Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2554
JOSUÉ URIZAR,
Petitioner,
v.
ALBERTO GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
John P. Garan, on brief for petitioner.
James E. Grimes, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Department of Justice,
Peter D. Keisler, Assistant Attorney General, Civil Division, and
Linda S. Wernery, Assistant Director, on brief for respondent.
September 13, 2007
Per Curiam. Immigration and Customs Enforcement ("ICE")
served petitioner Josué Urizar, a Guatemalan national, with a
notice to appear on July 31, 2001. Urizar then filed applications
for special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100,
§ 203, 111 Stat. 2160, 2196-99 (1997) ("NACARA"), asylum,
withholding of removal, and relief under the Convention Against
Torture ("CAT"). On May 23, 2005, an immigration judge ("IJ")
rejected Urizar's applications and, in addition, denied Urizar's
request for voluntary departure. Urizar appealed to the Board of
Immigration Appeals ("BIA"), which affirmed the IJ's decision
without further opinion. Urizar now petitions for review of the
BIA's denial of his appeal. After careful consideration, we deny
the petition.
Discussion
Ordinarily, we review the BIA's opinion; however, when
the BIA summarily affirms a decision by an IJ, we review the IJ's
decision as if it were the decision of the BIA. Jean v. Gonzáles,
461 F.3d 87, 89 (1st Cir. 2006). An IJ's findings of fact,
including his credibility determinations, will be affirmed if they
are supported by substantial evidence. See Mewengkang v. Gonzáles,
486 F.3d 737, 740 (1st Cir. 2007). Legal conclusions are reviewed
de novo, but with appropriate deference to BIA interpretations of
the Immigration and Nationality Act. Id.
-2-
Urizar first argues that the IJ lacked jurisdiction to
adjudicate his asylum application because it had not first been
processed before an asylum hearing officer. This argument is
clearly without merit. Nothing in the INA requires that a hearing
officer first process an asylum application, and 8 C.F.R.
§ 208.14(a) makes it clear that "an immigration judge may grant or
deny asylum in the exercise of discretion to an applicant who
qualifies as a refugee under section 101(a)(42) of the Act."
Urizar's second argument is that he is an "ABC Class
Member,"1 and that thus, he is entitled to relief under NACARA.
NACARA provides that nationals of certain countries, including
Guatemala, may seek special rule cancellation of removal.
§ 203(a)(1). In order to qualify for NACARA special rule
cancellation, an alien must have arrived in the United States prior
to October 1, 1990, and must have either filed an asylum
application prior to April 1, 1990, or have registered as an ABC
Class Member prior to December 31, 1991. Id. The burden of
proving these prerequisites falls on the alien. 8 C.F.R.
§ 1240.64(a). The IJ found that Urizar was not credible and that
1
This refers to the class of Salvadoran and Guatemalan nationals
covered by a settlement agreement with the Immigration and
Naturalization Service (ICE's predecessor agency) with regard to
the processing of asylum applications. See American Baptist
Churches ("ABC") v. Thornburgh, 760 F. Supp. 796 (C.D. Cal. 1991).
-3-
he arrived in the United States after October 1, 1990.2 We
conclude that these findings are supported by substantial evidence.
Regarding Urizar's credibility, the IJ noted that
Urizar's testimony regarding his date of arrival was contrary to a
signed statement he had given earlier to an immigration officer,
indicating that Urizar arrived in 1994.3 Moreover, the evidence of
United States residency that Urizar presented all dated from 1994,
the date that Urizar had initially given the immigration officer.
Furthermore, although Urizar testified that he registered as an ABC
class member, he was able to offer few details other than that he
consulted with a lawyer named "Luis." Finally, there were
inconsistencies in various other aspects of Urizar's stories,
including his supposed "voluntary" child support payments (which
2
The IJ also determined that Urizar had not registered as an ABC
Class Member. Urizar argues that the IJ applied the incorrect
standard for determining whether he registered as an ABC Class
Member. Because we conclude that Urizar is ineligible for relief
under NACARA based on the IJ's other finding -- that Urizar arrived
in the United States after October 1, 1990 -- we need not reach
this argument. For the same reason, we also do not reach Urizar's
contention that the Government failed to offer sufficient proof
that he was ineligible for NACARA relief because of a prior
conviction for domestic violence.
3
Urizar argues that the statement is inaccurate and that it was
not explained to him in his native language, Spanish. However, the
only evidence that Urizar offers to prove this is his own
discredited testimony coupled with the fact that the immigration
officer who took the statement did not have a Hispanic surname.
The IJ was entitled to find as a matter of common sense that
immigration officers with non-Hispanic surnames are capable of
explaining and translating English-language statements into
Spanish.
-4-
evidence submitted by Urizar showed not to be voluntary) and the
circumstances under which he was detained by the ICE.4 These
inconsistencies in Urizar's testimony adequately support the IJ's
finding that Urizar was not credible.5 See Pan v. Gonzáles, 489
F.3d 80, 86 (1st Cir. 2007) ("The IJ did not deal in broad
generalizations but relied on a specific and well-articulated
litany of identified inconsistencies in the petitioner's story.
Those inconsistencies involve matters important to the petitioner's
claims for relief.").
As for his date of arrival in the United States, Urizar
was able to offer only two pieces of evidence: an unsworn statement
from his girlfriend's mother and his own testimony that he had
arrived in 1990. Urizar's testimony was discredited by the IJ's
adverse credibility finding. The remaining evidence -- the unsworn
statement by Urizar's girlfriend's mother -- was contradicted by
Urizar's earlier statement to immigration officers and provided
little detail regarding the circumstances under which Urizar's
girlfriend's mother came to know him when he arrived in the United
States. Given the scant and largely incredible evidence submitted
4
Urizar claimed that ICE officials had not been specifically
looking for him when he was detained. However, the Notice to
Appear with which Urizar was personally served was addressed to him
personally.
5
These facts are not "minor inconsistencies," as Urizar claims,
but rather, mostly go to the heart of Urizar's claim, i.e., the
date of his arrival in the United States.
-5-
by Urizar, we conclude that the IJ's finding that Urizar had not
met his burden of proving that he had entered the United States
before October 1, 1990 is supported by substantial evidence. Thus,
we affirm the IJ's ruling that Urizar is ineligible for relief
under NACARA.
Finally, Urizar contends that the IJ's decisions to
reject his asylum, withholding of removal, and CAT claims are
erroneous. Urizar states, however, that the IJ has failed to
sufficiently explain his reasoning for these decisions, and as
such, he is unable to formulate arguments responding to them. We
do not agree. The IJ's reasoning explicitly addresses the failings
of each of Urizar's claims. The IJ explained that Urizar had
failed to provide any evidence beyond his own testimony to support
his claims, and that Urizar's testimony had been found not
credible. As such, the IJ explained, Urizar did not sustain his
burden of demonstrating past or future persecution for the purposes
of his claims of asylum, see Berrio-Barrera v. Gonzáles, 460 F.3d
163, 167 (1st Cir. 2006) (noting standard for asylum), and
withholding, Stroni v. Gonzáles, 454 F.3d 82, 88 (1st Cir. 2006)
(discussing withholding standard), or of demonstrating a likelihood
of future state-sanctioned torture for the purposes of his CAT
claim, id. at 89-90 (explaining standard for CAT claims). See also
Pan, 489 F.3d at 86 ("[E]vidence that the factfinder supportably
characterizes as incredible may be either disregarded or
-6-
discounted. Accordingly, an adverse credibility determination can
prove fatal to a claim for either asylum or withholding of
removal."). Accordingly, we affirm the IJ's decision on these
claims as supported by substantial evidence.
Conclusion
For the foregoing reasons, we deny Urizar's petition.
Petition denied.
-7-