NOT FOR PUBLICATION FILED
MAY 26 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL RIVAS PEREZ, No. 19-71617
Petitioner, Agency No. A077-101-569
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2021**
San Francisco, California
Before: WALLACE, NGUYEN, and COLLINS, Circuit Judges.
Petitioner Raul Rivas Perez, a native and citizen of Mexico, seeks review of
the decision of the Board of Immigration Appeals (Board or BIA) affirming the
Immigration Judge’s (IJ) denial of his applications for withholding of removal and
*
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).
relief under the Convention Against Torture (CAT) based on an adverse credibility
determination.1 We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final
orders of removal. “We review factual findings, including adverse credibility
determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789
(9th Cir. 2014). “Factual findings ‘are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Id., quoting 8
U.S.C. § 1252(b)(4)(B). “When the BIA conducts its own review of the evidence
and law . . . , our review is limited to the BIA’s decision, except to the extent that
the IJ’s opinion is expressly adopted.” Shrestha v. Holder, 590 F.3d 1034, 1039
(9th Cir. 2010) (citation and quotation marks omitted). We deny the petition.
Rivas Perez testified that he was kidnapped by six men and held captive for
approximately two months. In his written declaration, Rivas Perez stated that his
captors shot him twice in the arm on the second night of his captivity and placed a
bag over his head multiple times to suffocate him. During direct examination,
Rivas Perez testified that, after being beaten in the course of his abduction, he did
not suffer further physical harm during his captivity, including suffocation. He
1
The Board also affirmed the IJ’s denial of Rivas Perez’s application for asylum
based on the determination that he is ineligible for asylum because of a prior
conviction for an aggravated felony. 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i).
Rivas Perez does not challenge that decision on appeal.
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also testified that when his captors released him, they threw him, he heard “buck,
buck, buck,” and his arm was subsequently injured.
Rivas Perez had opportunities during cross and redirect examination to
explain the discrepancy between his written declaration and testimony with respect
to the alleged suffocation. He provided various explanations including that he did
not hear the question, did not understand it, and had not been given a chance to
explain. The IJ also asked why Rivas Perez stated in his written declaration that he
was shot on the second day of his captivity but testified that his arm was injured
when he was released. Rivas Perez stated that he understood the question but did
not have an answer.
In affirming the IJ’s adverse credibility determination, the Board relied on
the IJ’s finding that there were “significant” discrepancies between Rivas Perez’s
written declaration that he was shot twice in the arm and suffocated during his
captivity, and his testimony that he was not harmed during his captivity after an
initial beating. The Board concluded that “being shot and having a bag placed over
your head are not aspects of a past persecution claim that would be inadvertently
omitted or overlooked.”
Inconsistencies between a petitioner’s oral and written statements can serve
as the basis for an adverse credibility determination. Silva-Pereira v. Lynch, 827
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F.3d 1176, 1185 (9th Cir. 2016), citing 8 U.S.C. § 1158(b)(1)(B)(iii). Under the
REAL ID Act, “[a]lthough inconsistencies no longer need to go to the heart of the
petitioner’s claim, when an inconsistency is at the heart of the claim it doubtless is
of great weight.” Shrestha, 590 F.3d at 1046–47. The discrepancies between
Rivas Perez’s written declaration and testimony are significant and go to the heart
of his claims of persecution and torture. Rivas Perez had multiple opportunities to
explain the discrepancy regarding the alleged suffocation but provided
unpersuasive answers. With respect to the alleged shooting, Rivas Perez’s
testimony changed the timing of the shooting by two months as well as its
circumstances. Accordingly, the record does not compel the conclusion that the
adverse credibility determination was erroneous.
Moreover, the Board did not abuse its discretion in declining to remand the
case based on Rivas Perez’s argument that, even if he did not credibly establish
past persecution, he faced future persecution for being a landowner in Mexico.
The Board correctly concluded that a remand was unwarranted because Rivas
Perez testified that he only cultivated his relatives’ land and there was no evidence
that Rivas Perez was a landowner in Mexico.
Lastly, substantial evidence supports the Board’s rejection of Rivas Perez’s
CAT claim on the grounds that, in addition to failing to demonstrate past torture
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credibly, Rivas Perez failed to show a likelihood of future torture. As the Board
explained, Rivas Perez “adduced insufficient evidence” to show either that the
Mexican government would acquiesce in any future mistreatment he might
encounter or that he could not safely relocate to another part of Mexico.
The petition for review is DENIED.
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