Jose Barrera Cruz v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION SEP 15 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOSE EFRAIN BARRERA-CRUZ, No. 10-72731

Petitioner, Agency No. A073-218-308

v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

Respondent.

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

Argued and Submitted September 1, 2011
Seattle, Washington

Before: HAWKINS, BEA, and MURGUIA, Circuit Judges.

Jose Efrain Barrera-Cruz (“Cruz”) petitions for review of the Board of

Immigration Appeals’ (BIA) affirmance of the Immigration Judge’s denial of relief

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
based on an adverse credibility finding against Cruz. We have jurisdiction

pursuant to 8 U.S.C. § 1252(a), and we deny Cruz’s petition for review.1

While “minor” inconsistencies which reveal nothing about an asylum

applicant’s fear for his safety are not an adequate basis for an adverse credibility

finding, inconsistencies regarding events that “form the basis” of the asylum claim

are sufficient to support an adverse credibility determination. See Zamanov v.

Holder, __ F.3d __, 2011 WL 1651231 at *3 (9th Cir. April 29, 2011).2 Here,

there were major inconsistencies between Cruz’s 1994 asylum application and

2006 asylum interview—in both of which he claimed fear of persecution by

guerrillas—and his 2008 Supplemental Asylum Declaration and 2008

testimony—in both of which he claimed fear of persecution based on his sexual

orientation. The BIA addressed and reasonably rejected Cruz’s explanation for

these inconsistencies. See, e.g., Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th

Cir. 2009). Moreover, there were inconsistencies within Cruz’s new claim: (1)

1
The parties are familiar with the facts of the case, so we repeat them here
only to the extent necessary to explain our decision.
2
The REAL ID Act, passed in 2005, changed the standard governing
adverse credibility determinations; “inconsistencies no longer need to ‘go to the
heart’ of the petitioner’s claim to form the basis of an adverse credibility
determination.” Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir. 2010). Cruz,
like the petitioner in Zamonov, filed his asylum application prior to May 11, 2005.
2011 WL 1651231, at *4 n.2. Thus, Cruz’s case is governed by pre-REAL ID case
law. See Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009).

2
Cruz testified inconsistently on the frequency of his beatings in El Salvador; (2)

Cruz testified that he was 17 years old when he left El Salvador in 1992 and 36

years old—not 33—at the time of his 2008 hearing; and (3) Cruz admitted that he

lied to an examining doctor about his alcohol abuse. These inconsistencies are

sufficient to support the BIA’s adverse credibility finding. See Zamanov, 2011

WL 1651231, at *3–4 (denying a petition for review because the BIA’s adverse

credibility finding was supported by inconsistencies about the quantity of beatings

alleged by the petitioner).

PETITION DENIED.