NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BILLY GABRIEL MONTOYA-GARCIA, No. 18-72712 Petitioner, Agency No. A208-289-221 v. MEMORANDUM* JEFFREY A. ROSEN, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 10, 2020 San Francisco, California Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges. Billy Gabriel Montoya-Garcia, a native and citizen of El Salvador, seeks review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal from the immigration judge’s (IJ) denial of his applications for asylum, withholding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. of removal, and CAT protection. We have jurisdiction pursuant to 8 U.S.C. § 1252 and deny the petition. The IJ’s decision and the BIA’s affirmance were due to an adverse credibility finding based on omissions and inconsistencies in Montoya-Garcia’s testimony. Montoya-Garcia omitted from his application and affidavit (1) that his classmates physically harmed him on account of his sexual orientation; (2) that his father physically abused him more than twenty times on account of his sexual orientation; and (3) that gangs extorted him for more money than other business owners on account of his sexual orientation. His testimony was also inconsistent with his statements to a Border Patrol agent: he stated he came to the United States to “live and work in Las Vegas,” not to flee persecution. The BIA also found that Montoya- Garcia’s corroborating evidence did not independently and reliably prove his claim of persecution and that the totality of the record evidence did not credibly establish a valid CAT claim. In making an adverse credibility determination, an IJ must consider “the totality of the circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii). The BIA reviews that determination for clear error. 8 C.F.R. 1003.1(d)(3)(i). We review the BIA’s decision for substantial evidence, and factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (citation omitted). “This Court’s 2 review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Popova v. INS, 273 F.3d 1251, 1257 (9th Cir. 2001) (quotation marks and citation omitted). Here, the BIA expressly limited its decision to the IJ’s adverse credibility determination.1 Therefore, our review will be limited to the adverse credibility determination as well. Where the BIA expresses no disagreement with the IJ’s decision, but instead cites Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), as the BIA did here, we review the IJ’s decision as though it were the decision of the BIA. Figueroa v. Mukasey, 543 F.3d 487, 491 (9th Cir. 2008). The REAL ID ...
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