FILED
NOT FOR PUBLICATION
FEB 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR BRAVO GOMEZ, aka Isabel No. 14-71178
Franco Perea,
Agency No. A095-787-342
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2018**
Pasadena, California
Before: GRABER and HURWITZ, Circuit Judges, and MARBLEY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Nickie Bravo-Gomez, previously known as Victor Bravo-Gomez, appeals an
order of the Board of Immigration Appeals (“BIA”) affirming the decision of the
immigration judge (“IJ”) denying her applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252.
We review the BIA’s factual findings, including adverse credibility
determinations, for substantial evidence. Ai Jun Zhi v. Holder, 751 F.3d 1088,
1091 (9th Cir. 2014). A finding is not supported by substantial evidence when
“any reasonable adjudicator would be compelled to conclude to the contrary based
on the evidence in the record.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1059 (9th Cir. 2017) (quoting Zhi, 751 F.3d at 1091) (internal quotation marks
omitted). Legal conclusions are reviewed de novo. Id.
1. The BIA’s adverse credibility determination is supported by substantial
evidence. The BIA relied in part on the inconsistencies in Ms. Bravo-Gomez’s
descriptions of an attack that allegedly occurred in February of 2011. She first
stated that she was attacked by one man inside a club, but later stated that she was
attacked by two men outside of the club. The BIA’s reliance on these material
inconsistencies is sufficient to support its adverse credibility determination.
Lianhua Jiang v. Holder, 754 F.3d 733, 738–39 (9th Cir. 2014). Because one
2
inconsistency is enough to support an adverse credibility finding, we need not
examine the remaining grounds identified by the BIA. Id.
2. The BIA did not err in finding insufficient corroborating evidence to
overcome the IJ’s adverse credibility determination. None of the proffered
evidence corroborates the February 2011 attack in sufficient detail. Because the IJ
did not find Ms. Bravo-Gomez’s testimony credible, she was not entitled to notice
and opportunity to obtain such evidence. See Bhattarai v. Lynch, 835 F.3d 1037,
1043 (9th Cir. 2016) (“The notice-and-opportunity requirement applies when the
applicant’s testimony is ‘otherwise credible.’” (quoting Ren v. Holder, 648 F.3d
1079, 1090 (9th Cir. 2011))).
3. Because the adverse credibility determination is supported by substantial
evidence and is sufficient to deny the asylum and withholding of removal claims,
we need not reach the BIA’s alternate ruling that relief is not warranted because
Ms. Bravo-Gomez could relocate in Mexico. Shrestha v. Holder, 590 F.3d 1034,
1048 n.6 (9th Cir. 2010).
4. The BIA did not err in ruling that the IJ acted as a neutral fact-finder.
Ms. Bravo-Gomez’s contention that the IJ erred by peppering her with questions
during direct and cross-examination is contrary to law, which explicitly allows IJs
to question witnesses. 8 U.S.C. § 1229a(b)(1); Antonio-Cruz v. INS, 147 F.3d
3
1129, 1131 (9th Cir. 1998). Further, even if the IJ exhibited bias toward Ms.
Bravo-Gomez, the record supports the denial of her claims for asylum and
withholding of removal and thus there was no prejudice, which is required to
succeed on a due process claim. Lianhua Jiang, 754 F.3d at 741.
5. The BIA erred, however, by not applying the proper legal standards to its
analysis of Ms. Bravo-Gomez’s claim for relief under CAT. CAT claims are
“analytically separate” from asylum claims. Kamalthas v. INS, 251 F.3d 1279,
1283 (9th Cir. 2001). It is not clear from the BIA’s order—wherein the BIA
affirms the IJ’s CAT finding in a single, conclusory sentence—that the Board
considered the factors in 8 C.F.R. § 1208.16 (c)(3) as required. Moreover, the BIA
incorrectly placed the burden on Ms. Bravo-Gomez to establish that relocation in
Mexico would be impossible. See Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th
Cir. 2015) (en banc) (holding that § 1208.16(c)(2) “does not place a burden on an
applicant to demonstrate that relocation within the proposed country of removal is
impossible”). And the adverse credibility determination alone does not require
denial of CAT protection, because “[i]t is well established that . . . an adverse
credibility finding does not always bar CAT relief.” Enying Li v. Holder, 738 F.3d
1160, 1167 n.6 (9th Cir. 2013).
4
Therefore, we DENY Ms. Bravo-Gomez’s petition for relief as to asylum and
withholding of removal, but GRANT the petition as to the CAT claim and remand to
the BIA for further proceedings.
Petition DENIED in part and GRANTED in part and REMANDED. The
parties shall bear their own costs on appeal.
5