Aida Martinez-Alvarado v. Eric Holder, Jr.

NOT FOR PUBLICATION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

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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.

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 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

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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).

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 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).

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 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.

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