Jorge Perez-Rojas v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
MAR 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE YURI PEREZ-ROJAS, AKA No. 14-70405
Jorge Yuri Perez,
Agency No. A073-847-494
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2016
Pasadena, California
Before: REINHARDT, TASHIMA, and PAEZ, Circuit Judges.
Jorge Perez-Rojas (“Perez-Rojas”), a native and citizen of Peru, petitions for
review of his 2014 removal order. The Board of Immigration Appeals (“BIA”)
adopted and affirmed the Immigration Judge’s (“IJ”) decision finding Perez-
Rojas’s 2012 testimony incredible and denying his application to adjust status
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
finding him inadmissible under INA § 212(a)(3)(E)(iii) (“torture bar”) for having
committed acts of torture while in the Peruvian military. We have jurisdiction
pursuant to 8 U.S.C. § 1252 and we deny Perez-Rojas’s petition for review in part,
grant in part, and remand to the BIA.
1. Credibility
We review the IJ and BIA’s adverse credibility finding for substantial
evidence. See e.g., Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009).
“Under the substantial evidence standard, an adverse credibility finding is
‘conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.’” Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013) (quoting Rizk
v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011)). However, where an IJ or the BIA
bases its adverse credibility on inconsistencies between a petitioner’s accounts, the
adverse credibility ruling will only be upheld if the identified inconsistencies go to
the heart of the claim.1 Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004)
(superseded by statute). Finally, “[a]n adverse credibility finding is improper when
an IJ fails to address a petitioner’s explanation for a discrepancy or inconsistency.”
Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004) (superseded by statute on other
1
Perez-Rojas filed his application prior to May 11, 2005, and therefore the
new standards related to credibility determinations promulgated under the REAL
ID Act of 2005 do not apply to this case.
2
grounds). Where, as here, the BIA expressly adopted and affirmed the decision of
the IJ, but also added its own reasons, we review both the IJ’s and the BIA’s
decisions. See, e.g., Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005).
Perez-Rojas challenges the IJ’s adverse credibility finding on two grounds.
First, he asserts that the IJ based his adverse credibility finding on inconsistencies
that did not to go the heart of his adjustment of status claim. Second, he argues
that the IJ erred when he failed adequately to address his explanation for what he
argues is the single-material inconsistency in his testimony—whether he
committed acts of torture while serving in the Peruvian military.
Perez-Rojas’s contentions are unavailing; substantial evidence supports the
IJ’s and BIA’s adverse credibility finding. First, the IJ found Perez-Rojas’s 2012
testimony not credible because it was “marked with vagueness, contradiction, and
implausible explanations.” The IJ detailed these ambiguities and inconsistencies in
his decision. The inconsistencies identified by the IJ were material because they
were related to his military service which was at issue. Second, while Perez-Rojas
offered a plausible explanation as to why his testimony regarding his personal
involvement in acts of torture had changed between 2001 and 2012, both the IJ and
the BIA addressed why they found this explanation unconvincing. Contra Kaur,
379 F.3d at 887.
3
2. Coercion/Duress Exception to the Torture Bar
Although we affirm the agency’s adverse credibility finding, we
nevertheless grant Perez-Rojas’s petition for review in part and remand to the BIA.
Following argument, we ordered supplemental briefing on an issue not addressed
in the opening brief, i.e., whether there is a coercion/duress exception to the torture
bar (INA § 212(a)(3)(E)(iii)), see Negusie v. Holder, 555 U.S. 511 (2009), and if
so, whether it should apply to Perez-Rojas. In its supplemental brief, the
government argues that Perez-Rojas failed to exhaust administrative remedies on
the issue of coercion/duress and we therefore lack jurisdiction to consider this
issue. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We disagree;
Perez-Rojas satisfactorily raised the issue in his brief on appeal to the BIA. See,
e.g., Vizcarra–Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.2008).
Having found Perez-Rojas’s 2012 testimony not credible, the IJ relied on his
testimony from 2001 to determine his eligibility for adjustment of status. In 2001,
the IJ found his testimony credible and that determination was not challenged by
the parties nor disturbed by the BIA on appeal. On the basis of his 2001 testimony,
the IJ concluded that Perez-Rojas was ineligible to adjust status because he had
committed acts of torture while serving in the Peruvian military. However, during
his 2001 testimony, Perez-Rojas testified that he probably would have been killed
4
or put in prison if he refused to obey his commanding officer’s orders to torture
people. Moreover, it appears that while Perez-Rojas served in the military, he did
so as the lowest possible rank of soldier. As a result, and in light of the concerns
expressed by the Court in Negusie relating to the persecutor bar, there are strong
arguments that the torture bar should be interpreted to recognize an exception for
someone who is coerced or acts under duress when committing acts of torture.
In Negusie, the Supreme Court held that the BIA erred in assuming that the
persecutor bar applied even if the individual’s participation in persecution “was
coerced or otherwise the product of duress.” 555 U.S. at 514. In turn, “because
there is substance to both” the idea that a coercion/duress exception exists and the
idea that it does not, the Court remanded to the BIA to determine whether the
persecutor bar should consider the voluntariness of the individual’s conduct. Id. at
517, 524. Given that the text of the torture bar is nearly identical to that of the
persecutor bar, Negusie likewise compels the BIA to consider whether there is a
coercion/duress exception to the torture bar. See Negusie, 555 U.S. at 524. This is
true, especially, here, where Perez-Rojas testified credibly that he was likely facing
death or imprisonment if he did not follow his superior’s orders. Moreover, in
2012, the IJ made an alternative finding that if Perez-Rojas were not inadmissible
under the torture bar, he would, as a matter of discretion, grant the respondent
5
relief in the form of adjustment of status. As a result, whether there is an exception
to the torture bar is of paramount importance for Perez-Rojas.
In sum, we deny Perez-Rojas’s petition for review in part, grant it in part,
and remand to the BIA to address in the first instance whether there is a
coercion/duress exception to the torture bar (INA § 212(a)(3)(E)(iii)). Further, if
the BIA concludes that there is a coercion/duress exception to the torture bar, it
should also address whether, on the existing record, such an exception would apply
to Perez-Rojas or the matter should be remanded to the IJ for further fact-finding.
Petition DENIED in part, GRANTED in part, and REMANDED.
1
6