NOT FOR PUBLICATION FILED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
FRANCISCO ISRAEL BATRES-ROCA, No. 18-71926
AKA Felipe Portillo-Vega,
Agency No. A070-154-405
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2022**
San Francisco, California
Before: CLIFTON and M. SMITH, Circuit Judges, and REISS,*** District Judge.
Petitioner Francisco Batres-Roca, a citizen of Guatemala, petitions for
review of the decision by the Board of Immigration Appeals (“BIA”) affirming the
*
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 Christina Reiss, United States District Judge for the
District of Vermont, sitting by designation.
Immigration Judge’s (“IJ”) denial of his claims for asylum, withholding of
removal, and Convention Against Torture (“CAT”) protection. We have
jurisdiction pursuant to 8 U.S.C. § 1252. Because the parties are familiar with the
facts, we recite only those necessary to our decision. We deny the petition.
First, we agree with the BIA’s conclusion that Batres-Roca was ineligible
for asylum because he neither met the timely filing requirement nor fulfilled an
exception to that requirement despite his claim to an exception for “extraordinary
circumstances.” See 8 C.F.R. § 1208.4(a)(5) (defining “extraordinary
circumstances” as “events or factors directly related to the failure to meet the 1-
year deadline” and rendering the delay “reasonable under the circumstances”);
Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011) (recognizing appellate
jurisdiction to review the agency’s application of the “extraordinary
circumstances” exception to undisputed facts). Batres-Roca most recently entered
the U.S. on June 4, 2011, and was thus required to file his application in
immigration court by June 4, 2012, but only did so on November 1, 2013. The BIA
committed no error in concluding that he failed to qualify for the “extraordinary
circumstances” exception. The BIA cogently emphasized that he “admit[ted] that
he does not have proof of allegedly filing the application in February 2012” with
USCIS, which, in any case, was the wrong venue for filing his defensive
application because, at that time, such an application was required to be filed in
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immigration court; nonetheless, Batres-Roca’s “extraordinary circumstances”
contention, made by counsel, centered on that unsubstantiated filing attempt. See 8
C.F.R. § 1208.4(b)(3). Moreover, the BIA’s reasoning relied in part on the fact that
Batres-Roca “had a hearing before the [IJ] on December 8, 2011 where he was
represented by counsel[,]” but conceded that he did not attempt to file his
application at that hearing, which occurred approximately six months before the
deadline passed. Finally, the BIA properly considered and rejected his argument
that the delays in his immigration hearings constituted “extraordinary
circumstances.”
Second, we conclude that substantial evidence supported the adverse
credibility finding, which led to the agency’s denial of his withholding-of-removal
claim as well as his asylum claim. We review adverse credibility
determinations for substantial evidence. See Garcia v. Holder, 749 F.3d 785, 789
(9th Cir. 2014). “A finding by the IJ is not supported by substantial evidence when
any reasonable adjudicator would be compelled to conclude to the contrary based
on the evidence in the record.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1059 (9th Cir. 2017) (quotation marks and citation omitted). Because “the BIA
reviewed the IJ’s credibility-based decision for clear error and relied upon the IJ’s
opinion as a statement of reasons but did not merely provide a boilerplate opinion,”
we review those reasons “explicitly identified by the BIA” and “the reasoning
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articulated in the IJ’s [] decision in support of those reasons,” but not “those parts
of the IJ’s adverse credibility finding that the BIA did not identify as most
significant and did not otherwise mention.” Lai v. Holder, 773 F.3d 966, 970 (9th
Cir. 2014) (quotation marks and citations omitted).
Batres-Roca falsely claimed Mexican citizenship and the name Felipe
Portillo-Vega in multiple government proceedings. We have held that “falsehoods
and fabrications weigh particularly heavily in the adverse credibility inquiry.”
Kumar v. Garland, 18 F.4th 1148, 1155 (9th Cir. 2021). The agency reasonably
considered and permissibly rejected his argument that these falsehoods were
excused by his fear of removal. When he stated those falsehoods, he was already in
the U.S. and was not directly fleeing persecution or attempting to secure entry into
the U.S., which contrasts with the facts in Akinmade v. INS. 196 F.3d 951, 955-56
(9th Cir. 1999) (granting leniency to “a genuine refugee escaping persecution
[who] may lie about his citizenship to immigration officials in order to flee his
place of persecution or secure entry”).
In contrast to his testimony that guerrillas murdered four of his family
members in 1981, his documentary evidence—namely, a news article—declared
that a “crime group” committed a “crime” in which “strangers killed four members
of one family[.]” We have ruled that substantial evidence supported an adverse
credibility finding where inconsistencies between a noncitizen’s testimony and his
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documentary evidence “b[ore] directly on [his] claim of persecution[.]” Manes v.
Sessions, 875 F.3d 1261, 1264 (9th Cir. 2017) (citation omitted). The issue of
whether his family members were murdered by guerrillas or unknown criminals
bears directly on his persecution claim.
His demeanor supported the adverse credibility finding because he
“provided various excuses and [] answers” regarding the incongruence between his
testimony and his documentary evidence on the issue of whether guerrillas or
unknown criminals committed the murders. An IJ is “in the best position to assess
demeanor and other credibility cues that we cannot readily access on review.”
Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010).
Considering the agency’s “specific, cogent reason[s]” and the totality of the
circumstances, we conclude that substantial evidence supported the adverse
credibility finding. Lei Li v. Holder, 629 F.3d 1154, 1157 (9th Cir. 2011) (citation
omitted).
Finally, we conclude that Batres-Roca waived any challenge to the agency’s
denial of CAT protection. See Fed. R. App. 28(a)(8)(A). The body of his opening
brief only references CAT protection in one header, and neither advances
arguments regarding his eligibility for CAT protection nor alleges that he suffered
harm rising to the level of torture. See Martinez- Serrano v. INS, 94 F.3d 1256,
1259-60 (9th Cir. 1996) (deeming an issue waived when it was referenced only in
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the statement of the case and not discussed in the body of a noncitizen’s opening
brief).
PETITION FOR REVIEW DENIED.
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