MORENO MORENO v. ROSEN (2021)

United States Court of Appeals, Ninth Circuit.2021-01-20No. No. 18-72053

Summary · law.co

Holding. The petition for review was denied because substantial evidence supported the agency's adverse credibility determination based on multiple inconsistencies among the witnesses' accounts and between oral and written statements, and because country conditions evidence did not independently establish a likelihood of torture meeting the Convention Against Torture standard.

Two Salvadoran nationals, a mother and daughter, appealed an immigration judge's denial of their asylum, withholding of removal, and Convention Against Torture protection claims. They asserted they feared returning to El Salvador due to domestic abuse by family members. The immigration judge found them not credible, a determination the Board of Immigration Appeals upheld, and this court reviewed the petition for judicial review.

The court upheld the adverse credibility finding because substantial evidence supported it. The four witnesses—the mother, daughter, and the mother's parents—gave conflicting accounts regarding when and how frequently the alleged abuse occurred. Additionally, inconsistencies existed between the witnesses' testimony and the written asylum applications and declarations. The petitioners did not challenge these discrepancies on appeal, forfeiting any arguments against them. The court also considered country conditions evidence showing gang and gender-based violence in El Salvador but concluded it did not independently demonstrate a greater than 50 percent likelihood that the petitioners would face torture, which is required for Convention Against Torture protection.

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Key issues

Credibility determinations based on inconsistent testimony and statements
Standard of review for adverse credibility findings
Convention Against Torture protection eligibility

Procedural posture

The petitioners sought judicial review of the Board of Immigration Appeals' decision dismissing their appeal of an immigration judge's denial of asylum and related relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Sonia Margarita Moreno Moreno and her daughter, Felicita Isabel Ortiz Moreno, both natives and citizens of El Salvador, petition for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing their appeal from an order of an immigration judge (“IJ”) denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

Petitioners contend that they fear to return to El Salvador because of a history of domestic abuse perpetrated by Sonias father and by Sonias former partner, who is also Felicitas father. The IJ found that the Petitioners were not credible, and the BIA upheld that adverse credibility determination. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

Substantial evidence supports the agencys adverse credibility determination. Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010) (explaining that, in applying the substantial evidence standard, “[w]e reverse the BIAs decision only if the petitioners evidence was ‘so compelling that no reasonable factfinder could find that [she] was not credible’ ” (quoting Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003))). Specifically, the record supports the agencys finding that Petitioners were not credible based on multiple inconsistencies between (1) Sonias testimony, (2) Felicitas testimony, (3) the testimony of Sonias parents, and (4) Petitioners’ asylum applications and declarations. See 8 U.S.C. § 1158(b)(1)(B)(iii) (an IJ may assess credibility based on “the consistency between the applicants or witnesss written and oral statements,” “the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record”).

Petitioners fail to challenge significant inconsistencies in the record on which the agency relied in its adverse credibility determination. Notably, all four witnesses gave different answers to the questions when and how often the abuse inflicted by Sonias father and Sonias former partner occurred. Because Petitioners have forfeited any argument against reliance on these inconsistencies, we are compelled to uphold the adverse credibility determination on this basis.

Finally, we consider whether any non-testimonial evidence in the record independently establishes that Petitioners face a likelihood of future torture in El Salvador and therefore qualify for CAT protection. See Farah, 348 F.3d at 1157. Although the country conditions evidence certainly indicates that there is widespread gang- and gender-based violence in El Salvador, this evidence does not meet the high bar of independently proving that Petitioners face a greater than 50% likelihood of torture. Cf. Lianhua Jiang v. Holder, 754 F.3d 733, 740 (9th Cir. 2014); Garcia v. Holder, 749 F.3d 785, 792 (9th Cir. 2014).

PETITION DENIED.

FOOTNOTES

. Sonias case was not initially consolidated with Felicitas. The agency, however, ruled on the applications together, and Petitioners filed a single petition before this court. We refer to Petitioners in the plural, however, because the agency considered both Sonias and Felicitas testimony in its adverse credibility determination.

. Because Petitioners’ asylum and withholding claims are defeated by the adverse credibility determination, we need not address their argument regarding the protected social group of which they claim membership.

. We may not consider Petitioners’ ineffective assistance of counsel claim, which was not raised before the agency. Ontiveros-Lopez v. I.N.S., 213 F.3d 1121, 1124 (9th Cir. 2000) (“We ․ require a[ noncitizen] who argues ineffective assistance of counsel to exhaust his administrative remedies by first presenting the issue to the BIA.”).