Martinez v. Holder

Decision Date03 March 2009
Docket NumberNo. 04-72975.,04-72975.
Citation557 F.3d 1059
PartiesSaul Gregorio MARTINEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Kari E. Hong, Law Offices of Helen A. Sklar, Los Angeles, CA, for the petitioner.

Arthur L. Rabin, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-217-803.

Before: HARRY PREGERSON, JOHN T. NOONAN, and STEPHEN S. TROTT, Circuit Judges.

Opinion by Judge TROTT; Dissent by Judge PREGERSON.

TROTT, Circuit Judge:

Saul Martinez, a native of Guatemala, petitions for review of a Board of Immigration Appeals' ("BIA") decision that denied his claims for asylum, withholding of removal, and voluntary departure. In a 2003 decision, this court remanded the matter to the BIA for further proceedings, concluding that it had failed to provide cogent reasons for rejecting Martinez's testimony in support of his application. Martinez v. I.N.S., 72 F. App'x 564 (9th Cir.2003). In its recent decision, the BIA upheld the Immigration Judge's ("IJ") adverse credibility finding regarding Martinez. Martinez also petitions for review of the BIA's decision that denied his motion to reopen to consider his Convention Against Torture claim.

We have jurisdiction over this timely petition, which we deny on both counts.

I

"We review adverse credibility findings under the substantial evidence standard." Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir.2007). "The BIA must have a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief." Valderrama v. I.N.S., 260 F.3d 1083, 1085 (9th Cir.2001) (internal quotation marks omitted). Here, because the BIA failed when it first heard this case to provide specific, cogent reasons to support its initial adverse credibility determination, we remanded to give the BIA the opportunity to provide reasons for its conclusions. See Garrovillas v. I.N.S., 156 F.3d 1010, 1015-16 (9th Cir.1998) (finding that the BIA's decision was not supported by substantial evidence and remanding to the BIA with instructions to provide specific reasons). The BIA has followed our instructions, and we now review its decision.

II

The facts pertaining to Martinez's credibility — or the lack thereof — are striking. In his initial Request for Asylum in the United States dated September 21, 1992, he made the following admittedly false representations under penalty of perjury, declaring that "the above and all accompanying documents are true and correct to the best of my knowledge and belief":

I am seeking Asylum in the US. Because in Guatemala I was threatened by the Gobernment because I was in the University of San Carlos I was Leader of the Students in the University of San Carlos and for this reason the Gobernment persecuted and threatened me, I am afraid to return Guatemala because many of my companions to disappear completely and I can to disappear likewise. I was constantly threatened by the Gobernment and my life was in more danger than the rest of the people of my country. If I didn't leave, I would have been killed.

The constant conflicts that exist in Guatemala no security for anyone. In my case that I belonged to student groups is very hard to live in Guatemala.

. . . .

I was in Student Group of The University of San Carlos during the period between 1986 to Nov. 1991. I was active member. My duties were to organized Political Meeting. And organized to the Students.

. . . .

I was threatened by the Gobernment they have gone on various occasions to my house and the University looking for me. because I was Leader of the Students in the University of San Carlos, causing my life to be threatened to death by the Gobernment.

. . . .

I came to the US. in search of protection of my life, I also came in search of a peaceful life without always having to fear for my life, because in Guatemala my life was in danger, I was always persecuted by the Gobernment.

The next step in what turns out to have been a plot to deceive the Immigration and Naturalization Service, the United States Department of Justice, and the Attorney General was to foil the asylum officer assigned to his case. To accomplish this ruse, he appeared in person before the officer three years after his application and testified under oath — again falsely— that he was the victim of persecution "on account of my political opinion." Moreover, he swore before the officer that the content of his initial request was true. The officer's Assessment Report dated November 14, 1995, demonstrates that his hoax was designed to fit neatly into the requirements of our asylum law. The officer's report reads as follows:

Applicant indicated that he is a 31-year-old male native and citizen of Guatemala who entered the United States on May 14, 1992 at San Ysidro, Ca without inspection.

Applicant fears that he will be killed by the government on account of his political opinion.

Applicant credibly testified that in January 1991, he became a leader in a student club at San Carlos University. Applicant stated that he began having problems due to his political opinion after participating in Mardi Gras type parades with political overtones. Applicant began receiving threatening phone calls in January 1991 and believed that agents of the government were responsible. Applicant did not stated[sic] a political opinion in response to the phone calls. Applicant stated that the calls persisted through June 1991, when Applicant went to visit his parents in Puerto Barrios. Applicant did not expereince [sic] any problems in Puerto Barrios and stated that it was a remote little town far from Guatemala City. In August 1991, Applicant was chased by a car. Applicant was not harmed, although he believed that the government was responsible. In November 1991, Applicant was again chased by a car and shot at. Applicant was not harmed and believed that the government was trying to scare him. Applicant left Guatemala the next day and traveled through Mexico prior to coming to the United States. Applicant further stated that he has a brother, who is currently living in Guatemala City and not experiencing any problems with the Government. Applicant's family is presently living in Puerto Barrios, and not experiencing problems with the government.

Applicant has been threatened on several occasions on account of his political opinion. Threats alone do not constitute persecution. The Applicant has not established a well-founded fear of future persecution. It appears that the threats the Applicant suffered were local in nature. The Applicant was able to live in Puerto Barrios, and not experience problems with the government. Applicant's parents are presently living in Puerto Barrios and not experiencing problems. Applicant has not established that the government has the inclination to pursue him. Applicant can relocate. For the foregoing reasons, Applicant is not eliglible [sic] for asylum in the United States. Assessment is to refer to the Immigration Judge.

(emphasis added).

Three aspects of this report are particularly noteworthy. First, the level of invented detail with which Martinez presented his false claim. Second, his ability to convince an experienced asylum officer that his swindle was credible; and third, Martinez's failure nonetheless to achieve a favorable asylum eligibility recommendation.

Having failed to convince the asylum officer that his phony political persecution story made him eligible for asylum, Martinez simply changed his tune, shed his first yarn, and showed up three months later for a hearing before an IJ, armed with an entirely new ground designed to make him eligible for asylum. No longer had he been a victim of persecution on account of his political opinion. Now, euphemistically calling his bogus initial request "partially incorrect," he averred that he had been persecuted because of his homosexuality.

When confronted at his hearing with his previous story, Martinez conceded that both the elaborate tale he recounted in his initial request and then repeated in person three years later to the asylum officer was a fabrication. He allowed that he had taken an oath to tell the truth to the officer, but that he had lied anyway because his "life was in danger." When pressed, Martinez admitted that the asylum officer had not been intimidating and that he had never had any problem during the four years he had been in the United States with government officials because of his homosexuality.

The context of Martinez's lies under oath to the asylum officer was the subject of direct testimony by the officer, none of which supports the existence of a hostile interview atmosphere which would explain Martinez's adherence to his lies or his alleged fear of danger. The officer's testimony amply supports the IJ's disbelief of Martinez's explanation of his lies. Stating that he specifically recalled Martinez's interview, the officer said:

I, I do swear them in also. I think I stated that also, you know, as I was sworn today stating that he should tell the truth and such. We — I personally explain the procedure trying to make him feel as comfortable as possible letting them know what the next step is in the procedure even prior to getting to the interview. After explaining the procedure we go ahead and verify the biographical data on the I-589, okay, and ask for any other evidence that he may be willing to provide at that time. We assure that the interview is very confidential, that nothing will get back to Guatemala. That's part of the procedure and basically trying to reassure the applicant we're there to help them if we can. So they tell, tell us their complete story and we go, we go ahead over all the biographical information and also the, the...

To continue reading

Request your trial
14 cases
  • Singh v. Eric H. Holder Jr.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 3, 2011
  • In re O.R.E.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • July 21, 2021
    ...of Gomez-Beltran, 26 I&N Dec. 765, 768 (BIA 2016)); see also Singh v. Holder, 643 F.3d 1178, 1182 (9th Cir. 2011); Martinez v. Holder, 557 F.3d 1059, 1065 (9th Cir. 2009). We affirm the Immigration Judge's adverse credibility finding, because it is not clearly erroneous. See 8 C.F.R. § 1003......
  • In re Gomez-Beltran
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 27, 2016
    ...asylum context, courts have noted that the process depends on the alien's fundamental obligation to tell the truth. Martinez v. Holder, 557 F.3d 1059, 1065 (9th Cir. 2009) (stating that the "asylum process is ultimately an honor system" and that the major check on the system is not the "[Im......
  • Singh v. Garland
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 10, 2023
    ... ... Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (standard of ... review for asylum and withholding of removal); Garcia v ... Holder, 749 F.3d 785, 789 (9th Cir. 2014) ("We ... review factual findings, including adverse credibility ... determinations, for substantial ... petitioner's credibility, and must offer ... a specific, cogent reason for any stated disbelief." ... Martinez v. Holder, 557 F.3d 1059, 1060 (9th Cir ... 2009) (quoting Valderrama v. INS, 260 F.3d 1083, ... 1085 (9th Cir. 2001)). "There is no ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT