Rios Naranjo v. Garland

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Martin Rios Naranjo, No. 21-147
Petitioner, Agency No. A075-112-275
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.
Martin Rios Naranjo, a native and citizen of Mexico, petitions for review
of a decision of the Board of Immigration Appeals dismissing his appeal from
an immigration judge’s denial of his application for protection under the
Convention Against Torture (CAT). Because the Board adopted the
immigration judge’s decision by citing Matter of Burbano, 20 I. & N. Dec. 872*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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(B.I.A. 1994), we review both decisions. Aguilar Fermin v. Barr, 958 F.3d 887,
891 (9th Cir. 2020). We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition.
1. We will uphold an adverse credibility determination so long as the
“totality of the circumstances” provides substantial evidence for it. Alam v.
Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc); see also Kumar v.
Garland, 18 F.4th 1148, 1156 (9th Cir. 2021). Under the substantial-evidence
standard, we must accept the agency’s factual findings “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Garland v. Ming
Dai, 141 S. Ct. 1669, 1677 (2021) (quoting 8 U.S.C. § 1252(b)(4)(B)).
The immigration judge identified two significant inconsistencies in Rios’s
testimony. First, Rios testified inconsistently about whether police or armed
civilians attacked him when he was kidnapped in January 2017. His written
declaration recounted, “I struggled with the police and then 4 armed civilians
got into the truck and began to beat me with their rifles until I was
unconscious.” But he later testified that “[t]he police” hit him. Rios argues that
he was using the word “civilian” to refer to anyone not in the military, a usage
that would not exclude police officers. The immigration judge was not required
to accept that explanation, and it makes little sense given that, within the same
sentence, Rios distinguished “armed civilians” from “the police.” This
inconsistency concerns a key element of Rios’s claim for CAT protection—
whether public officials were complicit in the harm he suffered. See Shrestha v.
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Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010) (“Although inconsistencies no
longer need to go to the heart of the petitioner’s claim, when an inconsistency is
at the heart of the claim it doubtless is of great weight.”).
Second, Rios testified inconsistently about who sent him threatening text
messages beginning in 2020. At the beginning of his testimony, Rios said that
he received messages “asking me to take my life away in the presence of my
children” and that “I don’t know how they were able to detect me. I don’t
know.” Later, Rios agreed that the sender was “[o]f course” his cousin. That
inconsistency also concerned a key element of Rios’s claim.
The immigration judge identified other inconsistencies in Rios’s
testimony and noted that Rios had a criminal record. Assuming without
deciding that those grounds do not support the adverse credibility finding, we
nevertheless conclude that the totality of the circumstances provided substantial
evidence for the finding. Similarly, although the immigration judge erred in
relying on Rios’s failure to corroborate some of his claims without giving him
notice of the need to provide corroborating evidence, the “non-corroboration
grounds” provide substantial evidence for the adverse credibility determination.
Bhattarai v. Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016).
In the absence of credible testimony, Rios did not establish that he is
more likely than not to be tortured if removed to Mexico.
2. We reject Rios’s challenge to the Board’s failure to address his motion
to file a supplemental brief. The supplemental brief argued that Rios retained a
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right to apply for asylum even though his counsel had previously agreed with
the immigration judge’s observation that his criminal history barred him from
seeking asylum. The Board has the power to accept supplemental filings, see,
e.g., 8 C.F.R. §§ 1003.1(e)(9), 1003.3(c)(1), and we have held that it must
exercise its discretion to accept such filings when faced with the opportunity to
do so, Garcia v. Holder, 621 F.3d 906, 913 (9th Cir. 2010). Assuming without
deciding that the Board erred in failing to address Rios’s motion, the error does
not require remand unless it caused prejudice. Zamorano v. Garland, 2 F.4th
1213, 1226, 1228 (9th Cir. 2021).
Rios cannot establish prejudice. The Board addressed the argument in
Rios’s supplemental filing by devoting a section of its decision to explaining
why Rios had waived his asylum claim. Thus, the Board effectively considered
the arguments Rios sought to advance.
Moreover, as the Board explained, Rios did indeed waive his asylum
claim. “Absent egregious circumstances, a distinct and formal admission made
before, during, or even after a proceeding by an attorney acting in his
professional capacity binds his client as a judicial admission.” Matter of
Velasquez, 19 I. & N. Dec. 377, 382 (B.I.A. 1986). Rios has not shown
egregious circumstances here. He has neither made an argument for ineffective
assistance of counsel, nor “offer[ed] evidence proving that ‘the factual
admissions and concession . . . were untrue or incorrect.’” Santiago-Rodriguez
v. Holder, 657 F.3d 820, 832 (9th Cir. 2011) (quoting Velasquez, 19 I. & N.
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Dec. at 383). In particular, Rios does not dispute that he was convicted of an
aggravated felony, which would bar any asylum claim. See 8 U.S.C. §
1158(b)(2)(A)(ii), (b)(2)(B)(i).
The motions to stay removal (Dkt. Nos. 4, 10) are denied.
PETITION DENIED.
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