NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN GEOVANY LEYVA- No. 17-71072
MARTINEZ,
Agency No. A097-543-682
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 14, 2022**
Pasadena, California
Before: BENNETT and KOH, Circuit Judges, and KATZMANN,*** Judge.
Marvin Leyva-Martinez (“Petitioner”), a native and citizen of Honduras,
petitions for review of the denial of his applications for withholding of removal
*
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 Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition.
Petitioner entered the United States in 2004. In February 2013, Petitioner
was arrested for, and later convicted of, aiding and abetting an exhibition of speed
in violation of California law. Following this conviction, the Department of
Homeland Security initiated removal proceedings against Petitioner. Petitioner
conceded removability and applied for asylum, withholding of removal, and CAT
protection on October 7, 2014. In his application, Petitioner stated that he feared
returning to Honduras because he was afraid of his former gang, Mara Salvatrucha
(“MS”), which he had “abandon[ed].”
Sometime in 2014, after removal proceedings began, Petitioner received a
prominent face tattoo with the letters “MS” on his upper lip. On November 29,
2016, Petitioner submitted a second application for asylum, withholding of
removal, and CAT protection. In his second application, Petitioner stated that he
was not in the MS gang anymore, and that he feared returning to Honduras because
of his visible gang tattoos.
An immigration judge (“IJ”) conducted a merits hearing on November 30,
2016. At the merits hearing, Petitioner admitted that he lied in his application for
asylum, withholding of removal, and CAT protection about being a former gang
member. Petitioner admitted that he was a current MS gang member.
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On November 30, 2016, the IJ denied Petitioner’s application for asylum,
withholding of removal, and CAT protection. The IJ determined that Petitioner
was not a credible witness because he lied about his gang membership status. The
IJ denied Petitioner’s applications for asylum and withholding of removal because
Petitioner’s testimony, which constituted the primary bases for his claims for
asylum and withholding of removal, was not credible. The IJ also denied
Petitioner’s application for CAT protection because Petitioner did not present
sufficient evidence to establish that he would more likely than not be tortured
because of his gang-related tattoos upon his return to Honduras. On April 4, 2017,
the Board of Immigration Appeals (“BIA”) agreed with the IJ’s decision.
Before this court, Petitioner challenges only the IJ and BIA’s decisions
regarding his entitlement to withholding of removal and CAT protection.
1. Petitioner is not entitled to withholding of removal because the IJ’s
adverse credibility determination is supported by substantial evidence. To qualify
for withholding of removal, an applicant must show a “‘clear probability’ of future
persecution.” Garcia v. Holder, 749 F.3d 785, 792 (9th Cir. 2014) (quoting
Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003)). “That persecution
must be apparent from objective evidence.” Id. A petitioner carries the burden of
persuading the fact finder that the evidence offered is credible. Id.
Under our case law, lying to immigration authorities during removal
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proceedings is evidence that supports an IJ’s adverse credibility determination.
Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir. 2011). Petitioner admitted that he
lied. Without credible testimony, Petitioner cannot carry his burden to prove he is
entitled to withholding of removal. See Garcia, 749 F.3d at 792. Therefore, the IJ
and BIA’s decision denying Petitioner withholding of removal is supported by
substantial evidence.1
2. Petitioner is not entitled to CAT protection because the IJ and BIA’s
decisions are supported by substantial evidence. To be entitled to CAT protection,
a noncitizen is required to demonstrate to the IJ and BIA that it is “more likely than
not that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(1) & (2).
To carry his burden, Petitioner cites only the country report for Honduras
and one “travel warning” from the Department of State. Both documents state that
there is some police corruption and gang violence, but the country report also
states that Honduran law enforcement is attempting to combat gang violence and
police corruption. Neither document provides evidence that people with gang
tattoos, like Petitioner, will face high risk of torture. Instead, Petitioner’s evidence
1
Petitioner also challenges the IJ and BIA’s determination that he failed to show a
clear probability that his life or freedom would be threatened on account of a
protected ground. We need not address this argument because we affirm IJ and
BIA’s adverse credibility determination.
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shows only generalized corruption and gang violence. Under our precedent,
“[g]eneralized evidence of violence in a country is itself insufficient to establish
that anyone in the government would acquiesce to a petitioner’s torture.” B.R. v.
Garland, 26 F.4th 827, 845 (9th Cir. 2022) (citations omitted). Petitioner’s
evidence does not support a finding that he will more likely than not be tortured if
removed to Honduras. Therefore, the IJ and BIA’s decisions are supported by
substantial evidence.
PETITION DENIED.
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