RAMIREZ AGREDA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-06-24No. No. 15-71511

Summary · law.co

Holding. The court denied in part and dismissed in part the petition for review, affirming the Board of Immigration Appeals' decision to dismiss the appeal and uphold the denial of withholding of removal and Convention Against Torture protection.

Daniel Ramirez-Agreda, a Salvadoran national, challenged the Board of Immigration Appeals' dismissal of his appeal seeking withholding of removal and protection under the Convention Against Torture. The court reviewed whether substantial evidence supported the immigration agency's findings that his testimony was not credible based on inconsistencies regarding when he filed a police report, damage to his home, and the number of times he encountered members of the FMLN.

The court upheld the agency's credibility determination, finding that meaningful contradictions between his testimony and written declarations provided a sufficient basis to reject his account. Because the court found his testimony unreliable, both his withholding of removal claim and his torture claim failed, as each depended on the credibility of the same evidence. The court also declined to address a due process argument he raised for the first time on appeal, holding that such claims must be presented to the agency first.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether substantial evidence supports an adverse credibility determination based on inconsistencies in testimony and declarations
Whether a withholding of removal claim survives when the underlying testimony is found not credible
Whether a Convention Against Torture claim can succeed absent credible evidence of torture risk
Whether a due process challenge raised for the first time on appeal may be reviewed by the court

Procedural posture

Ramirez-Agreda petitioned for review of a Board of Immigration Appeals decision affirming an immigration judge's denial of his applications for withholding of removal and Convention Against Torture protection.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Daniel Ramirez-Agreda, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges decision denying his applications for withholding of removal and protection under the Convention Against Torture (“CAT”).

Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings, applying the standards governing adverse credibility determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We deny in part and dismiss in part the petition for review.

Substantial evidence supports the agencys adverse credibility determination based on inconsistencies between Ramirez-Agredas testimony and his two declarations regarding when he filed a police report, what was painted on the walls of his home by members of the Farabundo Marti National Liberation Front (“FMLN”), and the number of encounters he had with the FMLN. See id. at 1044 (adverse credibility finding must be based on the totality of the circumstances). Ramirez-Agredas arguments and explanations do not compel a contrary conclusion. See Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011) (agency not required to accept explanations for inconsistencies). In the absence of credible testimony, Ramirez-Agredas withholding of removal claim fails. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Substantial evidence also supports the agencys denial of Ramirez-Agredas CAT claim because it was based on the same evidence found not credible, and Ramirez-Agreda does not point to any other evidence in the record that compels the conclusion that it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to El Salvador. Shrestha, 590 F.3d at 1048-49.

To the extent Ramirez-Agreda claims he was denied a full and fair hearing, we lack jurisdiction to consider this claim because he did not raise it before the BIA, and it is the type of claimed due process violation that can be corrected by the BIA. See 8 U.S.C. § 1252(d)(1); Sola v. Holder, 720 F.3d 1134, 1135-36 (9th Cir. 2013) (per curiam).

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.