Fernando Gamez-Montoya v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO ALONSO GAMEZ- No. 19-71468
MONTOYA, AKA Fernando Gamez-
Montoya, Agency No. A202-013-861
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2021**
San Francisco, California
Before: SCHROEDER and BADE, Circuit Judges, and JACK,*** District Judge.
Fernando Alonso Gamez-Montoya, a native and citizen of Mexico, petitions
*
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).
***
The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an
immigration judge’s (“IJ”) denial of his application for withholding of removal and
relief under the Convention Against Torture (“CAT”). We review the agency’s
“legal conclusions de novo and its factual findings for substantial evidence.”
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)
(citations omitted). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the
petition for review.
1. Substantial evidence supports the IJ’s adverse credibility
determination. The IJ found material, non-trivial inconsistencies between Gamez-
Montoya’s hearing testimony and his February 2015 credible fear interview with a
law enforcement officer, in which he stated that he was “not at all” fleeing from
any problems in Mexico and that he crossed the border simply “[b]ecause it is nice
to be over here compared to being in Mexico.” While Gamez-Montoya offers
alternative explanations for these statements, nothing in the record compels us to
adopt a conclusion contrary to that of the BIA. See Pedro-Mateo v. I.N.S., 224
F.3d 1147, 1150 (9th Cir. 2000) (“[F]or us to disturb the Board’s decision, [a
petitioner] must show that the evidence not only supports . . . but compels
reversal.” (quotation marks and citation omitted)).
Moreover, Gamez-Montoya’s multiple voluntary returns to Mexico during
the period when he was supposedly experiencing threats were inconsistent with his
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statements to the IJ that he feared returning to Mexico. See Loho v. Mukasey, 531
F.3d 1016, 1017–18 (9th Cir. 2008) (“It is well established . . . that an alien’s
history of willingly returning to his or her home country militates against a finding
of past persecution or a well-founded fear of future persecution.”). As was his
failure to apply for asylum during any of his previous crossings into the United
States. Again, while Gamez-Montoya offers alternative explanations for his
behavior, no evidence compels a finding that the BIA’s adverse credibility
determination was error. Accordingly, we reject Gamez-Montoya’s argument that
the agency’s adverse credibility determination was unsupported by substantial
evidence.1
2. Substantial evidence supports the BIA’s conclusion that Gamez-
Montoya failed to demonstrate that he was more likely than not to be tortured by or
with the acquiescence of a public official if he returned to Mexico. Gamez-
Montoya argues that the agency improperly denied his CAT claim based solely on
the adverse credibility finding. It is true that “an adverse credibility finding in the
asylum context does not end the [CAT] inquiry,” Taha v. Ashcroft, 389 F.3d 800,
802 (9th Cir. 2004) (per curiam), because a petitioner could still demonstrate CAT
eligibility if the remaining record evidence, “standing alone, compel[s] the
1
Apart from his challenge to the adverse credibility finding, Gamez-
Montoya does not address the merits of the denial of his application for
withholding of removal.
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conclusion that [he] is more likely than not to be tortured,” Dhital v. Mukasey, 532
F.3d 1044, 1051 (9th Cir. 2008) (quotation marks and citation omitted) (second
alteration in original).
But the BIA did not base its decision regarding Gamez-Montoya’s CAT
claim exclusively on the adverse credibility finding. Rather, it held that “the
evidence of record does not meet the applicant’s burden to show that, if removed to
Mexico, he would more likely than not be tortured at the instigation or with the
acquiescence . . . of a public official acting in his or her official capacity.” Thus,
while the BIA did recognize that Gamez-Montoya’s arguments for CAT relief
relied on his own “testimony[,] which the [IJ] found not credible,” it also indicated
that it considered all the evidence in the record. See Szonyi v. Whitaker, 915 F.3d
1228, 1258 (9th Cir. 2019) (“[T]his court generally presumes that the BIA
thoroughly considers all relevant evidence in the record.”).
Gamez-Montoya argues that the BIA ignored evidence of past torture in the
form of threats to inflict physical pain. But the BIA was not required to consider
this issue because Gamez-Montoya failed to first raise it before the IJ. See
Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019). While Gamez-Montoya
points to additional evidence to dispute the BIA’s rejection of his CAT claim, this
evidence consists of generalized descriptions of corruption, organized crime, and
political violence, and a handful of statements from Gamez-Montoya’s friends and
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relatives describing threats of violence based on “political differences.” Nothing in
this evidence “compels the conclusion that [Gamez-Montoya] is more likely than
not to be tortured” if he returns to Mexico. Dhital, 532 F.3d at 1051.
PETITION DENIED.
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