
he admitted that he had gone to the police two or three times, but
said that he was ignored. He also acknowledged that he had never
sought medical treatment as a result of the alleged abuse.
In due course, the IJ denied the petitioner's cross-
applications for relief and ordered him removed to Ecuador. The
IJ's denial rested mainly on an adverse credibility determination.
The IJ explained, inter alia, that the petitioner's inconsistent
stories about whether or not he had reported the alleged abuse to
the police threw shade on all of his testimony. These
inconsistencies, coupled with the absence of any meaningful
corroboration, prompted the IJ to invoke the maxim "falsus in uno,
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falsus in omnibus" and made it impossible to find that the
Ecuadorian government had denied the petitioner assistance. In
light of this adverse credibility determination, the IJ found no
credible evidence to support the petitioner's claims of either
past persecution or a well-founded fear of future persecution.1
Nor did the relevant country conditions reports prepared by the
State Department indicate that it was more likely than not that
the petitioner, if repatriated, would be tortured either at the
instigation or with the acquiescence of Ecuadorian officials.
Because the IJ found that nothing in the record showed that the
petitioner had suffered harm or torture by or with the acquiescence
of the Ecuadorian government, his claim for CAT protection
foundered.
The petitioner appealed to the BIA, training his sights
on the adverse credibility determination. He argued that his
testimony was consistent and that any discrepancies were
inconsequential. Moreover, he belatedly explained that he had
gone to the Ecuadorian police in several instances — but because
1For the sake of completeness, we note that the IJ accepted
the fact that the petitioner was of indigenous ethnicity but found
no credible evidence in the record to support either the
petitioner's purported involvement with the Pachacuti party or his
putative disability. With respect to the latter, the IJ observed
that the petitioner had access to pro bono medical care while in
the United States but had failed to obtain a medical report to
corroborate his claimed disability. The IJ added that, having
watched the petitioner walk into the courtroom, he could not say
that the petitioner had any disability at all.
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they did not want to help him, he was unable to file a report.
Relatedly, he claimed that the absence of any official report was
what he meant to convey when he testified that he had never gone
to the police. In a secondary line of attack, the petitioner
argued that the IJ should not have considered the sworn statement
report prepared by border officials following his initial
interview because he had refused to sign it.
The petitioner's importunings were for naught. The BIA
dismissed his appeal, discerning no clear error in the IJ's
decision. Indeed, the BIA echoed the IJ's criticisms of
inconsistencies both within the petitioner's testimony and between
his testimony and his earlier statements. And, finally, the BIA
— like the IJ — remarked the lack of any corroborating evidence to
buttress the petitioner's claims.
This timely petition for judicial review followed.
II. ANALYSIS
In this case, the BIA relied largely on the IJ's
decision. Following a well-beaten path, we treat the BIA's
decision and the IJ's decision as a unit in connection with our
review. See Loja-Tene v. Barr, 975 F.3d 58, 60 (1st Cir. 2020).
The petitioner's principal assignment of error relates
to the denial of his claim for asylum. To obtain a grant of
asylum, an alien must carry the burden of showing that he qualifies
as a "refugee" within the meaning of the Immigration and
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Nationality Act. 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A); see
Rivera-Coca v. Lynch, 844 F.3d 374, 378 (1st Cir. 2016). As
relevant here, achieving this benchmark requires the petitioner to
show that he is unable or unwilling to return to his homeland on
account of either past persecution or a well-founded fear of future
persecution. See Rivera-Coca, 844 F.3d at 378. Both corridors
lead directly to the same destination: a showing of past
persecution engenders "a rebuttable presumption . . . that [the
alien] will suffer future persecution . . . ." Id. at 378-79
(citing Palma-Mazariegos v. Gonzales, 428 F.3d 30, 34 (1st Cir.
2005)).
As phrased, the petitioner's challenge to the denial of
asylum stands or falls on the IJ's adverse credibility
determination (which was upheld by the BIA). Such a determination
is a finding of fact, see Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st
Cir. 2009), and the petitioner does not allege any independent
error of law. His claim is, therefore, subject to review under
the substantial evidence rubric. See id.The substantial evidence rubric is both familiar and
straightforward. As long as the agency's credibility
determination is "supported by reasonable, substantial, and
probative evidence on the record considered as a whole," we must
accept it. Id. (quoting Segran v. Mukasey, 511 F.3d 1, 5 (1st
Cir. 2007)). The extent to which this standard is deferential
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bears emphasis: "absent an error of law, we will reverse only if
the record is such as to compel a reasonable factfinder to reach
a contrary determination." Chhay v. Mukasey, 540 F.3d 1, 5 (1st
Cir. 2008) (citing Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.
2007)).
Congress has limned a constellation of factors on which
an IJ may base a credibility determination:
[T]he demeanor, candor, or responsiveness of
the applicant or witness, the inherent
plausibility of the applicant's or witness's
account, the consistency between the
applicant's or witness's written and oral
statements (whenever made and whether or not
under oath, and considering the circumstances
under which the statements were made), the
internal consistency of each such statement,
the consistency of such statements with other
evidence of record (including the reports of
the Department of State on country
conditions), 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). Once properly made, "an adverse
credibility determination may doom an alien's claim for asylum."
Segran, 511 F.3d at 5 (citing Pan, 489 F.3d at 86; Stroni v.
Gonzales, 454 F.3d 82, 89 (1st Cir. 2006)).
In arguing against the adverse credibility determination
here, the petitioner first suggests that the inconsistencies
identified by the agency are not inconsistencies at all. This
suggestion is flatly belied by the record: the discrepancies
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pointed out by the IJ are apparent,2 and they supply specific
reasons to warrant a finding that the petitioner testified
untruthfully regarding facts related to the merits of his claims
for relief. No more is exigible to debunk the suggestion that
discrepancies did not exist. See Zeru v. Gonzales, 503 F.3d 59,
69-70 (1st Cir. 2007); Zheng v. Gonzales, 464 F.3d 60, 63-64 (1st
Cir. 2006).
The petitioner's next contention is equally unavailing.
He says that the inconsistencies, even if manifested in the record,
are "a very small portion of the testimony" and represent "innocent
mistake[s]" that are "wholly inadequate" to support an adverse
credibility determination. This contention presumably attempts to
draw sustenance from the so-called "heart of the matter" rule,
under which inconsistencies were required to be central to an
alien's claim in order to impugn his credibility. See Rivas-Mira,
556 F.3d at 4-5. But Congress — well before the proceedings in
this case — consigned the "heart of the matter" rule to the scrap
2 Most importantly, the IJ showcased a host of inconsistencies
concerning whether or not the petitioner had reported his alleged
abuse to the police. Both during his credible fear interview and
on direct examination, the petitioner denied ever going to the
police to report the abuse. In the same vein, both in his asylum
application and in the accompanying affidavit, the petitioner
recounted how fear of possible mistreatment had kept him from going
to the police. During cross-examination, however, he changed his
tune and vouchsafed that he had gone to the police two or three
times to report the abuse. So viewed, the inconsistencies are
stark.
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heap by passing the REAL ID Act. See id. at 4. The REAL ID Act,
which governs this case, replaced the "heart of the matter" rule
with a totality-of-the-circumstances approach. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). For present purposes, then, the "heart of
the matter" rule is a dead letter.
We add, moreover, that whether the inconsistencies are
the product of mistake or mendacity is not dispositive. On this
petition for review, our singular focus is whether, in light of
the record as a whole, the inconsistencies are of a type and kind
that substantially support the IJ's adverse credibility
determination. We think it clear that the inconsistencies apparent
in this record pass through this screen.
Grasping for straws, the petitioner submits that because
the IJ did not make any express comment about the petitioner's
demeanor, the adverse credibility determination stands on shaky
ground. We do not agree. A witness's demeanor is, of course, a
relevant integer in the credibility calculus and — as a general
matter — a judicial officer who sees and hears a witness has a
superior coign of vantage in assessing that witness's credibility.
See Jianli Chen v. Holder, 703 F.3d 17, 24 (1st Cir. 2012). Even
so, specific findings about a witness's demeanor are not essential
to an adverse credibility determination.3 See id. (describing IJ's
3 The petitioner cites Ly v. Mukasey, 524 F.3d 126, 131 (1st
Cir. 2008), in which we state that "[w]hen a credibility
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observations of witness's demeanor as merely "fortif[ying]"
credibility determination); cf. United States v. Rodriguez-
Estrada, 877 F.2d 153, 158 (1st Cir. 1989) (describing jurors as
"the judges of the witnesses' demeanor and credibility" even though
jurors make no specific findings about a witness's demeanor).
So, too, the petitioner offers no authority to support
his ipse dixit that the agency should not have considered as
evidence the sworn statement report prepared by border agents
because the petitioner later refused to sign it. This argument
amounts to deeming the evidence as inadmissible hearsay — but as
the petitioner's statement was contained in an official report
made in the course of agency business, see 8 U.S.C.
§ 1225(b)(1)(A), the argument fails. See Ye v. Lynch, 845 F.3d
38, 44 (1st Cir. 2017)(affirming IJ's reliance on sworn statement
report); see also Arias-Minaya v. Holder, 779 F.3d 49, 54 (1st
Cir. 2015) (explaining that "it is settled beyond hope of
contradiction that in reviewing requests for discretionary relief,
immigration courts may consider police reports even when they rest
largely on hearsay"); cf. Fed. R. Evid. Rule 803(8) (memorializing
exception to hearsay rule for public records).
determination is based on discrepancies in an alien's testimony
rather than on h[is] demeanor while testifying, . . . , the IJ's
conclusion that []he was not credible is entitled to less
deference." Ly 524 F.3d at 131. This distinction is irrelevant
where, as here — and unlike in Ly itself — the discrepancy in the
testimony is patent. See id.- 12 -
Here, the sworn statement report bore sufficient indicia
of reliability. For one thing, the petitioner does not refute
that the report is in fact a sworn statement, as he himself
promised under oath that it would be at the beginning of the
interview. For another thing, the sworn statement report bore the
contemporaneously affixed signature of a third-party witness. And
in any event, the fact that the petitioner refused to sign the
sworn statement report after it was prepared goes to its weight,
not to its admissibility. See 8 U.S.C. § 1158(b)(1)(B)(iii)
(authorizing admission in immigration proceedings of "statements
(whenever made and whether or not under oath . . . )"); Martinez
v. Holder, 734 F.3d 105, 112-13 (1st Cir. 2013) (finding report of
interview unsigned by interviewee to constitute reliable evidence
in immigration proceeding).
The petitioner also suggests that a statement made in
his credible fear interview should not have been given any weight
because the interview notes contain a disclaimer to the effect
that the document is not a verbatim transcript of the interview.
But "[s]trict rules of evidence do not apply in immigration
proceedings," Jianli Chen, 703 F.3d at 23 (citing Henry v. INS, 74
F.3d 1, 6 (1st Cir. 1996)), and the broad authority conferred by
section 1158(b)(1)(B)(iii) permits an immigration court to
consider such interview reports, whether or not verbatim
transcripts, so long as they are compiled in the ordinary course
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of an agency's business and the IJ finds them likely to be accurate
accounts of what was stated. See Jiao Hua Huang v. Holder, 620
F.3d 33, 37 (1st Cir. 2010); Pan, 489 F.3d at 86.
The petitioner has a fallback position: he says that he
adequately explained his inconsistencies. But even though the
petitioner did offer an explanation, not all explanations are
sufficient to relieve an alien of the consequences of proven
inconsistencies. See id. at 25; Rivas-Mira, 556 F.3d at 5. Here,
the petitioner's explanation was rejected by the IJ, who —
especially in view of the utter lack of any corroboration —
impliedly found it to be threadbare and unconvincing. Given the
weakness of the explanation, the IJ's rejection of it was
reasonable. We conclude, without serious question, that the record
does not compel a contrary finding. The circumstances relevant to
this conclusion include the fact that, on various occasions, the
petitioner claimed that fear impelled him to stay away from the
police and on other occasions claimed that he went to the police
(albeit without success). These are irreconcilably different
narratives on a plainly relevant point — and the petitioner's
proffered explanation does nothing to reconcile them.
In the last analysis, it is the purview of the IJ, within
wide limits, to accept or reject an explanation for demonstrated
testimonial inconsistencies. Chen v. Gonzales, 418 F.3d 110, 114
(1st Cir. 2005) ("That the IJ might have accepted [the
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petitioner's] explanations of his inconsistencies is not to say
she was required to do so.") Those limits were not exceeded (or
even closely approached) in the case at hand. Thus, the IJ's
adverse credibility determination is supported by substantial
evidence in the record, and the BIA's denial of the petitioner's
asylum claim must be upheld.
We need go no further. The petitioner's claim for
withholding of removal requires a showing of a clear probability
that, if repatriated, he would be persecuted on account of a
protected ground. See 8 U.S.C. § 1231(b)(3)(A); Cabas v. Holder,
695 F.3d 169, 173 (1st Cir. 2012). Because the petitioner has
failed to satisfy the less stringent standard required for asylum,
his counterpart claim for withholding of removal necessarily
fails. See Rivera-Coca, 844 F.3d at 378. And as for his CAT
claim, the petitioner makes no developed argument in this venue
that any evidence in the record demonstrates that he either has
been tortured or, if repatriated, is in danger of being tortured
by or with the acquiescence of the Ecuadorian government. Hence,
we deem his claim for CAT protection abandoned. Ahmed v. Holder,
611 F.3d 90, 98 (1st Cir. 2010) (reaching similar result based on
"the venerable precept that appellate arguments advanced in a
perfunctory manner, unaccompanied by citations to relevant
authority, are deemed waived") (quoting Jiang v. Gonzales, 474
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F.3d 25, 32 (1st Cir. 2007) and United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990)).
III. CONCLUSION
For the reasons elucidated above, we deny the petition
for judicial review.
So Ordered.
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