NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS ANTONIO ZAVALETA-SAN No. 16-72273
LUCAS,
Agency No. A200-885-043
Petitioner,
v. MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2018**
Seattle, Washington
Before: THOMAS, Chief Judge, and McKEOWN and CHRISTEN, Circuit
Judges.
Jesus Zavaleta-San Lucas, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision affirming an
Immigration Judge’s (“IJ”) denial of asylum and withholding of removal on
*
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. See Fed. R. App. P. 34(a)(2).
adverse credibility grounds under 8 U.S.C. § 1158(b)(1)(B)(iii) and relief under the
Convention Against Torture (“CAT”). See 8 C.F.R. § 1208.16(c). Substantial
evidence supports the BIA’s decision, and we therefore deny the petition.
We review for substantial evidence decisions by the BIA denying eligibility
for asylum, withholding of removal, and CAT relief. See Silva-Pereira v. Lynch,
827 F.3d 1176, 1184 (9th Cir. 2016). Where, as here, the BIA “incorporates the
IJ’s decision into its own without citing Matter of Burbano, 20 I. & N. Dec. 872
(BIA 1994), this court will review the IJ’s decision to the extent incorporated.”
Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014) (citing Ahir v.
Mukasey, 527 F.3d 912, 916 (9th Cir. 2008)). We also review adverse credibility
determinations for substantial evidence. See Shrestha v. Holder, 590 F.3d 1034,
1039 (9th Cir. 2010). We defer to the factual findings of the BIA, and they “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the BIA’s interpretations of
legal questions de novo. See Zheng v. Ashcroft, 332 F.3d 1186, 1193–94 (9th Cir.
2003).
Zavaleta-San Lucas alleges that he fears harm at the hands of the Flores
Flores family, which is a part of the Antorcha political party in his hometown of
Tepexi de Rodriguez, Puebla, Mexico. Zavaleta-San Lucas stated that the Flores
Flores family dislikes his family because of its support of a different political
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party. Zavaleta-San Lucas testified that he was attacked on multiple occasions by
members of the Flores Flores family, but omitted this testimony from his earlier
written statement. Because of these omissions, the IJ made an adverse credibility
determination and denied Zavaleta-San Lucas’s asylum and withholding of
removal claims. The BIA affirmed.
Credibility determinations are made considering the “totality of the
circumstances, and all relevant factors,” including “the consistency between the
applicant’s . . . written and oral statements.” 8 U.S.C. § 1158(b)(1)(B)(iii)
(asylum); 8 U.S.C. § 1231(b)(3)(C) (withholding of removal). When evaluating
discrepancies between statements, “an omission may form the basis for an adverse
credibility finding.” Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014). However,
“the mere omission of details is insufficient to uphold an adverse credibility
finding.” Id. (quoting Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005)).
This is not a case of “mere omission of details.” Zavaleta-San Lucas’s oral
testimony—presented on direct examination—was far more expansive and more
favorable to his position, and the only reason he offered to explain the omissions
that involved him directly is that he “forgot.” Cf. Lai, 773 F.3d at 973–74
(reversing an adverse credibility determination when omissions relating to third
parties were raised on cross examination and explained plausibly); Zamanov v.
Holder, 649 F.3d 969, 973–974 (9th Cir. 2011). Because these factors undermine
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Zavaleta-San Lucas’s credibility, substantial evidence supports the adverse
credibility determination. Without credible testimony, Zavaleta-San Lucas has not
met his burden of proof to establish eligibility for asylum or withholding of
removal. See 8 U.S.C. § 1158(b)(1)(B); 8 C.F.R. § 1208.16(b).
Turning to Zavaleta-San Lucas’s CAT claim, the BIA’s adverse credibility
determination “does not, by itself, necessarily defeat” a CAT claim. Garcia v.
Holder, 749 F.3d 785, 791 (9th Cir. 2014). Rather, “all evidence relevant to the
possibility of future torture shall be considered.” 8 C.F.R. § 1208.16(c)(3).
However, if a petitioner’s testimony is discredited, he must substantiate his claims
with independent corroborating evidence. See Garcia, 749 F.3d at 792. Zavaleta-
San Lucas seeks to corroborate his claims with country condition reports about
Mexico. However, these reports do not show that Zavaleta-San Lucas is
specifically “more likely than not” to be tortured if he returns to Mexico because
the reports focus on generalized violence in the country. 8 C.F.R. § 1208.16(c)(2).
Substantial evidence supports the BIA’s denial of CAT protection.
The petition for review is DENIED.
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