FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN RUIZ-COLMENARES, No. 20-72672 Petitioner, Agency No. v. A075-177-403 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 21, 2021 * Pasadena, California Filed February 9, 2022 Before: Ryan D. Nelson and Lawrence VanDyke, Circuit Judges, and Karen E. Schreier, ** District Judge. Opinion by Judge VanDyke * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. 2 RUIZ-COLMENARES V. GARLAND SUMMARY *** Immigration Denying Juan Ruiz-Colmenares’s petition for review of a decision of the Board of Immigration Appeals, the panel held that (1) it lacked jurisdiction to consider Ruiz- Colmenares’s unexhausted challenge to his hearing notice; and (2) the agency’s adverse credibility determination was supported by substantial evidence and Ruiz-Colmenares failed to carry his burden to succeed on his claim for deferral of removal under the Convention Against Torture. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Ruiz-Colmenares argued that the agency lacked jurisdiction over his proceedings because his charging document, a Notice of Referral, failed to specify the time and date of his hearing. The panel concluded that it lacked jurisdiction to consider Ruiz-Colmenares’s argument because he failed to raise it before the agency. Ruiz-Colmenares had previously been deported three times, and in the processing of his present fourth deportation proceedings expressed for the first time a fear of returning to Mexico because he had been robbed and assaulted by police officers in Mexico after each of his prior three deportations. The panel held that substantial evidence supported the immigration judge’s adverse credibility determination based on inconsistencies and omissions within and between Ruiz- Colmenares’s written, verbal, and documentary evidence *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RUIZ-COLMENARES V. GARLAND 3 regarding what happened to him in Mexico and when. As to testimonial inconsistencies concerning dates, the panel wrote that even minor inconsistencies that have a bearing on a petitioner’s veracity may constitute the basis for an adverse credibility determination. The panel explained that this type of evolving story is precisely what one would expect if a petitioner is fabricating or embellishing past harms, and it is eminently reasonable that the IJ would conclude that these changes reflected poorly on Ruiz-Colmenares’s credibility. The panel further held that the agency properly considered and weighed Ruiz-Colmenares’s failure to mention any fear of returning to Mexico, or the robberies, during his previous three deportation proceedings. The panel also held that the IJ reasonably concluded that Ruiz-Colmenares’s failure to provide any corroboration could not rehabilitate his incredible testimony. The panel held that even if the record compelled reversal of the agency’s adverse credibility determination, substantial evidence would still support the …
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