FILED
NOT FOR PUBLICATION
OCT 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO JULIAN GALICIA, No. 14-70864
Petitioner, Agency No. A072-673-575
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 10, 2016
Pasadena, California
Before: KOZINSKI and WARDLAW, Circuit Judges, and KORMAN,**
District Judge.
1. Galicia petitions for review of the BIA’s denial of his applications for
asylum, withholding of removal and protection under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
page 2
Torture (CAT). We deny Galicia’s petition because the agency’s adverse
credibility finding was supported by substantial evidence. See Shrestha v. Holder,
590 F.3d 1034, 1039 (9th Cir. 2010).
Galicia failed to mention in his applications a “dramatic, pivotal event,”
Alvarez-Santos v. I.N.S., 332 F.3d 1245, 1254 (9th Cir. 2003), that allegedly
precipitated his flight from Guatemala. During his removal proceedings in 2012,
Galicia, for the first time, testified that he fled Guatemala after witnessing
guerrillas kill his father before his very eyes. But in the declarations filed with his
asylum applications, Galicia had stated that his father was kidnapped five days
after he left Guatemala. See Pal v. I.N.S., 204 F.3d 935, 938 (9th Cir. 2000)
(holding that major inconsistencies between petitioner’s testimony and application
support adverse credibility finding). This omission is not trivial and cannot be
explained by “the normal limits of human understanding and memory.” Shreshta,
590 F.3d at 1044. Based on this omission, the agency’s adverse credibility
determination was more than reasonable. See id. at 1041.
Galicia contends that the agency, in reaching its adverse credibility decision,
didn’t sufficiently consider his age at the time of the alleged persecution. Where
asylum applicants claim past persecution as children, the agency must determine
whether the harms they experienced rose to the level of persecution by
page 3
“measur[ing] the degree of their injuries by their impact on children of their ages.”
Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th Cir. 2007). But here, the
agency didn’t have to decide whether a nine year old who witnessed guerillas kill
his father suffered past persecution because Galicia failed to establish that the
alleged event indeed happened.
The agency’s adverse credibility finding is further supported by an
inconsistency between Galicia’s testimony that he never returned to Guatemala and
his statements to the contrary during his asylum and special rule cancellation
interviews, as indicated by the immigration officers’ notes. Galicia’s explanation
that his mother’s funeral was in El Salvador, not in Guatemala, doesn’t compel us
to hold otherwise. It doesn’t explain the time he apparently returned to Guatemala
to claim his land. Moreover, Galicia couldn’t have gone to El Salvador by bus, as
he initially testified, without going through Guatemala. Galicia could have flown
directly from Mexico to El Salvador, as he later testified, but it’s implausible that
he boarded the plane without any form of identification other than his birth
certificate.
Relying on Singh v. Gonzales, 403 F.3d 1081 (9th Cir. 2005), Galicia argues
that the immigration officers’ notes cannot form the basis of an adverse credibility
determination. But the features that made the asylum officer’s “conclusory” notes
page 4
in his “Assessment To Refer” a “potentially unreliable point of comparison to
[Singh’s] testimony” are absent here. Id. at 1087–90. In this case, the officers
took contemporaneous notes as Galicia made statements under oath, with the aid of
interpreters who were also under oath. See id.
In the absence of credible testimony, Galicia’s asylum and withholding of
removal claims fail. As for his CAT claim, the government argues that Galicia
waived it. But even if he didn’t, this claim would fail because it’s based on the
same incredible testimony, and Galicia doesn’t point to any other evidence that
compels us to conclude that it’s more likely than not that he would be tortured if
returned to Guatemala.
2. We do not decide whether Galicia’s asylum application was timely. Even
if the application was timely, the BIA properly denied it based on the adverse
credibility determination.
DENIED.