NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL SAAVEDRA ORTIZ, No. 20-71698
Petitioner, Agency No. A207-127-096
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued & Submitted October 4, 2021
Submission withdrawn November 8, 2021
Re-submitted April 18, 2022
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and McSHANE,** District
Judge.
Gabriel Saavedra Ortiz (“Petitioner”), a native of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
Immigration Judge’s (“IJ”) denial of his applications for adjustment of status and
cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we
review for substantial evidence the agency’s factual findings, see Arrey v. Barr,
916 F.3d 1149, 1157 (9th Cir. 2019). We deny the Petition.
The BIA’s adverse credibility determination was supported by substantial
evidence given the BIA’s discussion of several instances in which Petitioner’s
testimony appeared false, inconsistent, or otherwise implausible. For example, the
BIA pointed out that, during a 2014 interview with United States Citizenship and
Immigration Services (“USCIS”), Petitioner failed to disclose at least two
departures from the United States, both of which he would later acknowledge at a
2018 hearing. And at the 2018 hearing itself, the BIA noted that Petitioner first
claimed he had never left the country after 1997, but then acknowledged a 2005
trip to England when pressed by the government. Both instances support the
agency’s adverse credibility determination. See 8 U.S.C. § 1229a(c)(4)(C) (stating
that the agency “may base a credibility determination on . . . any inaccuracies or
falsehoods in [a witness’s] statements”); Rodriguez-Ramirez v. Garland, 11 F.4th
1091, 1093 (9th Cir. 2021) (observing that “[t]he BIA and IJ were permitted to
afford substantial weight to inconsistencies” in the petitioner’s account, and
holding that such inconsistencies supported the agency’s adverse credibility
determination). Similarly, although Petitioner disputed USCIS records indicating
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that he had left the country in 2012, it was not unreasonable for the agency to
conclude that it is implausible that immigration officials, having just fingerprinted
an alien who was unauthorized to be in the United States, would then allow that
alien to remain in the country without initiating removal proceedings, as
Petitioner’s account suggested. Such testimony lends further support to the BIA’s
adverse credibility determination. See Lalayan v. Garland, 4 F.4th 822, 837–38
(9th Cir. 2021) (upholding agency’s adverse credibility determination based in part
on the petitioner’s implausible testimony). Finally, the demeanor findings cited by
the BIA “specifically point[ed] out the noncredible aspects of the [P]etitioner’s
demeanor,” Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010), including his
dry mouth, shaky voice, and glances around the courtroom—findings that “are
entitled to special deference,” Ling Huang v. Holder, 744 F.3d 1149, 1155 (9th Cir.
2014). Thus, the BIA identified “specific and cogent reasons” to support its
adverse credibility determination, Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir.
2017), and Petitioner has failed to show that the record compels a contrary result.
Petitioner argues that because the IJ made no explicit credibility
determination regarding the testimony of his father, the BIA should have presumed
that the father’s testimony—which echoed Petitioner’s own account of the 2012
border incident—was truthful. This argument is unpersuasive. Although a
presumption of credibility “may arise” in appeals before the BIA where the IJ
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failed to make an explicit credibility determination, such a presumption is
rebuttable, and “the BIA [need not] follow a particular formula or incant ‘magic
words’ like ‘incredible’ or ‘rebutted’ to overcome the INA’s presumption of
credibility on appeal.” Garland v. Ming Dai, 141 S. Ct. 1669, 1671, 1677–78,
1679 (2021). Reviewing courts should “consider the possibility that the BIA
implicitly found the presumption of credibility rebutted.” Id. at 1679. Here, even
if the IJ did not make an explicit credibility determination regarding Petitioner’s
father, the BIA observed that Petitioner’s father “parroted the same implausible
claim that despite raising suspicion at the border, and then being fingerprinted and
processed in 2012, the [Petitioner] was simply ‘let go’ into the United States.”
Thus, “even if the agency did not utter the words ‘adverse credibility finding,’” it
is clear “the BIA found that [the father’s] presumption of credibility had been
overcome.” Id. at 1680.
Absent credible testimony regarding “the time, place, and manner” of
Petitioner’s entry into the United States, 8 U.S.C. § 1361, the record does not
compel the conclusion that Petitioner sustained his burden of proving “clearly and
beyond a doubt” that he was not inadmissible as charged, 8 C.F.R. § 1240.8(c).
Finally, substantial evidence supported the BIA’s determination that
Petitioner was ineligible for an adjustment of status. This conclusion was based on
record evidence that Petitioner had accrued more than one year of unlawful
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presence and had re-entered the United States without inspection on multiple
occasions, which rendered him inadmissible under 8 U.S.C. § 1182(a)(9)(C).
Because Petitioner’s inadmissibility is based on accrued unlawful presence, his
inadmissibility may not be waived. See Salazar-Gonzalez v. Lynch, 798 F.3d 917,
921 (9th Cir. 2015). Petitioner’s sole argument is that § 1182(a)(9)(C) is
“inapplicable” because he never entered or attempted to enter the United States
without being admitted. But the only evidence that Petitioner offers to support that
he entered with inspection is his own testimony, which the agency permissibly
found lacked credibility. Thus, Petitioner did not establish his entitlement to an
adjustment of status. See 8 C.F.R. § 1240.8(d) (stating that an alien has the burden
to prove eligibility “for any requested benefit or privilege”). Because Petitioner is
inadmissible under § 1182(a)(9)(C), the BIA appropriately concluded that he is
ineligible to adjust status under 8 U.S.C. § 1255(a) or § 1255(i). See Safaryan v.
Barr, 975 F.3d 976, 981 (9th Cir. 2020) (noting that “[a]n alien seeking to adjust
his or her status” under 8 U.S.C. § 1255(a) must be admissible); Garfias-Rodriguez
v. Holder, 702 F.3d 504, 514 (9th Cir. 2012) (en banc) (holding that aliens
inadmissible under 8 U.S.C § 1182(a)(9)(C)(i)(I) are not eligible for adjustment of
status under 8 U.S.C. § 1255(i)).
Petitioner did not address, let alone challenge, the BIA’s denial of his
application for cancellation of removal, and therefore has waived any challenge to
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this denial. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir. 1996).
The motion and supplemental motion to stay removal are denied as moot.
The temporary stay of removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
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