Daniel Bautista-Lopez v. Jefferson Sessions

FILED NOT FOR PUBLICATION MAR 27 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL BAUTISTA-LOPEZ, No. 15-71402 Petitioner, Agency No. A079-143-798 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 9, 2018 Pasadena, California Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District Judge. Daniel Bautista-Lopez, a Mexican native, petitions for review of the Board of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. Immigration Appeals (BIA) order dismissing his appeal of the denial of his application for withholding of removal and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a)(1) and review the agency’s factual findings for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We grant in part and deny in part the petition for review. 1. Because the BIA relied on the IJ’s analysis of Bautista-Lopez’s credibility, “we look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted). Under the applicable REAL ID Act standard, the IJ must consider the totality of the circumstances and provide “‘a specific cogent reason’ for the adverse credibility finding.” Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (citation omitted); see also 8 U.S.C. § 1158(b)(1)(B)(iii). Here, the IJ found Bautista-Lopez was not credible based on material discrepancies between his I-589 application and his hearing testimony. In his I-589 application, Bautista-Lopez succinctly stated that he was kidnaped by locals, sold to the cartel, and beaten severely for three weeks because he refused to assist with the cartel’s drug smuggling operations. However, he did not mention that his captors used bolt cutters to sever one toe and split open another, as he testified during the hearing. Nor did he mention the “crippled man” who tried to help him or 2 his family’s efforts to secure his ransom—both prominent features of his hearing testimony. Bautista-Lopez explained that he did not mention these details earlier because he “forgot,” which the IJ found “suspicious.” The IJ also skeptically noted Bautista-Lopez’s testimony that when he returned to the United States, he sought medical attention for a cut on his hand, but not his severed toe. On appeal, the BIA concluded that these omissions and inconsistencies “were not minor, collateral details, but instead went to the core of his alleged fear of returning to Mexico.” We agree. Thus, substantial evidence supports the IJ’s adverse credibility determination and the BIA’s denial of withholding of removal. 2. The next issue is the application for CAT protection. The evidence included the Mexico 2013 Human Rights Report (Mexico Report), which was admitted without objection. ...

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