TABARES LEYVA v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-03-10No. No. 20-70762

Summary · law.co

Holding. The petition for review is denied, and the Board of Immigration Appeals' decision affirming the denial of asylum is upheld.

Yasser Abel Tabares Leyva, a Cuban national, appealed the denial of his asylum application after both an Immigration Judge and the Board of Immigration Appeals rejected his claim. The court found that the Immigration Judge's determination that Tabares was not credible was supported by substantial evidence in the record. Specifically, Tabares made conflicting sworn statements about where his family members lived—at one point stating his mother and sister had been in Ecuador for four years, then later claiming his parents were in Cuba, and giving inconsistent accounts regarding his sister's residence in Georgia.

The court determined these inconsistencies were significant enough to support an adverse credibility finding and were not merely trivial errors. Because credible testimony is essential to an asylum claim, and Tabares' testimony lacked credibility, his asylum application could not succeed. The court also found that Tabares failed to properly raise certain procedural arguments before the agency, making them unavailable for review.

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 inconsistent statements
Whether conflicting sworn statements about family members' locations constitute material inconsistencies
Whether asylum claims can proceed absent credible testimony

Procedural posture

Tabares sought judicial review of the Board of Immigration Appeals' affirmance of the Immigration Judge's denial of his asylum application.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Yasser Abel Tabares Leyva, a native and citizen of Cuba, seeks review of the Board of Immigration Appeals’ (BIA) decision affirming the decision of the Immigration Judge (IJ) to deny Tabares’ application for asylum. We have jurisdiction under 8 U.S.C. § 1252(a)(1) and we deny the petition for review.

The IJs adverse credibility finding was supported by substantial evidence. There were sufficient indicia of reliability to permit the BIA and us to consider Tabares’ sworn statements in his I-877 form and the Customs and Border Protection officers report on form I-213. See Mukulumbutu v. Barr, 977 F.3d 924, 926 (9th Cir. 2020); Angov v. Lynch, 788 F.3d 893, 905 (9th Cir. 2015) (“The presumption of regularity has been applied far and wide to many functions performed by government officials.”). Tabares’ assertion in his sworn asylum application that his mother and sister had lived in Ecuador for the prior four years conflicts with his earlier sworn statement that his parents lived in Cuba. Also, Tabares’ initial statement that his sister lived in Georgia conflicts with his subsequent sworn testimony that his sister did not live in Georgia. Both the IJ and the BIA found that these inconsistencies supported an adverse credibility finding, and no “evidence in the record compels” this court to reach “a contrary result.” Parussimova v. Mukasey, 555 F.3d 734, 738 (9th Cir. 2009); 8 U.S.C. § 1252(b)(4)(B) (agency factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”) Moreover, these inconsistencies are not “utterly trivial.” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (“When an inconsistency is cited as a factor supporting an adverse credibility determination, that inconsistency should not be a mere trivial error such as a misspelling.”). Tabares’ other arguments regarding procedural defects in the record are unexhausted, so we may not consider them. Barron v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003).

Absent credible testimony, Tabares’ asylum claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). We need not reach Tabares’ other arguments.

PETITION DENIED.

FOOTNOTES

. Tabares’ motions for stay of removal [Dkt. 1] and to supplement the record [Dkt. 14] are denied as moot.