Ezra Maling v. Matthew Whitaker

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EZRA DAVE GIPAN MALING, No. 16-70634
Petitioner, Agency No. A089-970-570
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 2, 2019**
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Ezra Dave Gipan Maling, a native and citizen of the Philippines, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying adjustment of status;
cancellation of removal for permanent and nonpermanent residents; voluntary
*
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).
departure; waivers under 8 U.S.C. §§ 1227(a)(1)(E), (H) and 1182(i); withholding
of removal; and protection under the Convention Against Torture (“CAT”). We
have jurisdiction under 8 U.S.C. § 1252. We deny in part and dismiss in part.
1. Maling challenges the IJ’s adverse credibility determination, which the
BIA affirmed. We “must uphold [the adverse credibility determination] unless the
evidence compels a contrary result.” Singh v. Holder, 643 F.3d 1178, 1180 (9th Cir.
2011). We reject Maling’s contentions that the agency misconstrued his testimony
or disregarded corroborating evidence. The BIA based its decision on multiple
inconsistencies between Maling’s testimony and other documentary and testimonial
evidence in the record as well as the implausibility of Maling’s explanations for the
inconsistencies. The evidence on which Maling relies and the record as a whole do
not compel a result contrary to that reached by the BIA. See Singh-Kaur v. INS, 183
F.3d 1147, 1149–50 (9th Cir. 1999).
In light of the adverse credibility determination, the record supports the
agency’s finding that Maling is removable for attempting to procure an immigration
benefit by willfully misrepresenting a material fact in his 2015 naturalization
interview. See 8 U.S.C. § 1227(a)(1)(A) (alien who is inadmissible at the time of
entry or adjustment of status is removable); 8 U.S.C. § 1182(a)(6)(C)(i) (alien who
seeks an immigration benefit by willfully misrepresenting a material fact is
inadmissible).
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2. We are not persuaded by Maling’s contentions that the agency’s
discretionary denials of adjustment of status; cancellation of removal for permanent
and nonpermanent residents; voluntary departure; and waivers under 8 U.S.C.
§§ 1227(a)(1)(E), (H) and 1182(i) were based on legal or constitutional errors. See
Corona-Mendez v. Holder, 593 F.3d 1143, 1146 (9th Cir. 2010) (the court has
jurisdiction to review a discretionary determination listed at 8 U.S.C.
§ 1252(a)(2)(B) only if it involves constitutional claims or questions of law). Given
this determination, we need not address Maling’s challenge to the agency’s alternate
ground for denying adjustment of status.
3. Substantial evidence supports the agency’s determination that Maling
is ineligible for withholding of removal because there are serious reasons to believe
he committed a serious nonpolitical crime before entering the United States. See 8
U.S.C. § 1231(b)(3)(B)(iii). The record includes a criminal complaint, arrest
warrants, news reports, and testimony indicating Maling has been charged with the
murder of his girlfriend in the Philippines, and Maling points to no contrary evidence
other than his own testimony, which the agency found lacked credibility. See Silva-
Pereira v. Lynch, 827 F.3d 1176, 1188–90 (9th Cir. 2016) (denying review where
record included criminal indictment and sworn statements specifically linking alien
to the crime in question).
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To the extent that Maling challenges whether the criminal proceeding
documents from the Philippines were properly authenticated, we lack jurisdiction to
consider this contention because Maling did not raise it before the agency. See Tijani
v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010). Further, nothing in the BIA’s
decision indicates it relied on the memorandum of investigation prepared by an
Immigration and Customs Enforcement agent following his interrogation of Maling.
Therefore, Maling’s due process claim regarding that memorandum fails. See
Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-
process claim, a petitioner must demonstrate both a violation of rights and
prejudice.”).
4. Substantial evidence also supports the agency’s denial of CAT relief.
The record evidence, including testimony from Maling’s family and the U.S.
Department of State Country Reports on Human Rights Practices, does not compel
the conclusion that Maling is more likely than not to be tortured by or with the
acquiescence of public officials in the Philippines. See Garcia-Milian v. Holder,
755 F.3d 1026, 1033 (9th Cir. 2014).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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