FILED
NOT FOR PUBLICATION JAN 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANER VALENCIA CORTES, No. 12-71215
Petitioner, Agency No. A200-150-011
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 6, 2013
Seattle, Washington
Before: SCHROEDER and PAEZ, Circuit Judges, and BENITEZ, District Judge.**
Janer Valencia Cortes (“Petitioner”) petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) affirming the denial of his applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
The Immigration Judge (“IJ”) denied relief on two alternative and
independent grounds: an adverse credibility finding and the lack of a nexus to a
protected ground. The BIA affirmed on both. We deny the Petition.
Petitioner testified to multiple confrontations with unknown agents of the
Fuerzas Armadas Revolucionarias de Colombia (“FARC”) who, according to his
testimony, recognized him as a member of the military despite not personally
knowing him. He testified that they shot at him repeatedly and unsuccessfully,
compelling him to go to the police and then to escape Colombia in a boat for
Panama. Finding the testimony implausible, the IJ found Petitioner to lack
credibility after he was unable to supply corroboration by way of a police report, or
by any mention of the armed encounters in the letters he produced from relatives.
The evidence does not compel a contrary conclusion on credibility. See INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). The decision was not based on
speculation or conjecture about what the attackers would do, but on the
improbability of Petitioner’s own conduct. Cf. Lopez-Reyes v. INS, 79 F.3d 908,
912 (9th Cir. 1996) (rejecting adverse credibility finding based on IJ’s speculation
that the attackers would have killed the petitioner).
Even assuming Petitioner testified credibly, however, his testimony does not
establish that his treatment by the FARC agents was on account of a protected
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ground. INA § 241(b)(3)(A). The alleged confrontations were prompted by
Petitioner’s association with the military and not by any of his political opinions or
beliefs. Cruz-Navarro v. INS, 232 F.3d 1024, 1028–29 (9th Cir. 2000); Arriaga-
Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991). The evidence does not
compel the conclusion that Petitioner’s political opinion was a central reason for
the attack. See 8 U.S.C. § 1158(b)(1)(B)(i).
Petition for review DENIED.
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FILED
Cortes v. Holder, No. 12-71215 JAN 16 2014
MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, dissenting. U.S. COURT OF APPEALS
I respectfully dissent. The majority concludes that the IJ’s findings of
implausibility concerning Cortes’s testimony are distinguishable from the
circumstances in Lopez-Reyes because they were “not based on speculation or
conjecture about what the attackers would do, but on the improbability of the
Petitioner’s own conduct.” Mem. at 2. I disagree. In Lopez-Reyes, we considered
circumstances where the petitioner testified that he was approached by twenty
armed guerillas who fired shots at him and beat him with rifles. 79 F.3d at 910.
The IJ determined that the petitioner was not credible because it was implausible
that the guerillas would beat, shoot at and threaten him, but not kill him. Id. We
held the IJ’s adverse credibility determination was not supported by substantial
evidence because it was not based on objective fact or cogent reason, but rather on
personal conjecture about what guerillas would and would not do. Id. at 912.
Here, the IJ found that Cortes was not credible because it was “implausible
that if [the FARC] wanted to shoot [Cortes] that they would fail to do so, having
fired at him numerous times.” The IJ offered no objective factual explanation for
this conclusion, nor any cogent reason beyond her personal conjecture about what
the FARC would and would not do. Moreover, this finding was based, not on
Cortes’s actions, as the majority suggests, but on speculation regarding the actions
and intentions of the FARC. In my view, the circumstances here are analogous to
those in Lopez-Reyes and I would therefore conclude that the IJ’s adverse
credibility determination is not supported by substantial evidence.1
The majority also holds that, even were we to assume that Cortes was a
credible witness, he has not established that the persecution he experienced was on
account of a protected ground. Mem. at 2-3. In so holding, the majority explains
that “[t]he alleged confrontations were prompted by Petitioner’s association with
the military and not by any of his political opinions or beliefs.” Mem. at 2-3. In
my view, this conclusion does not accurately reflect Cortes’s testimony.
As Cortes explained, although the FARC members initially contacted him
because of his military status, they subsequently threatened and persecuted him
only after he refused to assist them and insinuated that they were a terrorist
organization. As the testimony clearly shows, Cortes was first approached by the
1
Although the majority does not address the other credibility issues raised by
the IJ, I note that as to these adverse credibility findings, the IJ either failed to
provide Cortes with an opportunity to explain any of the identified inconsistencies,
or failed to consider proffered explanations. This was error and “prevents the
underlying inconsistency from serving as substantial evidence to support the IJ’s
adverse credibility finding.” Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.
2009); see also Joseph v. Holder, 600 F.3d 1235, 1244-45 (9th Cir. 2010). I would
therefore remand these additional credibility issues to the BIA for further
consideration. Once the agency has revisited the credibility issues, it can apply our
decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), to determine whether
corroborative evidence is needed.
2
FARC members when leaving church. They informed him that they needed
information about his military service and the military base at which he worked.
They also wanted him to help them in their efforts against the government. Cortes
refused, stating that he was not a criminal or a terrorist. He then testified that,
“they told me since I had refused, they said I’m not going to live to tell the story,
because no one says no to us.” It was only after this exchange that Cortes was
threatened and later shot at several times by the FARC members.
To conclude that this evidence does not compel the conclusion that Cortes’s
political opinion was a central reason for his persecution, and that he was instead
persecuted on account of his military status, is an erroneous reading of the record.
In light of the record in this case, I would hold that the IJ and BIA erred in finding
that the harm Cortes experienced was on account of his military status, and would
remand for proper consideration of his political opinion claim.
For all of these reasons, I would grant the petition and remand Cortes’s
claims for withholding of removal under 8 U.S.C. § 1231(b)(3) and relief under the
Convention Against Torture, 8 C.F.R. § 1208.16(c)(2), for further consideration.
3