GAMEZ MONTOYA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-14No. No. 19-71468

Summary · law.co

Holding. The petition for review was denied, affirming the Board of Immigration Appeals' decision to reject Gamez-Montoya's applications for withholding of removal and Convention Against Torture relief.

Fernando Alonso Gamez-Montoya, a Mexican citizen, sought review of the Board of Immigration Appeals' decision rejecting his claims for withholding of removal and protection under the Convention Against Torture. The court examined whether substantial evidence supported the immigration judge's findings that Gamez-Montoya was not credible and did not qualify for the requested relief.

The court found multiple inconsistencies between Gamez-Montoya's hearing testimony and his earlier statements to law enforcement, including his claim that he crossed the border simply because conditions were better in the United States rather than fleeing danger. The court also noted that Gamez-Montoya had voluntarily returned to Mexico several times during the period he claimed to fear persecution, and had failed to seek asylum on previous entries to the United States. These factors supported the adverse credibility determination.

Regarding the Convention Against Torture claim, the court determined that even setting aside the credibility issues, the remaining evidence in the record did not establish that Gamez-Montoya was more likely than not to face torture by Mexican officials. The evidence consisted primarily of general descriptions of corruption and crime, along with accounts from friends and relatives about threats based on political disagreements, none of which compelled the conclusion that torture was likely.

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 between testimony and prior statements
Whether voluntary returns to a home country during periods of claimed persecution undermine credibility
Whether a Convention Against Torture claim can succeed independently of an adverse credibility finding

Procedural posture

Gamez-Montoya petitioned for review of the Board of Immigration Appeals' affirmance of an immigration judge's denial of withholding of removal and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Fernando Alonso Gamez-Montoya, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an immigration judges (“IJ”) denial of his application for withholding of removal and relief under the Convention Against Torture (“CAT”). We review the agencys “legal conclusions de novo and its factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.

1. Substantial evidence supports the IJs adverse credibility determination. The IJ found material, non-trivial inconsistencies between Gamez-Montoyas hearing testimony and his February 2015 credible fear interview with a law enforcement officer, in which he stated that he was “not at all” fleeing from any problems in Mexico and that he crossed the border simply “[b]ecause it is nice to be over here compared to being in Mexico.” While Gamez-Montoya offers alternative explanations for these statements, nothing in the record compels us to adopt a conclusion contrary to that of the BIA. See Pedro-Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000) (“[F]or us to disturb the Boards decision, [a petitioner] must show that the evidence not only supports ․ but compels reversal.” (quotation marks and citation omitted)).

Moreover, Gamez-Montoyas multiple voluntary returns to Mexico during the period when he was supposedly experiencing threats were inconsistent with his statements to the IJ that he feared returning to Mexico. See Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th Cir. 2008) (“It is well established ․ that an aliens history of willingly returning to his or her home country militates against a finding of past persecution or a well-founded fear of future persecution.”). As was his failure to apply for asylum during any of his previous crossings into the United States. Again, while Gamez-Montoya offers alternative explanations for his behavior, no evidence compels a finding that the BIAs adverse credibility determination was error. Accordingly, we reject Gamez-Montoyas argument that the agencys adverse credibility determination was unsupported by substantial evidence.

2. Substantial evidence supports the BIAs conclusion that Gamez-Montoya failed to demonstrate that he was more likely than not to be tortured by or with the acquiescence of a public official if he returned to Mexico. Gamez-Montoya argues that the agency improperly denied his CAT claim based solely on the adverse credibility finding. It is true that “an adverse credibility finding in the asylum context does not end the [CAT] inquiry,” Taha v. Ashcroft, 389 F.3d 800, 802 (9th Cir. 2004) (per curiam), because a petitioner could still demonstrate CAT eligibility if the remaining record evidence, “standing alone, compel[s] the conclusion that [he] is more likely than not to be tortured,” Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (quotation marks and citation omitted) (second alteration in original).

But the BIA did not base its decision regarding Gamez-Montoyas CAT claim exclusively on the adverse credibility finding. Rather, it held that “the evidence of record does not meet the applicants burden to show that, if removed to Mexico, he would more likely than not be tortured at the instigation or with the acquiescence ․ of a public official acting in his or her official capacity.” Thus, while the BIA did recognize that Gamez-Montoyas arguments for CAT relief relied on his own “testimony[,] which the [IJ] found not credible,” it also indicated that it considered all the evidence in the record. See Szonyi v. Whitaker, 915 F.3d 1228, 1258 (9th Cir. 2019) (“[T]his court generally presumes that the BIA thoroughly considers all relevant evidence in the record.”).

Gamez-Montoya argues that the BIA ignored evidence of past torture in the form of threats to inflict physical pain. But the BIA was not required to consider this issue because Gamez-Montoya failed to first raise it before the IJ. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019). While Gamez-Montoya points to additional evidence to dispute the BIAs rejection of his CAT claim, this evidence consists of generalized descriptions of corruption, organized crime, and political violence, and a handful of statements from Gamez-Montoyas friends and relatives describing threats of violence based on “political differences.” Nothing in this evidence “compels the conclusion that [Gamez-Montoya] is more likely than not to be tortured” if he returns to Mexico. Dhital, 532 F.3d at 1051.

PETITION DENIED.

FOOTNOTES

. Apart from his challenge to the adverse credibility finding, Gamez-Montoya does not address the merits of the denial of his application for withholding of removal.