NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT V.M., No. 20-72563 Petitioner, Agency No. A074-378-938 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 19, 2022 Portland, Oregon Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW,** District Judge. V.M. 1, a native and citizen of Mexico, petitions for review of the order of the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. We grant the remainder of V.M.’s unopposed motion to proceed under a 1 pseudonym and refer to petitioner by his pseudonym in this disposition. the Immigration Judge (IJ) denying his application for protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. “We review [the agency’s] factual findings, including adverse credibility determinations, for substantial evidence.” Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). Under this standard, “[t]he agency’s findings of fact ‘are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016) (quoting 8 U.S.C. § 1252(b)(4)(B)). We deny the petition for review. 1. Substantial evidence supports the adverse credibility determination. When assessing an adverse credibility determination, we look to the “totality of the circumstances[] and all relevant factors.” Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc) (alteration in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). “[I]n some circumstances, our ‘totality of circumstances’ review of the BIA’s determination permits us to uphold an adverse credibility finding, even where we conclude that some of the grounds are not supported by substantial evidence.” Kumar v. Garland, 18 F.4th 1148, 1156 (9th Cir. 2021). Here, not all the BIA’s findings are supported by substantial evidence. The agency failed to consider V.M.’s mental illness as an explanation for the seeming implausibility of the statements he gave at the border in June 2015 and August 2015, and found that V.M. testified inconsistently about the number of times he 2 transported drugs based on statements he made at a competency hearing. See Shrestha v. Holder, 590 F.3d 1034, 1043–44 (9th Cir. 2010 (explaining an IJ must consider the “totality of the circumstances” and “all relevant factors” when determining credibility (quotation omitted)); Matter of J-R-R-A-, 26 I. & N. Dec. 609, 611 (B.I.A. 2015) (noting that where an individual has been diagnosed with a mental illness, “the factors that would otherwise point to a lack of honesty in a witness . . . may be reflective of a mental illness or disability, rather than an attempt to deceive the [IJ]”). However, other findings that are supported by …
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