Rodriguez-Ramirez v. Garland

• Decision Date: 01 September 2021
• Docket Number: No. 19-70506,19-70506
• Citation: 11 F.4th 1091
• Parties: Jose Geovani RODRIGUEZ-RAMIREZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

11 F.4th 1091

Jose Geovani RODRIGUEZ-RAMIREZ, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-70506

United States Court of Appeals, Ninth Circuit.

Submitted April 15, 2021^* Pasadena, California

Filed September 1, 2021

Areg Kazaryan, Glendale, California, for Petitioner.

Jennifer P. Levings, Senior Litigation Counsel; Erik R. Quick, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Sharon L. Gleason,^** District Judge.

Concurrence by Judge VanDyke

PER CURIAM:

Jose Geovani Rodriguez-Ramirez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals's ("BIA") dismissal of his appeal of an immigration judge's ("IJ") denial of his application for asylum and withholding of removal. Where, as here, the BIA partially adopts the IJ's decision but contributes its own reasoning, we review the BIA's decision along with the IJ's decision, to the extent the BIA adopted it. Sinotes-Cruz v. Gonzales , 468 F.3d 1190, 1194 (9th Cir. 2006) ; Zhi v. Holder , 751 F.3d 1088, 1091 (9th Cir. 2014). We review the agency's factual findings for substantial evidence. Mukulumbutu v. Barr , 977 F.3d 924, 925 (9th Cir. 2020). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

The IJ denied Rodriguez-Ramirez's application on the basis that he was not credible. On appeal to the BIA, the BIA affirmed. Substantial evidence supports the agency's adverse credibility determination.

The BIA and IJ were permitted to afford substantial weight to inconsistencies that "bear[ ] directly on [Rodriguez-Ramirez]’s claim of persecution." Manes v. Sessions , 875 F.3d 1261, 1264 (9th Cir. 2017) (per curiam). Rodriguez-Ramirez testified that he fled to the United States after gang members threatened him outside his daughter's school. He testified that he reported this threat to the local prosecutor the next day, and that the prosecutor prepared a report based on the information Rodriguez-Ramirez provided. Rodriguez-Ramirez also testified that he fled to the United States just days after making the report. Rodriguez-Ramirez did not provide any other corroborating evidence concerning the threats he received. Among other matters, the IJ relied on two inconsistencies concerning the threat and the report, which were supported by the record.

First, despite Rodriguez-Ramirez's testimony in October 2017 that this threat occurred in February 2016, the report he provided from the prosecutor twice stated, on different pages, that the threats occurred in January 2016, and the IJ found that Rodriguez-Ramirez did not have a convincing explanation for the discrepancy. We have recognized that an IJ may rely upon an inconsistency in a "crucial date" concerning "the very event upon which [a petitioner] predicated his claim for asylum." Don v. Gonzales , 476 F.3d 738, 741 (9th Cir. 2007).

Second, Rodriguez-Ramirez testified on direct examination that the gang members showed him a weapon when they made the threat. He did not provide this information to the prosecutor or in his written asylum application. Although "omissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony," this omission concerned the "events and circumstances that ... [Rodriguez-Ramirez] experienced directly," and the additional information was provided on direct, not cross, examination. Lai v. Holder , 773 F.3d 966, 971, 973–74 (9th Cir. 2014) ; see also Iman v. Barr , 972 F.3d 1058, 1067–69 (9th Cir. 2020). In the context of this case, in which this specific event prompted Rodriguez-Ramirez to flee to the United States, the IJ was allowed to afford substantial weight to discrepancies associated with the threat and the documentation Rodriguez-Ramirez personally procured and then submitted to the IJ. See Manes , 875 F.3d at 1264.

The adverse credibility determination is also supported by the IJ's demeanor findings. We have previously explained that the IJ is in the best position to consider a petitioner's demeanor, candor, and responsiveness. Shrestha v. Holder , 590 F.3d 1034, 1041 (9th Cir. 2010). The BIA and IJ did not err in relying on Rodriguez-Ramirez's evasive and unresponsive demeanor while testifying after providing examples of his evasiveness. See Jin v. Holder , 748 F.3d 959, 965 (9th Cir. 2014) (requiring the IJ to "identify the instances where the petitioner is nonresponsive").

Considering the totality of the circumstances, see 8 U.S.C. § 1158(b)(1)(B)(iii) ; Shrestha , 590 F.3d at 1040, the above grounds are sufficient to conclude that substantial evidence supports the adverse credibility determination. Therefore, we need not address the other grounds relied upon by the BIA and IJ. And although the BIA and IJ also pointed to a lack of corroborating evidence, "the IJ was not required to give [Rodriguez-Ramirez] notice and an opportunity to provide additional corroborating evidence" because substantial evidence supports the adverse credibility determination. Mukulumbutu , 977 F.3d at 927 ; see also Wang v. Sessions , 861 F.3d 1003, 1008–09 (9th Cir. 2017). Substantial evidence also supports the BIA's conclusion that without credible testimony, Rodriguez-Ramirez failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft , 348 F.3d 1153, 1156 (9th Cir. 2003).

PETITION FOR REVIEW DENIED.

VANDYKE, Circuit Judge, concurring:

I fully concur with the denial of Petitioner Rodriguez-Ramirez's petition for review and join the majority per curiam opinion. I write separately, however, to explain in more detail how the highly deferential standard of review—which is especially deferential to adverse credibility determinations—dictates the denial of Rodriguez-Ramirez's petition. I also address the intersection between adverse credibility determinations and the agency's reliance on Rodriguez-Ramirez's evasiveness, demeanor, and lack of corroborating evidence.

I.

In March 2016, Rodriguez-Ramirez, a native and citizen of El Salvador, unlawfully entered the United States. Nearly a year later, he applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Rodriguez-Ramirez later testified before the IJ, where he alleged that Salvadoran gangs extorted him for money due to his status as a small business owner. But some of his details didn't add up, and, as the IJ observed, he proffered several evasive and unresponsive answers.

At the outset, Rodriguez-Ramirez provided inconsistent information about his past residences. In his asylum application, Rodriguez-Ramirez wrote that he attended a university in the El Salvador department of La Libertad from 2000 to 2005. But before the IJ, Rodriguez-Ramirez testified that he only lived in La Libertad until 1999. When questioned about the discrepancy, Rodriguez-Ramirez explained that he listed the La Libertad address while attending a university "just in case there were anything they were going to send by mail" and that "[i]t was the address of [his] mom's." He further explained that he lived in "[Z]arago[z]a for a time," (a city in La Libertad), but then moments later stated that he did not live in La Libertad after he was 18 because "he lived in San Salvador" (a department neighboring La Libertad). After Rodriguez-Ramirez provided several apparently contradictory answers without further explanation, the IJ observed that "[t]he conflict is clear from the [asylum application]."

Rodriguez-Ramirez also added new details of harassment for the first time while testifying. In his asylum application, Rodriguez-Ramirez listed a previous job he held as a sales supervisor without providing any details. But when cross-examined before the IJ, Rodriguez-Ramirez stated that during this job, he was "frequently ... daily assaulted or threatened" and "kicked out of the area [he] was selling in." When asked if there was a reason that he omitted details of continued assault in his asylum application—the very document instructing applicants to list such incidents—Rodriguez-Ramirez replied, "[n]o. There's no reason" because he "felt like ... it's common knowledge everywhere the social situation there."

Rodriguez-Ramirez also conceded that he could not provide evidence of the documented threats he received while operating his business in El Salvador. He testified that, beginning in March 2015, he owned and operated a fast-food restaurant where the gangs extorted him for money. He explained that he would regularly receive threatening notes at his house reminding him to pay the extortion demands. But then he said that he didn't know what he did with those notes, and he didn't report the extortion demands to the authorities. And when asked if "there [are] any records, any documentation that you have about what you say was the fast[-]food business," he replied "[j]ust a type of lease contract." But he failed to include this lease in his application, despite submitting numerous other documents.

Finally, Rodriguez-Ramirez provided inconsistent testimony about the very encounter that instigated his departure from El Salvador. In November 2015, after months of allegedly receiving threatening notes and in-person visits at his fast-food restaurant, Rodriguez-Ramirez closed shop. He also moved and changed his phone number to avoid future contact with the gangs. But in February 2016 (or so he repeatedly claimed), he received a threatening note reminding him about his "debts." Like the previous notes, he neither saved this note nor reported it to the police. Around that same time, he claimed that several people approached him at his daughter's school, showed him a gun, and demanded payment. The next day, Rodriguez-Ramirez reported this incident directly to the District Attorney and left El Salvador shortly thereafter.

But according to Rodriguez-Ramirez, it was...