NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 23 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
AIDA ELIZABETH MARTINEZ- No. 09-70488
ALVARADO,
Agency No. A099-528-920
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2013**
San Francisco, California
Before: WALLACE and BERZON, Circuit Judges, and ZOUHARY, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
Aida Elizabeth Martinez-Alvarado, a native and citizen of El Salvador,
petitions for review of a decision of the Board of Immigration Appeals (Board)
affirming the immigration judge’s (IJ) denial of her application for asylum and
withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review
adverse credibility determinations for substantial evidence and we will uphold the
Board’s decision unless the evidence compels a contrary conclusion. Singh v.
Ashcroft, 362 F.3d 1164, 1168 (9th Cir. 2004). We deny the petition for review.
Substantial evidence supports the Board’s adverse credibility determination
based on the inconsistencies between Martinez-Alvarado’s asylum application and
her testimony regarding the circumstances of significant incidents of harm she
states she suffered. 8 U.S.C. § 1158(b)(1)(B)(iii); Zamanov v. Holder, 649 F.3d
969, 973 (9th Cir. 2011) (“[I]nconsistencies regarding events that form the basis of
the asylum claim are sufficient to support an adverse credibility determination.”).
Specifically, Martinez-Alvarado failed to mention in her asylum application the
principal source of her fear, namely an individual who allegedly threatened her and
2
was involved in the deaths of her father and brother.1 Instead, she listed four other
reasons for departing El Salvador in an addendum to her asylum application, but
testified extensively about this individual during the removal proceedings. See
Shrestha v. Holder, 590 F.3d 1034, 1046-47 (9th Cir. 2010) (“Although
inconsistencies no longer need to go to the heart of the petitioner’s claim when an
inconsistency is at the heart of the claim it doubtless is of great weight.”).
Moreover, because Martinez-Alvarado’s testimony lacked credibility, her failure to
present corroborating evidence was fatal to her application. See Sidhu v. INS, 220
F.3d 1085, 1090 (9th Cir. 2000) (“[I]f the trier of fact either does not believe the
applicant or does not know what to believe, the applicant’s failure to corroborate
his testimony can be fatal to his asylum application.”).
1
The dissent maintains that each of the reasons supporting the Board’s
decision fails. However, when read in its totality there is sufficient evidence to
support an adverse credibility decision. A petitioner will fail to meet his or her
burden of proof to establish eligibility for asylum by not providing credible
testimony, see Singh-Kaur v. INS, 183 F.3d 1147, 1153 (9th Cir. 1999) (upholding
IJ’s finding that petitioner’s testimony was not credible because it lacked
specificity), and not properly explaining why material evidence is omitted, see
Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000). Here, there were material
omissions in Martinez-Alvarado’s initial asylum application, inconsistencies
between the application and her testimony and discrepancies regarding her failure
to provide further documentation to support her claim. Accordingly, substantial
evidence supports the Board’s decision.
3
Martinez-Alvarado’s explanations for the inconsistencies do not compel a
contrary conclusion. INS v. Elias-Zacharias, 502 U.S. 478, 481 n.1 (1992). In the
absence of credible testimony, Martinez-Alvarado’s asylum and withholding of
removal claims necessarily fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003).
PETITION FOR REVIEW DENIED.
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FILED
Martinez-Alvarado v. Holder, No. 09-70488 OCT 23 2013
BERZON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The majority affirms the Board’s adverse credibility determination,
reasoning that Martinez-Alvarado failed “to mention in her application the
principal source of her fear, namely an individual who allegedly threatened her and
was involved in the deaths of her father and brother.” Such inconsistency might be
sufficient to support an adverse credibility determination, if it existed. Here,
however, the Board’s credibility determination relied on a selective reading of the
record, “in contravention of the REAL ID Act’s text.” Shrestha v. Holder, 590
F.3d 1034, 1044 (9th Cir. 2010); see also 8 U.S.C. § 1158(b)(1)(B)(iii) (requiring
consideration of “the totality of the circumstances”).
When read in its totality, Martinez-Alvarado’s initial application differs
from her testimony only in its degree of specificity, not its substance. Martinez-
Alvarado’s application states that “the leader from the MOP [union]” threatened
her father—the same individual about whom she testified in more detail during the
removal proceedings. Martinez-Alvarado’s application also revealed that fear of
this person led her to flee El Salvador: “Due to death threats from the Union
members,” the application stated, “I fled El Salvador to save my life.” Differences
in specificity between the application and testimony do not support an adverse
1
credibility determination. See Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th
Cir. 2005) (reversing adverse credibility determination based on petitioner’s failure
“to describe all prior incidents of . . . persecution. . . in the early stages of her
application process”); Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996)
(holding that petitioner’s credibility was not undermined by a later, more detailed
oral testimony of what was described simply as “[guerrillas] death threatened me”
in the application)1; cf. Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011)
(upholding an adverse credibility determination because the petitioner “did not
merely elaborate on events that had previously been referenced”).
The Board also based its adverse credibility determination on Martinez-
Alvarado’s inability to identify “the name of the union in which her father was
involved.” That a then 15-year-old teenager only knew the organization as “MOP
Union”—and not its official name—is a “mere omission of details . . . insufficient
to uphold an adverse credibility finding.” Bandari v. INS, 227 F.3d 1160, 1167
(9th Cir. 2000).
1
Because the REAL ID Act “did not strip us of our ability to rely on the
institutional tools that we have developed for reviewing an IJ's credibility
determinations . . . we have continued to rely on . . . aspects of our pre-REAL ID
Act caselaw concerning credibility when reviewing post-REAL ID Act asylum
applications.” Ren v. Holder, 648 F.3d 1079, 1085 n. 2 (9th Cir. 2011) (internal
quotation marks and citations omitted).
2
Last, the Board found Martinez-Alvarado incredible due to her failure to
produce corroborating evidence. An IJ who decides “that the applicant should
provide [corroborating] evidence,” 8 U.S.C. § 1158(b)(1)(B)(ii), must give “notice
of that decision and provide . . . an opportunity to obtain the required evidence,”
Ren, 648 F.3d at 1090. Here, however, the IJ failed to provide the latter.
Opportunity to obtain corroborating evidence “does not necessarily require two
hearings.” Id. at 1092 n. 12. But a continuance was warranted here. At Martinez-
Alvarado’s first and only merits hearing, the IJ demanded evidence corroborating
her testimony presented that same morning. When she responded that such
documents were in El Salvador and offered to “take responsibility for those
documents and . . . bring them,” the IJ summarily denied her offer. That denial
does not qualify as the sort of opportunity “that the statutory text [of 8 U.S.C.
§ 1158(b)(1)(B)(ii)] . . . mandates.” Id. at 1093.
“Because each of the reasons supporting the adverse credibility
determination fails,” Mousa v. Mukasey, 530 F.3d 1025, 1029 (9th Cir. 2008), I
would find that the “evidence compels a contrary result” as to the credibility
finding, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (emphasis in the
original).
3
The Board’s conclusion that Martinez-Alvarado also failed to satisfy 8
U.S.C. § 1101(a)(42)’s nexus requirement falls alongside its adverse credibility
determination. The Board’s opinion incorporates by reference the IJ’s reasoning.
And the IJ, in turn, conditioned his nexus finding on his adverse credibility
determination. Thus, in reversing that credibility determination, I would
necessarily reverse the nexus finding dependent on it.
As the government acknowledged in its brief, this court “cannot conduct a
de novo review of issues not addressed by the agency.” INS v. Ventura, 537 U.S.
12, 16–17 (2002). Thus, I would remand to the Board to reconsider the merits of
Martinez-Alvarado’s asylum claim.
For these reasons, I respectfully dissent.
4