NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISMAEL CAMPOS MORENO, No. 19-70962
Petitioner, Agency No. A200-155-852
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2020**
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and MELGREN,*** District Judge.
Ismael Campos Moreno, a native and citizen of Mexico, entered the United
States without authorization and was later charged as removable. He applied 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eric F. Melgren, United States District Judge for the
District of Kansas, sitting by designation.
Torture (CAT). The Immigration Judge (IJ) found Campos Moreno competent to
proceed and denied his application. The Board of Immigration Appeals (BIA)
affirmed the IJ’s denial. We review the BIA’s legal conclusions de novo and its
factual findings for substantial evidence. Molina-Estrada v. I.N.S., 293 F.3d 1089,
1093 (9th Cir. 2002). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the
petition for review.
1. The IJ did not err in conducting the competency inquiry required by
Matter of M-A-M-, 25 I. & N. Dec. 474 (B.I.A. 2011). After Campos Moreno’s
attorney presented “indicia of incompetency,” the IJ evaluated whether Campos
Moreno had a rational understanding of the nature and object of the proceedings.
The IJ reviewed Campos Moreno’s medical history and allowed him a reasonable
opportunity to present relevant evidence. Because the IJ concluded Campos
Moreno was competent to proceed, the IJ was not required to select and employ
safeguards for the proceeding. Id. at 481–82. In addition, substantial evidence
supports the IJ’s conclusion that Campos Moreno was competent.
2. Substantial evidence also supports the agency’s adverse credibility
determination based on inconsistencies between Campos Moreno’s declaration and
his testimony, the omission from his declaration of substantive details of an
encounter with police, and the omission from his testimony of the incident that
prompted him to leave Mexico. Although “the mere omission of details is
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insufficient to uphold an adverse credibility finding,” Bandari v. I.N.S., 227 F.3d
1160, 1167 (9th Cir. 2000), “[m]aterial alterations in the applicant’s account of
persecution are sufficient to support an adverse credibility finding.” Zamanov v.
Holder, 649 F.3d 969, 973 (9th Cir. 2011). Campos Moreno attributed the
inconsistencies or omissions to the paralegal who drafted his declaration (or to his
own failure to relay all the incidents to that person), his failure to remember
details, and his mental illness. The agency was not compelled to credit these
explanations. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).
3. Even if credible, Campos Moreno failed to establish entitlement to the
requested relief. To establish eligibility for asylum, an alien must demonstrate that
he suffered past persecution or has “a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42). To be eligible for withholding of removal an
applicant must demonstrate that his “life or freedom would be threatened in [his
home] country because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1231(b)(3)(A). Campos
Moreno claims persecution as a member of the particular social group “persons
with a mental illness.” Assuming arguendo that Campos Moreno established
membership in this particular social group, he must still show that his “persecution
was or will be on account of his membership in such group.” Ayala v. Holder, 640
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F.3d 1095, 1097 (9th Cir. 2011). Substantial evidence supports the agency’s
conclusion that Campos Moreno failed to demonstrate that his mental illness or
symptoms motivated the perpetrators’ actions. See Garcia-Milian v. Holder, 755
F.3d 1026, 1031 (9th Cir. 2014) (“[T]he persecutor’s motive is ‘critical’ and the
applicant must come forward with ‘some evidence of [motive], direct or
circumstantial.’”) (second alteration in original) (quoting I.N.S. v. Elias-Zacarias,
502 U.S. 478, 483 (1992)).
4. Finally, substantial evidence supports the agency’s denial of CAT
protection because Campos Moreno failed to show it is more likely than not that he
would be tortured by or with the consent or acquiescence of the government if
returned to Mexico. See id. at 1034 (holding that police ineffectiveness is not
enough to establish an entitlement to relief, “absent evidence of corruption or other
inability or unwillingness to oppose criminal organizations”).
Campos Moreno’s motion for stay of removal is denied as moot.
PETITION FOR REVIEW DENIED.
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