George Napoles-Leyva v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 29 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GEORGE NAPOLES-LEYVA, No. 19-73041 Petitioner, Agency No. A203-633-164 v. MEMORANDUM* MERRICK B. GARLAND, Attorney Gen- eral, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 27, 2022** San Francisco, California Before: GRABER and OWENS, Circuit Judges, and BAKER,*** International Trade Judge. George Napoles-Leyva, a citizen of Cuba, petitions for review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal from the order of an * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Immigration Judge (IJ) denying his application for asylum and withholding of re- moval and protection under the Convention Against Torture (CAT).1 We review the BIA’s denials of asylum and withholding of removal for sub- stantial evidence and may reverse only if the evidence compels a contrary conclu- sion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We also review adverse credibility determinations for substantial evidence. Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). Where, as here, the BIA’s decision cites Matter of Burbano, 20 I&N Dec. 872 (BIA 1994), and also provides the Board’s own reasons, we review both decisions. Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013). 1. The adverse credibility finding is supported by substantial evidence. The IJ correctly emphasized that Napoles-Leyva’s inconsistent testimony concerning a passport application involved “a significant life event involving an alleged torture and the basis of Respondent’s claim. Claiming he cannot remember the sequences of these significant events casts doubts on whether Respondent actually experienced these events as he claimed.” The BIA noted that, on appeal, Napoles-Leyva failed to address those issues and also failed to address the IJ’s adverse credibility finding. Substantial evidence supports the administrative determinations. And contrary to 1 Napoles-Leyva did not appeal the denial of CAT relief to the BIA, which deemed that claim abandoned. 2 Napoles-Leyva’s assertions, the IJ gave Napoles-Leyva an opportunity to explain and clarify the inconsistencies. 2. The IJ also found that there was no evidence to support a reasonable fear of future persecution. Napoles-Leyva does not address that issue in his briefing here and we therefore deem it waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996). 3. Finally, Napoles-Leyva contends that the IJ violated his Fifth Amendment due process rights by admitting evidence submitted by the government without giv- ing him a chance to review it, by denying a continuance to allow him to obtain his own supporting evidence, and by not stating that he familiarized himself with the record as required by 8 C.F.R. § 1240.1(b). We lack jurisdiction …

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