NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTOBAL SANTIAGO LUCAS No. 18-71544
SANTOS,
Agency No. A208-417-844
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2022**
San Francisco, California
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
Cristobal Santiago Lucas Santos (“Lucas Santos”), a native and citizen of
Guatemala, petitions for review of the Board of Immigration Appeals’ (the “BIA”)
dismissal of his appeal and denial of his applications for asylum, withholding of
*
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).
removal, and protection under the Convention Against Torture (“CAT”). Before
us Lucas Santos asserts that: (1) he was prejudiced by his attorney’s incompetence
before the agency; (2) the BIA erred in adopting the Immigration Judge’s (the “IJ”)
adverse credibility finding; (3) the BIA failed to address the merits of his claims
for withholding and removal; and (4) the BIA erred in dismissing his claim for
CAT relief. We have jurisdiction pursuant to 8 U.S.C. § 1252(a) and we affirm.
1. Lucas Santos did not raise his ineffective assistance of counsel claim
before the BIA. Accordingly, this issue is not exhausted, and we do not have
jurisdiction to address it. See Puga v. Chertoff, 488 F.3d 812, 815–16 (9th Cir.
2007).
2. Lucas Santos’s challenges to the IJ’s adverse credibility finding fail
because that finding is supported by substantial evidence in the record. We review
the agency’s “factual findings, including adverse credibility determinations, for
substantial evidence.” Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020)
(citing Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013)). We must uphold an
adverse credibility determination “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manes
v. Sessions, 875 F.3d 1261, 1263 (9th Cir. 2017) (per curiam). Accordingly, “only
the most extraordinary circumstances will justify overturning an adverse credibility
determination.” Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010) (quoting
2
Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)).
Although Lucas Santos offered a reasonable explanation for the confusion
concerning the date of his brother’s death, the explanation does not compel the
conclusion that he was credible. The adverse credibility determination is further
supported by Lucas Santos’s conflicting statements that: (1) his brother was killed
by members of another family that owed his brother money; (2) he does not know
who these people are but they once threatened to kill him; (3) the threat came
through Lucas Santos’s uncle; and (4) the threat was made directly to Lucas Santos
over the phone. Moreover, there is evidence that Lucas Santos lied to immigration
officers in 2008 and offered a different reason for entering the United States in
2015.
3. Lucas Santos’s claim that the BIA failed to address the merits of his
claims for asylum and withholding of removal fail because if the adverse
credibility determination is upheld, these claims necessarily fail.
4. Lucas Santos’s claim for CAT relief is also unpersuasive. To qualify for
relief, he must establish that that “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” Garcia-Milian v. Holder,
755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R. § 1208.16(c)(2)). The
applicant must also show that torture will be by public officials or instigated with
their consent or acquiescence. Id. (quoting Zheng v. Ashcroft, 332 F.3d 1186, 1188
3
(9th Cir. 2003)). Here, even taking Lucas Santos at his word, he was never
physically harmed, never informed the police about the alleged threat, resided in
Guatemala for a year after receiving the alleged threat without any additional
threat, and failed to show that the public officials will not or cannot protect him.
Contrary to what Lucas Santos contends, the BIA did not err by failing to
specifically mention his country conditions evidence. See Lopez v. Ashcroft, 366
F.3d 799, 807 n.6 (9th Cir. 2004).
The petition for review is DENIED.
4