NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN HIGAREDA-FRUTOS, No. 18-70508 Petitioner, Agency No. A200-698-259 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 16, 2020** San Francisco, California Before: WATFORD, FRIEDLAND, and MILLER, Circuit Judges. Juan Higareda-Frutos, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order of an immigration judge (“IJ”) denying his application for withholding of removal under the Convention Against Torture (“CAT”). * 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). Higareda-Frutos contends that, in 2010, he was kidnapped and tortured by the Michoacán cartel, who had previously kidnapped and murdered his father and who threatened Higareda-Frutos with death if he was seen again in his hometown of Sahuayo, Mexico. The IJ found his testimony not to be credible, and the BIA upheld that adverse credibility determination. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part and dismiss it in part. Substantial evidence supports the agency’s1 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 BIA’s decision only if the petitioner’s evidence was ‘so compelling that no reasonable factfinder could find that he was not credible’” (quoting Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003))). Specifically, the record supports the agency’s finding that Higareda-Frutos was not credible based on omissions and inconsistencies in Higareda-Frutos’s responses to a 2010 border interview as compared with his later testimony in support of his 2016 application for CAT protection. See 8 U.S.C. § 1229a(c)(4)(C) (authorizing credibility determinations based on inconsistencies in an applicant’s statements in removal proceedings). 1 “Where, as here, the BIA agrees with and incorporates specific findings of the IJ while adding its own reasoning, we review both decisions.” Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We refer to the BIA and the IJ collectively as “the agency.” 2 Higareda-Frutos maintains that the 2010 interview should not be relied on as a comparison because the interviewing border patrol officer’s Spanish was inadequate and that, consequently, Higareda-Frutos could not understand some questions and some answers he provided were mistranslated. He further argues that the agency’s response to this explanation—that all border patrol officers speak Spanish—is impermissible speculation unsupported by record evidence. We agree with Higareda-Frutos that the agency erred in making this assumption, which the Government seems to acknowledge was unsupported. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000) (“Speculation and conjecture cannot form the basis of an adverse credibility finding, which must ...
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