Napoleon Guzman 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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 29 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NAPOLEON GUZMAN, No. 16-70968 Petitioner, Agency No. A095-013-089 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 11, 2022** Pasadena, California Before: CALLAHAN and VANDYKE, Circuit Judges, and EZRA,*** District Judge. Petitioner Napoleon Guzman (“Petitioner”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the order of an Immigration * 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 David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. Judge (“IJ”) denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. We review the decision that an alien has not established eligibility for withholding of removal or CAT protection for substantial evidence. Duran- Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). Additionally, the agency’s “factual findings, including adverse credibility determinations,” are reviewed for substantial evidence. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). Under the deferential substantial evidence standard, unless the evidence compels a conclusion otherwise, we must affirm the agency’s decision. Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010). Substantial evidence supports the adverse credibility finding as to Petitioner. The agency can base its adverse credibility finding on the totality of the circumstances, which include “the applicant’s responsiveness, consistency between written and oral statements, the internal consistency of those statements, and any inaccuracies or falsehoods.” Garcia, 749 F.3d at 789. Petitioner’s testimony was inconsistent with documentary evidence. To support his claim for persecution, Petitioner provided a declaration and testimony that his brother had been killed and that he and his family received threats. The testimony about his brother’s death contradicted his declaration in several ways, as 2 noted by the IJ and BIA. First, Petitioner’s testimony was that his brother was killed at twenty years old, which directly contradicts the documentary evidence he submitted that his brother was killed at thirty years old. Second, Petitioner testified that his brother just disappeared one afternoon, but his declaration stated that his brother was kidnapped from his house at night. Third, Petitioner testified that gang members killed his brother, but his declaration refers to guerillas as being responsible for his brother’s death. Petitioner’s testimony regarding the alleged threats he and his family received was also inconsistent with his declaration. Petitioner testified that his mother and sister received anonymous notes starting after he was already in the United States, but his declaration only mentioned receiving threatening telephone calls that started while he was still in El Salvador. In …

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