Rodriguez-Herrera v. Garland
| Decision Date | 22 July 2022 |
| Docket Number | 20-72795 |
| Parties | EVELIN NOHEMI RODRIGUEZ-HERRERA; MAYCKOL ALEXIS MARTINEZ-RODRIGUEZ, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
Submitted June 16, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A208-453-268, A208-453-269
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
Lead Petitioner, Evelin Nohemi Rodriguez-Herrera, and her minor son are citizens of Guatemala.[1] They entered the United States on October 9, 2015 without admission or parole. An Immigration Judge (IJ) denied Rodriguez-Herrera's application for asylum, withholding, and protection under the Convention Against Torture (CAT), and the Board of Immigration Appeals (BIA) affirmed. Now, Rodriguez-Herrera timely petitions on four grounds. First, she contends that the BIA acted as an improper factfinder when it held that the IJ's initial confusion about the identity of the respondents constituted harmless error. Second, she asserts that the IJ was biased and failed to familiarize himself with the record, and, as a result, violated her due process rights. Third, she argues that adverse credibility determinations against her husband and her were not supported by substantial evidence. And fourth, she suggests that the agency failed to consider documentary evidence that would have established eligibility for relief, even disregarding the testimonial evidence.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). We dismiss in part and deny the petition. Questions of law, including due process violations, are reviewed de novo. Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889 (9th Cir. 2018). We review factual findings for substantial evidence. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020). Under this standard, we must uphold the findings unless "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). When applying this standard of review, we may not re-weigh the evidence, Gu v Gonzales, 454 F.3d 1014, 1018-19 (9th Cir. 2006), and may only reverse if no reasonable factfinder could have reached the agency's conclusion, Elias-Zacarias, 502 U.S. at 481. As long as the IJ has provided specific and cogent reasons for finding the applicant not credible, "only the most extraordinary circumstances will justify overturning [the agency's] adverse credibility determination." Shrestha v. Holder, 590 F.3d 1034, 1040-41 (9th Cir. 2010) (quoting Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)).
1. Although both parties agree that the IJ erroneously stated that Rodriguez-Herrera's husband, Wilder Martinez-Lopez, was a respondent in the case before him, the BIA correctly determined that this constituted harmless error, and this decision did not render the BIA an improper factfinder. First, the BIA correctly noted that the IJ was alerted to his mistake by Rodriguez-Herrera's trial counsel and then corrected himself. Second, contrary to Rodriguez-Herrera's claims before this court, the mistaken appellations do not render the decision indecipherable. Moreover, there is no meaningful ambiguity in the portions of the decision relevant to the adverse credibility determination upon which denial of Rodriguez-Herrera's asylum application rests. Thus, the BIA did not act as a factfinder when reviewing the IJ's decision.[2]
2. Rodriguez-Herrera contends that the BIA erred in upholding the IJ's adverse credibility determination because the finding lacked substantial evidence and the IJ improperly relied on her credible fear interview when evaluating alleged inconsistencies. An IJ is not required to interpret evidence as the respondent advocates. See Don v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007). Rather, the IJ must only "consider the petitioner's explanation for any inconsistency" while excluding any "utterly trivial inconsistency that . . . [has] no bearing on a petitioner's veracity." Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014) (alteration in original) (internal quotations omitted) (quoting Shrestha, 590 F.3d at 1043-44). Mere omissions of details are insufficient to uphold adverse credibility determinations. See Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014). But, an IJ may "afford substantial weight" to omissions that relate to events directly experienced by a witness and emerge on direct examination. Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021). Such omissions are all the more significant when they reflect "a much different-and more compelling-story of persecution." Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011).
First, Rodriguez-Herrera fails to challenge the IJ's determination that Martinez-Lopez provided inconsistent and vague testimony regarding the gang affiliations of his persecutors, and thus any challenge is forfeited. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) ().
Second, Rodriguez-Herrera provides only conclusory assertions that the IJ's finding of an inconsistency regarding Martinez-Lopez's salary as a waiter was unsupported by the record. Although Martinez-Lopez did, in fact, provide an explanation that his salary had ranged between 700 and 1000 Quetzales as a waiter, the IJ was not required to accept this explanation. Martinez-Lopez's asylum application explicitly stated that his salary was "only" 700 Quetzales but he knew he needed to pay the extortion money regardless of the hardship it caused. Given the emphasis that Martinez-Lopez placed on his limited income, it was not unreasonable for the IJ to impeach Martinez-Lopez's credibility with the inconsistent, prior statement after he claimed a significantly higher salary during his oral testimony.
Finally Rodriguez-Herrera's arguments regarding the motorcycle incident are unpersuasive. The BIA's reason for rejecting the explanation proffered for the incident's omission is plainly supported in the record-at Rodriguez-Herrera's first hearing, the IJ explicitly waived her son's presence at all future hearings. Moreover, Martinez-Lopez's statement that he had relayed the story at an earlier hearing for his own asylum application also belies the couple's assertions during the merits hearing that they agreed not to share the story for fear of traumatizing their son. In short, the addition of the accusation, some two hours into the hearing, would have significantly strengthened the asylum claim, and the BIA did not err in considering its earlier omission when upholding the adverse credibility determination. Together, the inconsistencies and omission identified by the agency constitute substantial evidence to support the determination...
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