Ruiz-Colmenares v. Garland

• Decision Date: 09 February 2022
• Docket Number: No. 20-72672,20-72672
• Citation: 25 F.4th 742
• Parties: Juan RUIZ-COLMENARES, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

25 F.4th 742

Juan RUIZ-COLMENARES, Petitioner,

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

No. 20-72672

United States Court of Appeals, Ninth Circuit.

Submitted October 21, 2021^* Pasadena, California

Filed February 9, 2022

Alejandro Cordero Rothstein, The Matian Firm, Los Angeles, California, for Petitioner.

Jennifer A. Bowen, Trial Attorney; Anthony C. Payne, Assistant Director; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Ryan D. Nelson and Lawrence VanDyke, Circuit Judges, and Karen E. Schreier,^** District Judge.

OPINION

VANDYKE, Circuit Judge:

Juan Ruiz-Colmenares (Petitioner) is a Mexican citizen who has illegally entered the United States multiple times, wherein he was convicted for a string of felonies. He has been deported back to Mexico three times. During the processing of his fourth deportation, Petitioner expressed (for the first time) a fear of returning to Mexico and alleged (also for the first time) that he had been robbed and assaulted by police officers in Mexico after each of his prior three deportations.

After finding Petitioner not credible, an Immigration Judge (IJ) rejected his sole claim for relief: deferral of removal under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) affirmed the IJ's decision.¹ Petitioner now argues that (1) the agency lacked jurisdiction because his charging document omitted the time and date of his hearing; and (2) the agency erred in denying him CAT relief. Both arguments are unavailing.

Petitioner's jurisdictional argument is unexhausted because he failed to present it before the IJ or BIA. And the record does not compel reversal of the agency's decision to deny Petitioner's CAT claim. Petitioner's own testimony is the primary support for his claimed past harm, which he never raised during the processing of multiple prior deportations. And when he did finally raise such harms in conjunction with this deportation, he continuously altered his story about those harms in terms of the nature and timing of his injuries. Accordingly, the agency's adverse credibility determination is adequately supported by substantial evidence and no other evidence shows that he faces a particularized risk of torture, much less a risk that surmounts the fifty percent threshold required for CAT relief.

Pursuant to our jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.

I. FACTUAL BACKGROUND

Petitioner has illegally entered the United States four different times and, after brief stays that resulted in multiple criminal convictions, was deported back to Mexico three times (in 1998, 2000, and 2001).² Petitioner's fourth deportation proceeding was initiated in November 2015, when he claimed for the first time that he feared returning to Mexico because he was allegedly robbed and assaulted after each of his prior three deportations.

Petitioner provided inconsistent testimony regarding the extent and timing of his claimed injuries from the robberies in Mexico—from the time he gave his first recitation of the events in November 2015, to his written declaration in December 2016, to his amended declaration in December 2017, to his subsequent oral testimony before the IJ. The main theme of his story is that shortly after each of his prior three deportations he was robbed and assaulted near the border in Tijuana (where it appears Petitioner stayed temporarily as he prepared for his next entry into the United States). And in all three instances the perpetrators were primarily interested in whether Petitioner had money they could take.

1. 1998 Incident

Shortly after Petitioner's first deportation in 1998, he claims that he was detained and assaulted by police officers who, when he failed to produce an ID, threw him in the back of a truck, beat him, detained him for three and a half days without charges, and stole his money and clothes. During his 2017 hearing before the IJ, the primary injury Petitioner recalled from this first incident resulted in his eyebrow being "busted [ ] open," along with "low blows to the ribs" and kidneys and blows to the back of his head. But those details were not included in any of his prior descriptions of the 1998 incident, which noted only that the officers "hit" or "punched" him in the face. In fact, the initial description of this first incident was significantly milder than his later recitations of the event, describing his injuries to the asylum officer as "[n]ot serious just bumps and bruises." A few months after the claimed incident, Petitioner made his second entry into the United States, where he was soon after arrested and convicted for his third domestic violence felony.

2. 2000 Incident

Before the IJ, Petitioner claimed that about a week after his second deportation on May 9, 2000, he again encountered police officers who robbed him, but "just took [his] money that time" with no arrest or detention. But his earlier interview with the asylum officer included details from this second incident that were completely omitted from the IJ hearing, including that "his lip was busted open" and that he was taken to jail. About three weeks after this claimed incident, Petitioner made his third entry into the United States in June 2000 and was arrested a few months later for violating his parole.

3. 2001 Incident

A few days after his third deportation on April 17, 2001, Petitioner claims that he was singled out by the police because he "looked clean" and was told to hand over his money (even though he had none at the time).³ Whether or not Petitioner was physically injured in this third encounter, and if so, to what extent, is unclear from the record and his own inconsistent testimony. About a month after this claimed incident, Petitioner illegally made his fourth entry into the United States in 2001.

II. PROCEDURAL BACKGROUND

Petitioner's current deportation proceeding was initiated in November 2015, when for the first time he expressed a fear of returning to Mexico. Petitioner was interviewed by an asylum officer who found that he had a reasonable fear of torture, and was detained by the Department of Homeland Security (DHS) until he posted bond on June 17, 2016.

On November 30, 2015, Petitioner received his charging document, a Notice of Referral to Immigration Judge, which specified the location of his upcoming hearing but noted the date and time were "[t]o be determined." Three weeks later, on December 21, 2015, Petitioner received a "Notice of Withholding-Only Hearing" that provided the remaining hearing details, specifying the time, date, and location of his upcoming hearing. Several hearing notices followed as Petitioner's hearing date was pushed further out; each notice provided updated hearing details. Petitioner does not dispute that he received all hearing notices (as reflected in the certificates of service), or that he attended all IJ hearings with his attorney, including the final merits hearing on December 18, 2017.

A. IJ Hearings

Throughout the hearings, the IJ made multiple requests for additional supporting documents, including updated country reports, and provided Petitioner multiple opportunities to provide them. Petitioner failed to provide any updated country reports and the IJ took judicial notice of the State Department's 2016 Human Rights Report on Mexico (which, combined with the 2014 Human Rights Report, constitutes the entirety of the country conditions evidence in the record).

Despite having multiple family members locally situated in Pasadena who Petitioner claimed were aware of the incidents he described, none of them came to testify or offered a declaration on his behalf. Petitioner provided no explanation for why the family members he claimed could corroborate his story, didn't. The IJ also sought out other means of confirming Petitioner's testimony, such as medical records or photographs. But Petitioner provided nothing—he had not sought medical attention for any of his claimed injuries, nor had he taken any photographs.

As outlined above, Petitioner's description of all three robberies morphed before the IJ. The first incident grew significantly more serious from the relatively mild "bumps and bruises" described in his asylum interview to the busted-open eyebrow and bruising of the ribs, kidney, and head later recounted to the IJ. The second incident was downplayed in his testimony before the IJ, completely omitting the physical harm or busted-open lip described in his asylum interview. And Petitioner testified that the third incident occurred in February or March of 2001, even though he had not been deported from the United States until April 17, 2001. Petitioner also repeatedly denied knowing why he was targeted for the robberies, or if he would be targeted again in the future.

B. IJ Decision

The IJ denied Petitioner's applications for relief, relying on the omissions and inconsistencies described above to conclude that he was not credible. The IJ further explained that she would deny Petitioner's applications for relief even if she had found his testimony credible because the evidence (including the country conditions reports) failed to show that he faced a particularized risk of torture that was markedly different than that faced by the general population in Mexico.

C. BIA Decision

Citing Matter of Burbano , 20 I. & N. Dec. 872 (BIA 1994), the BIA adopted and affirmed the IJ's denial of Petitioner's applications.

Considering the totality of the evidence before the IJ, the BIA concluded that the adverse credibility determination was not "clearly erroneous" and was properly based on material inconsistencies and omissions between Petitioner's testimonial and documentary evidence and a lack of corroborating evidence. The BIA also agreed that Petitioner failed to establish eligibility for CAT relief independent of his own non-credible testimony. This petition followed,...