Elizar Rosales Cruz v. Matthew Whitaker

FILED
NOT FOR PUBLICATION
DEC 17 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZAR EFRAIN ROSALES CRUZ, No. 15-71776

Petitioner, Agency No. A088-038-993

v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted December 4, 2018**
Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and BASTIAN,*** District Judge.

Petitioner Elizar Efrain Rosales Cruz (Cruz) petitions for review of the

decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the

*
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).
***
The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
denial of his application for withholding of removal.1 Cruz contends that the

adverse credibility determination made by the Immigration Judge (IJ) was not

supported by substantial evidence. Cruz also asserts that the BIA erred in holding

that he failed to establish a clear probability of persecution by Guatemalan gang

members on account of a protected ground if returned to Guatemala.

Substantial evidence supports the IJ’s adverse credibility determination

based on Cruz’s demeanor and rote answers to questions concerning his alleged

persecution. The IJ determined that Cruz “always responded in a manner

suggesting that he had memorized his answers and his account of events.” The IJ

emphasized that Cruz’s answers were “very superficial, very general in manner.”

The IJ also noted that Cruz’s testimony regarding his assault by individuals riding

motorcycles was “implausible, given the details related . . . and the distance

between [Cruz] and the individuals who were chasing him, the time of night, and

the manner in which they were chasing him.” The IJ “properly considered the

totality of the circumstances,” and provided the requisite “specific and cogent

reasons” to support his adverse credibility determination. Manes v. Sessions, 875

F.3d 1261, 1263 (9th Cir. 2017).

1
Cruz did not challenge denial of protection under the Convention Against
Torture (CAT).
2
Substantial evidence also supports the determination that Cruz failed to

establish the requisite nexus between his religious beliefs and persecution by gang

members. Cruz’s vague testimony did not establish that he was persecuted on

account of his religion. See Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009),

as amended (holding that petitioner failed to demonstrate that “he was persecuted

on account of a protected ground” based on a lack of evidence).

Finally, substantial evidence supports the BIA’s conclusion that Cruz failed

to sufficiently explain why he would be persecuted in Guatemala based on the

purported murder of his cousin by gang members. A review of Cruz’s vague and

conclusory testimony supports the BIA’s determination. See Lolong v. Gonzales,

484 F.3d 1173, 1178 (9th Cir. 2007) (en banc) (explaining that well-founded fear

of future persecution “requires credible, direct, and specific evidence that the

petitioner faces an individualized risk of persecution”) (citations and internal

quotation marks omitted).

PETITION DENIED.