Zaruma-Guaman v. Wilkinson

United States Court of Appeals
For the First Circuit

No. 20-1533

LUIS ALFREDO ZARUMA-GUAMAN,

Petitioner,

v.

ROBERT M. WILKINSON,*
Acting United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.

Kevin P. MacMurray and MacMurray & Associates on brief for
petitioner.
Matthew B. George, Senior Litigation Counsel, Office of
Immigration Litigation, Jeffrey Bossert Clark, Acting Assistant
Attorney General, Civil Division, U.S. Dep't of Justice, and
Anthony P. Nicastro, Assistant Director, Office of Immigration
Litigation, on brief for respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Robert M. Wilkinson has been substituted for former
Attorney General William P. Barr as the respondent.
February 9, 2021
 SELYA, Circuit Judge. The petitioner, Luis Alfredo

Zaruma-Guaman, entreats us to set aside a decision of the Board of

Immigration Appeals (BIA), which affirmed the denial of his

application for asylum, withholding of removal, and other relief.

The BIA decision rested largely on a credibility determination

made by the immigration judge (IJ). Mindful that such

determinations, when made by a judicial officer who has the benefit

of seeing and hearing the witness testify at first hand, deserve

a considerable measure of deference, we deny the petition for

judicial review.

I. BACKGROUND

We start by briefly rehearsing the relevant facts and

travel of the case. The petitioner is an Ecuadorian national who

entered the United States without a valid entry document on

November 4, 2014. He did not get very far: he was apprehended

near the southern border later that day. At the time, the

petitioner was twenty years old.

The petitioner was interviewed by a border patrol agent

the following day. When the interview commenced, the petitioner

swore that his responses would be truthful. Asked whether he was

in fear of persecution or torture in Ecuador, the petitioner

responded in the negative. The interview was recorded in an

official report, which the petitioner subsequently refused to

sign. This report was titled "Record of Sworn Statement in

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Proceedings under Section 235(b)(1) of the Act," and we will refer

to it as the "sworn statement report."

The petitioner was detained, and the Department of

Homeland Security (DHS) issued an expedited removal order. Later

— the record is tenebrous as to the precise date — the petitioner

expressed a fear of persecution should he be repatriated, and DHS

held a credible fear interview on November 25, 2014. During the

credible fear interview, the petitioner claimed that he had been

mistreated on approximately ten occasions while in Ecuador by

people in his neighborhood and at work. He described being

punched, kicked, and insulted due to his indigenous ethnicity

(Quechuan) and a podiatric condition. He also claimed that he

feared future harm on account of his political affiliation with

the Pachacuti party. The petitioner explained that he was unable

to report the abuse to the police because he would have been

mistreated (although he never said by whom). When asked whether

his family members who continued to live in Ecuador had been harmed

or threatened, he replied only that his aunt had nearly been shot

three months earlier. He speculated that the assault on his aunt

was perpetrated by her own grandchildren, whom he alleged to be

gang members.

Following the credible fear interview, DHS cited the

petitioner as removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and

served him with a Notice to Appear on December 9, 2014. The

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petitioner conceded removability and cross-applied for asylum,

withholding of removal, and protection under the United Nations

Convention Against Torture (CAT). In support, he submitted an

affidavit stating that he had been afraid to report his abuse to

the Ecuadorian authorities because "the police are corrupt."

The petitioner was released on bond in January of 2015.

Hearings were held over a span of more than three years, during

which time the case was transferred to Boston, Massachusetts. The

petitioner testified at the last hearing (April 20, 2018) that he

had been bullied since the age of ten until the time he left

Ecuador and that the attacks on him sometimes occurred as often as

weekly. He added that he did not go to the Ecuadorian police

because they "don't do anything." On cross-examination, though,

he admitted that he had gone to the police two or three times, but

said that he was ignored. He also acknowledged that he had never

sought medical treatment as a result of the alleged abuse.

In due course, the IJ denied the petitioner's cross-

applications for relief and ordered him removed to Ecuador. The

IJ's denial rested mainly on an adverse credibility determination.

The IJ explained, inter alia, that the petitioner's inconsistent

stories about whether or not he had reported the alleged abuse to

the police threw shade on all of his testimony. These

inconsistencies, coupled with the absence of any meaningful

corroboration, prompted the IJ to invoke the maxim "falsus in uno,

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falsus in omnibus" and made it impossible to find that the

Ecuadorian government had denied the petitioner assistance. In

light of this adverse credibility determination, the IJ found no

credible evidence to support the petitioner's claims of either

past persecution or a well-founded fear of future persecution.1

Nor did the relevant country conditions reports prepared by the

State Department indicate that it was more likely than not that

the petitioner, if repatriated, would be tortured either at the

instigation or with the acquiescence of Ecuadorian officials.

Because the IJ found that nothing in the record showed that the

petitioner had suffered harm or torture by or with the acquiescence

of the Ecuadorian government, his claim for CAT protection

foundered.

The petitioner appealed to the BIA, training his sights

on the adverse credibility determination. He argued that his

testimony was consistent and that any discrepancies were

inconsequential. Moreover, he belatedly explained that he had

gone to the Ecuadorian police in several instances — but because

1For the sake of completeness, we note that the IJ accepted
the fact that the petitioner was of indigenous ethnicity but found
no credible evidence in the record to support either the
petitioner's purported involvement with the Pachacuti party or his
putative disability. With respect to the latter, the IJ observed
that the petitioner had access to pro bono medical care while in
the United States but had failed to obtain a medical report to
corroborate his claimed disability. The IJ added that, having
watched the petitioner walk into the courtroom, he could not say
that the petitioner had any disability at all.

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they did not want to help him, he was unable to file a report.

Relatedly, he claimed that the absence of any official report was

what he meant to convey when he testified that he had never gone

to the police. In a secondary line of attack, the petitioner

argued that the IJ should not have considered the sworn statement

report prepared by border officials following his initial

interview because he had refused to sign it.

The petitioner's importunings were for naught. The BIA

dismissed his appeal, discerning no clear error in the IJ's

decision. Indeed, the BIA echoed the IJ's criticisms of

inconsistencies both within the petitioner's testimony and between

his testimony and his earlier statements. And, finally, the BIA

— like the IJ — remarked the lack of any corroborating evidence to

buttress the petitioner's claims.

This timely petition for judicial review followed.

II. ANALYSIS

In this case, the BIA relied largely on the IJ's

decision. Following a well-beaten path, we treat the BIA's

decision and the IJ's decision as a unit in connection with our

review. See Loja-Tene v. Barr, 975 F.3d 58, 60 (1st Cir. 2020).

The petitioner's principal assignment of error relates

to the denial of his claim for asylum. To obtain a grant of

asylum, an alien must carry the burden of showing that he qualifies

as a "refugee" within the meaning of the Immigration and

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Nationality Act. 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A); see

Rivera-Coca v. Lynch, 844 F.3d 374, 378 (1st Cir. 2016). As

relevant here, achieving this benchmark requires the petitioner to

show that he is unable or unwilling to return to his homeland on

account of either past persecution or a well-founded fear of future

persecution. See Rivera-Coca, 844 F.3d at 378. Both corridors

lead directly to the same destination: a showing of past

persecution engenders "a rebuttable presumption . . . that [the

alien] will suffer future persecution . . . ." Id. at 378-79

(citing Palma-Mazariegos v. Gonzales, 428 F.3d 30, 34 (1st Cir.

2005)).

As phrased, the petitioner's challenge to the denial of

asylum stands or falls on the IJ's adverse credibility

determination (which was upheld by the BIA). Such a determination

is a finding of fact, see Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st

Cir. 2009), and the petitioner does not allege any independent

error of law. His claim is, therefore, subject to review under

the substantial evidence rubric. See id.

The substantial evidence rubric is both familiar and

straightforward. As long as the agency's credibility

determination is "supported by reasonable, substantial, and

probative evidence on the record considered as a whole," we must

accept it. Id. (quoting Segran v. Mukasey, 511 F.3d 1, 5 (1st

Cir. 2007)). The extent to which this standard is deferential

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bears emphasis: "absent an error of law, we will reverse only if

the record is such as to compel a reasonable factfinder to reach

a contrary determination." Chhay v. Mukasey, 540 F.3d 1, 5 (1st

Cir. 2008) (citing Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.

2007)).

Congress has limned a constellation of factors on which

an IJ may base a credibility determination:

[T]he demeanor, candor, or responsiveness of
the applicant or witness, the inherent
plausibility of the applicant's or witness's
account, the consistency between the
applicant's or witness's written and oral
statements (whenever made and whether or not
under oath, and considering the circumstances
under which the statements were made), the
internal consistency of each such statement,
the consistency of such statements with other
evidence of record (including the reports of
the Department of State on country
conditions), and any inaccuracies or
falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant's
claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii). Once properly made, "an adverse

credibility determination may doom an alien's claim for asylum."

Segran, 511 F.3d at 5 (citing Pan, 489 F.3d at 86; Stroni v.

Gonzales, 454 F.3d 82, 89 (1st Cir. 2006)).

In arguing against the adverse credibility determination

here, the petitioner first suggests that the inconsistencies

identified by the agency are not inconsistencies at all. This

suggestion is flatly belied by the record: the discrepancies

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pointed out by the IJ are apparent,2 and they supply specific

reasons to warrant a finding that the petitioner testified

untruthfully regarding facts related to the merits of his claims

for relief. No more is exigible to debunk the suggestion that

discrepancies did not exist. See Zeru v. Gonzales, 503 F.3d 59,

69-70 (1st Cir. 2007); Zheng v. Gonzales, 464 F.3d 60, 63-64 (1st

Cir. 2006).

The petitioner's next contention is equally unavailing.

He says that the inconsistencies, even if manifested in the record,

are "a very small portion of the testimony" and represent "innocent

mistake[s]" that are "wholly inadequate" to support an adverse

credibility determination. This contention presumably attempts to

draw sustenance from the so-called "heart of the matter" rule,

under which inconsistencies were required to be central to an

alien's claim in order to impugn his credibility. See Rivas-Mira,

556 F.3d at 4-5. But Congress — well before the proceedings in

this case — consigned the "heart of the matter" rule to the scrap

2 Most importantly, the IJ showcased a host of inconsistencies
concerning whether or not the petitioner had reported his alleged
abuse to the police. Both during his credible fear interview and
on direct examination, the petitioner denied ever going to the
police to report the abuse. In the same vein, both in his asylum
application and in the accompanying affidavit, the petitioner
recounted how fear of possible mistreatment had kept him from going
to the police. During cross-examination, however, he changed his
tune and vouchsafed that he had gone to the police two or three
times to report the abuse. So viewed, the inconsistencies are
stark.

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heap by passing the REAL ID Act. See id. at 4. The REAL ID Act,

which governs this case, replaced the "heart of the matter" rule

with a totality-of-the-circumstances approach. See 8 U.S.C.

§ 1158(b)(1)(B)(iii). For present purposes, then, the "heart of

the matter" rule is a dead letter.

We add, moreover, that whether the inconsistencies are

the product of mistake or mendacity is not dispositive. On this

petition for review, our singular focus is whether, in light of

the record as a whole, the inconsistencies are of a type and kind

that substantially support the IJ's adverse credibility

determination. We think it clear that the inconsistencies apparent

in this record pass through this screen.

Grasping for straws, the petitioner submits that because

the IJ did not make any express comment about the petitioner's

demeanor, the adverse credibility determination stands on shaky

ground. We do not agree. A witness's demeanor is, of course, a

relevant integer in the credibility calculus and — as a general

matter — a judicial officer who sees and hears a witness has a

superior coign of vantage in assessing that witness's credibility.

See Jianli Chen v. Holder, 703 F.3d 17, 24 (1st Cir. 2012). Even

so, specific findings about a witness's demeanor are not essential

to an adverse credibility determination.3 See id. (describing IJ's

3 The petitioner cites Ly v. Mukasey, 524 F.3d 126, 131 (1st
Cir. 2008), in which we state that "[w]hen a credibility

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observations of witness's demeanor as merely "fortif[ying]"

credibility determination); cf. United States v. Rodriguez-

Estrada, 877 F.2d 153, 158 (1st Cir. 1989) (describing jurors as

"the judges of the witnesses' demeanor and credibility" even though

jurors make no specific findings about a witness's demeanor).

So, too, the petitioner offers no authority to support

his ipse dixit that the agency should not have considered as

evidence the sworn statement report prepared by border agents

because the petitioner later refused to sign it. This argument

amounts to deeming the evidence as inadmissible hearsay — but as

the petitioner's statement was contained in an official report

made in the course of agency business, see 8 U.S.C.

§ 1225(b)(1)(A), the argument fails. See Ye v. Lynch, 845 F.3d

38, 44 (1st Cir. 2017)(affirming IJ's reliance on sworn statement

report); see also Arias-Minaya v. Holder, 779 F.3d 49, 54 (1st

Cir. 2015) (explaining that "it is settled beyond hope of

contradiction that in reviewing requests for discretionary relief,

immigration courts may consider police reports even when they rest

largely on hearsay"); cf. Fed. R. Evid. Rule 803(8) (memorializing

exception to hearsay rule for public records).

determination is based on discrepancies in an alien's testimony
rather than on h[is] demeanor while testifying, . . . , the IJ's
conclusion that []he was not credible is entitled to less
deference." Ly 524 F.3d at 131. This distinction is irrelevant
where, as here — and unlike in Ly itself — the discrepancy in the
testimony is patent. See id.

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 Here, the sworn statement report bore sufficient indicia

of reliability. For one thing, the petitioner does not refute

that the report is in fact a sworn statement, as he himself

promised under oath that it would be at the beginning of the

interview. For another thing, the sworn statement report bore the

contemporaneously affixed signature of a third-party witness. And

in any event, the fact that the petitioner refused to sign the

sworn statement report after it was prepared goes to its weight,

not to its admissibility. See 8 U.S.C. § 1158(b)(1)(B)(iii)

(authorizing admission in immigration proceedings of "statements

(whenever made and whether or not under oath . . . )"); Martinez

v. Holder, 734 F.3d 105, 112-13 (1st Cir. 2013) (finding report of

interview unsigned by interviewee to constitute reliable evidence

in immigration proceeding).

The petitioner also suggests that a statement made in

his credible fear interview should not have been given any weight

because the interview notes contain a disclaimer to the effect

that the document is not a verbatim transcript of the interview.

But "[s]trict rules of evidence do not apply in immigration

proceedings," Jianli Chen, 703 F.3d at 23 (citing Henry v. INS, 74

F.3d 1, 6 (1st Cir. 1996)), and the broad authority conferred by

section 1158(b)(1)(B)(iii) permits an immigration court to

consider such interview reports, whether or not verbatim

transcripts, so long as they are compiled in the ordinary course

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of an agency's business and the IJ finds them likely to be accurate

accounts of what was stated. See Jiao Hua Huang v. Holder, 620

F.3d 33, 37 (1st Cir. 2010); Pan, 489 F.3d at 86.

The petitioner has a fallback position: he says that he

adequately explained his inconsistencies. But even though the

petitioner did offer an explanation, not all explanations are

sufficient to relieve an alien of the consequences of proven

inconsistencies. See id. at 25; Rivas-Mira, 556 F.3d at 5. Here,

the petitioner's explanation was rejected by the IJ, who —

especially in view of the utter lack of any corroboration —

impliedly found it to be threadbare and unconvincing. Given the

weakness of the explanation, the IJ's rejection of it was

reasonable. We conclude, without serious question, that the record

does not compel a contrary finding. The circumstances relevant to

this conclusion include the fact that, on various occasions, the

petitioner claimed that fear impelled him to stay away from the

police and on other occasions claimed that he went to the police

(albeit without success). These are irreconcilably different

narratives on a plainly relevant point — and the petitioner's

proffered explanation does nothing to reconcile them.

In the last analysis, it is the purview of the IJ, within

wide limits, to accept or reject an explanation for demonstrated

testimonial inconsistencies. Chen v. Gonzales, 418 F.3d 110, 114

(1st Cir. 2005) ("That the IJ might have accepted [the

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petitioner's] explanations of his inconsistencies is not to say

she was required to do so.") Those limits were not exceeded (or

even closely approached) in the case at hand. Thus, the IJ's

adverse credibility determination is supported by substantial

evidence in the record, and the BIA's denial of the petitioner's

asylum claim must be upheld.

We need go no further. The petitioner's claim for

withholding of removal requires a showing of a clear probability

that, if repatriated, he would be persecuted on account of a

protected ground. See 8 U.S.C. § 1231(b)(3)(A); Cabas v. Holder,

695 F.3d 169, 173 (1st Cir. 2012). Because the petitioner has

failed to satisfy the less stringent standard required for asylum,

his counterpart claim for withholding of removal necessarily

fails. See Rivera-Coca, 844 F.3d at 378. And as for his CAT

claim, the petitioner makes no developed argument in this venue

that any evidence in the record demonstrates that he either has

been tortured or, if repatriated, is in danger of being tortured

by or with the acquiescence of the Ecuadorian government. Hence,

we deem his claim for CAT protection abandoned. Ahmed v. Holder,

611 F.3d 90, 98 (1st Cir. 2010) (reaching similar result based on

"the venerable precept that appellate arguments advanced in a

perfunctory manner, unaccompanied by citations to relevant

authority, are deemed waived") (quoting Jiang v. Gonzales, 474

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F.3d 25, 32 (1st Cir. 2007) and United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990)).

III. CONCLUSION

For the reasons elucidated above, we deny the petition

for judicial review.

So Ordered.

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