Rita Carrion Garcia v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RITA MARIA CARRION GARCIA, No. 12-73781

AKA Maria Burgos Martinez, AKA

Maria Castillo, AKA Maralena Agency No.

Castillo Cruz, A201-280-642

Petitioner,

v. OPINION

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 11, 2014—San Francisco, California

Filed April 16, 2014

Before: J. Clifford Wallace, M. Margaret McKeown,

and Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

2 CARRION GARCIA V. HOLDER

SUMMARY*

Immigration

The panel denied a petition for review of the Board of

Immigration Appeals’ denial of withholding of removal and

protection under the Convention Against Torture.

The panel held that substantial evidence supported the

agency’s adverse credibility determination based on

petitioner’s various lies to U.S. officials and to the district

court judge, especially about her identity and country of

origin, and the fact that she equivocated about her prior

misrepresentations during her interview with the IJ.

The panel further held that the agency reasonably

concluded that the corroborating documents petitioner

submitted were not sufficient to rehabilitate her testimony, or

to support her domestic violence based withholding of

removal claim independently.

The panel deferred to the agency’s determination that

petitioner failed to qualify for CAT protection because the

evidence did not compel the conclusion that she was the

victim of domestic abuse.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CARRION GARCIA V. HOLDER 3

COUNSEL

Kari E. Hong, Supervising Attorney, and Mackenzie Houck

and Marija Ozolins (argued), Student Counsel, Boston

College Law School, Newton, Massachusetts, for Petitioner.

Tiffany L. Walters (argued), Ernesto H. Molina, Jr., Assistant

Director, and Dana M. Camilleri, Trial Attorney, Office of

Immigration Litigation; and Stuart F. Delery, Assistant

Attorney General, Civil Division, United States Department

of Justice, Washington, D.C., for Respondent.

OPINION

GOULD, Circuit Judge:

Petitioner Rita Maria Carrion Garcia, a native of the

Dominican Republic, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision affirming the denial

of her application for withholding of removal and protection

under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the

petition for review.

I

Carrion Garcia gives the following account of her

personal history. She was born in Santo Domingo in the

Dominican Republic, where she lived with her parents until

age twenty-two, when she moved to live separately with her

children. Carrion Garcia’s relationship with the children’s

father ended in 2001, but her children moved to the United

4 CARRION GARCIA V. HOLDER

States to live with him in July 2010 after a robbery at Carrion

Garcia’s home.

Carrion Garcia met Ernesto Valdez in 2007, and they

began dating. Their relationship became intimate in 2008,

and she moved in with him in August 2010, after her children

had already moved to the United States. Their relationship

began to change in October 2010 when he started swearing at

her, calling her a “prostitute,” and spending time with new

friends who were using drugs. Valdez began physically

abusing Carrion Garcia in November 2010. The abuse was

extreme. He would hit her and kick her in the ribs and

stomach, and would rape and sodomize her when he returned

home drunk.

Valdez threatened Carrion Garcia, saying that he would

kill her if she left him or filed a police report against him.

Ashamed of the abuse and concerned by the threats made by

Valdez, Carrion Garcia did not consider filing a police report

challenging his abuse. Carrion Garcia also knew of a

neighbor who had been abused by her husband. When the

neighbor called the police, her husband was only held in jail

until the next day when he returned home and hit her again.

In January 2011, Carrion Garcia left Valdez to escape the

abuse. She traveled to three separate locations in the

countryside over the course of several weeks, staying with

friends and family, and each time Valdez found her,

apologized, and begged for her forgiveness. When she

refused his entreaties to return with him to Santo Domingo,

he became “furious,” threatened her, and frightened her.

Following the third such encounter, Carrion Garcia

returned to her mother’s home, and her mother helped gather

CARRION GARCIA V. HOLDER 5

money from relatives for Carrion Garcia to leave the

Dominican Republic. Because Carrion Garcia had a six-

month visa for Mexico, she decided to travel to Toluca,

Mexico, with a friend. They later traveled to Nogales,

Mexico, where Carrion Garcia was unable to find

employment, and she decided to enter the United States.

Carrion Garcia was caught trying to enter the United

States four times. She first entered the United States in May

2011 by crossing a border fence, and was caught by Customs

and Border Protection (“CBP”) officers. A CBP officer who

spoke Spanish interviewed her, and she did not have

difficulty conversing with him. She gave the CBP officer a

false name, date of birth, and claimed that she was Mexican.

Carrion Garcia later testified that she gave false information

so that she would not be returned to Santo Domingo. She

was removed to Mexico. Fifteen days later she crossed the

border again and was immediately apprehended by CBP

officers. Carrion Garcia gave the same false information to

the Spanish-speaking CBP officer who interviewed her, and

claimed that her parents were Mexican citizens. The same

events transpired on her third attempted entry into the United

States.

On her fourth attempt to enter the United States, Carrion

Garcia was again apprehended by CBP officers, and

interviewed by a Spanish-speaking officer. She gave again

false identifying information, and was taken to Tucson where

she was detained for three days. Carrion Garcia then

appeared in U.S. District Court represented by a Spanish-

speaking attorney. Carrion Garcia gave her attorney a false

name and told her she was from Mexico. A Spanish

interpreter was also present during her court appearance, and

Carrion Garcia acknowledged that she understood both her

6 CARRION GARCIA V. HOLDER

attorney and the proceedings. Although the district court

judge told Carrion Garcia that she must tell the truth, Carrion

Garcia gave the false name to the judge and said that she was

from Mexico so that she would not be sent back to the

Dominican Republic. Carrion Garcia was convicted of illegal

reentry and spent thirty days in jail, after which she was

returned to Nogales. However, a Mexican border patrol

officer who reviewed her information discovered that Carrion

Garcia was not from Mexico. She then claimed that she was

from El Salvador, and was brought to the detention center in

Eloy, Arizona.

After a “reasonable fear” interview, the Department of

Homeland Security referred Carrion Garcia’s withholding of

removal application to an immigration judge (“IJ”). Carrion

Garcia presented additional evidence to support her

withholding of removal and CAT claims, including: her

mother’s affidavit, a police report filed by her mother on June

2, 2012, and an affidavit “from a third person who resided in

the Dominican Republic” and who now lives in New York.

Also, Carrion Garcia submitted the expert testimony of Dr.

Wayne Westhoff regarding family violence and women’s

health in the Dominican Republic. Dr. Westhoff testified that

domestic violence in the Dominican Republic is widespread,

and that police are “uninterested in being of assistance

because of the cultural aspect of not interfering with domestic

or family issues.” A country report submitted by Carrion

Garcia supports Dr. Westhoff’s expert opinions. After a

hearing and in consideration of the evidence presented, the IJ

found that Carrion Garcia was not credible, and denied her

application for withholding of removal and protection under

the CAT. The BIA affirmed the denial of relief.

CARRION GARCIA V. HOLDER 7

II

We review factual findings, including adverse credibility

determinations, for substantial evidence. Shrestha v. Holder,

590 F.3d 1034, 1048 (9th Cir. 2010). Factual findings “are

conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); see Smolniakova v. Gonzales, 422 F.3d

1037, 1044 (9th Cir. 2005). This standard is very deferential,

requiring only “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion,”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation

omitted). Because the BIA affirmed the IJ’s findings of fact

while adding its own reasons, we review both decisions.

Chand v. INS, 222 F.3d 1066, 1072 n.7 (9th Cir. 2000). We

review questions of law de novo. De Martinez v. Ashcroft,

374 F.3d 759, 761 (9th Cir. 2004).

III

We first address the adverse credibility determination

made by the IJ and affirmed by the BIA, which affects both

of Carrion Garcia’s claims. After the enactment of the REAL

ID Act, a trier of fact may base an adverse credibility

determination on the “totality of the circumstances,”

including, for example, the applicant’s responsiveness,

consistency between written and oral statements, the internal

consistency of those statements, and any inaccuracies or

falsehoods “without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of the applicant’s

claim, or any other relevant factor.” Shrestha, 590 F.3d at

1039–40 (quoting 8 U.S.C. §§ 1158(b)(1)(B)(iii)). The IJ

“must provide a specific cogent reason for the adverse

credibility finding,” Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.

8 CARRION GARCIA V. HOLDER

2002) (internal quotation marks and citation omitted), but we

will only overturn the IJ’s conclusion when “the evidence

compels a contrary result.” Monjaraz-Munoz v. INS,

327 F.3d 892, 895 (9th Cir. 2003).

Here, substantial evidence supports the IJ’s adverse

credibility determination, which the BIA affirmed. The IJ

based his determination mainly on two factors. The first was

Carrion Garcia’s various lies to U.S. officials and to the

district court judge, especially about her identity and country

of origin. The second was that she equivocated during her

interview with the IJ. These factors are generally sufficient

to support an adverse credibility determination. See Don v.

Gonzales, 476 F.3d 738, 741 n.5 (9th Cir. 2007) (“Admission

of prior dishonesty can support an adverse credibility

determination.”).

Although Carrion Garcia claims that she cannot

remember whether the four CBP officials told her to tell the

truth, it is evident that she understood that she was lying in

each interview. She also lied to her attorney and to the

district court judge, who had made it clear to Carrion Garcia

that she was under oath.

Carrion Garcia argues that the nature of her withholding

claim—based on physical and sexual abuse—did not

sufficiently inform the IJ’s and BIA’s consideration of her

falsehoods. See Kebede v. Ashcroft, 366 F.3d 808, 811 (9th

Cir. 2004); Paramasamy v. Ashcroft, 295 F.3d 1047, 1052–53

(9th Cir. 2002) (describing the particular difficulties that

many rape victims face in relating their assaults). However,

the IJ did acknowledge her assertion that she gave false

information to the CBP officers “for fear that she would be

returned to the Dominican Republic.” Although the IJ did not

CARRION GARCIA V. HOLDER 9

explicitly refer to the sexual abuse, the record shows that he

understood the situation and the nature of Carrion Garcia’s

alleged fears regarding the abuse. For example, he stated:

“To be sure, the Court must take into account the context of

her misrepresentations in assessing the weight to be given to

the misrepresentations.” These acknowledgments of Carrion

Garcia’s particular situation significantly undermine her

assertion that the IJ and BIA did not properly take account of

the difficulties associated with reporting sexual abuse.

Apart from her misrepresentations to the CBP officers and

those made during the district court proceedings, the IJ’s

adverse credibility determination is also supported by her

equivocations during the interview, which the IJ called “a

substantial basis for finding her not credible.” Carrion Garcia

argues that she was not making denials or equivocations, but

rather that “she was forthright about her prior

misrepresentations.” But while the record might possibly be

interpreted in that way, it falls far short of compelling the

conclusion that Carrion Garcia was forthright. Carrion

Garcia stated repeatedly that the CBP officers asked her for

“name, date of birth, and just common questions . . . and

that’s it.” But once the IJ pointed out that CBP officers are

also required to ask about potential grounds for asylum or

other discretionary relief, she claimed that she did not

remember whether she had been asked such questions.

Beyond such equivocations, the IJ also noted that the

additional “statements are critical portions of the Border

Patrol interviews,” and he seriously doubted that four

separate officers on four separate occasions would omit the

statements, and thought she should have remembered the

statements that pertained so directly to her situation. This

conclusion is reasonable and the record does not compel a

different interpretation.

10 CARRION GARCIA V. HOLDER

Carrion Garcia further asserts that she was not given “an

opportunity to explain the inconsistencies on which [the IJ]

would base her adverse credibility determination” as required

by Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir.

2009). An IJ should give fair notice of inconsistencies in

testimony or points on which the IJ thinks the witness is not

being responsive. See Joseph v. Holder, 600 F.3d 1235,

1244–45 (9th Cir. 2010); Soto-Olarte, 555 F.3d at 1092. But

here the record shows that the IJ continually asked questions

to clarify what Carrion Garcia meant by her inconsistent

answers, such as: “Are you telling me that none of the four

officers told you that?” and “So you’re telling me they did not

say that, or that you don’t remember whether they said it?”

The IJ also explicitly asked Carrion Garcia about her

misrepresentations to the CBP officers and to the district

court. Carrion Garcia was given many opportunities to

clarify or explain her inconsistent statements, but she did not

do so. The principle that we voiced in Soto-Olarte is not

applicable.

We hold that substantial evidence supports the IJ’s and

the BIA’s adverse credibility determinations. Carrion Garcia

suggests plausible alternatives to the IJ’s conclusion. Yet she

cannot show that the record compels a different

interpretation, and that is fatal to her challenge to the adverse

credibility determination.

IV

To qualify for withholding of removal, an applicant must

show a “clear probability” of future persecution. Alvarez-

Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003). That

persecution must be apparent from objective evidence,

Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.

CARRION GARCIA V. HOLDER 11

1985), and must be “on account of” one of the statutorily

enumerated grounds: race, religion, nationality, political

opinion, or membership in a particular social group, INS v.

Elias-Zacarias, 502 U.S. 478, 480 (1992). A petitioner

carries the burden of persuading the fact finder that the

evidence offered is credible. Mejia-Paiz v. INS, 111 F.3d

720, 722 (9th Cir. 1997).

Substantial evidence supports the IJ’s and the BIA’s

denial of relief under withholding of removal because Carrion

Garcia cannot overcome the adverse credibility

determination. The IJ considered the additional corroborating

documents presented by Carrion Garcia and found them

“insufficient to rehabilitate [Carrion Garcia’s] testimony”

because the preparers, her mother and the man from the

Dominican Republic living in New York, were not available

for cross examination and the authenticity of the documents

relied on Carrion Garcia’s discredited testimony. These

documents do not reveal any independent knowledge of

Carrion Garcia’s alleged abuse. The IJ and BIA reasonably

concluded that the documents were not sufficient to

rehabilitate Carrion Garcia’s testimony, or to support a

withholding of removal claim independently. The record

does not compel a conclusion to the contrary and so her claim

for withholding of removal fails.

V

Finally, we turn to Carrion Garcia’s claim that she is

entitled to protection under the CAT. The CAT “provides

that a signatory nation will not expel, return . . . or extradite

a person to another country where there are substantial

grounds for believing that he would be in danger of being

subjected to torture.” Al-Saher v. INS, 268 F.3d 1143, 1146

12 CARRION GARCIA V. HOLDER

(9th Cir. 2001) (internal quotation marks and citation

omitted) (omission in original), amended by 355 F.3d 1140

(9th Cir. 2004). To qualify for CAT relief, an applicant must

establish that “he [or she] is more likely than not to suffer

intentionally-inflicted cruel and inhuman treatment” if

removed. Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir.

2005) (citation omitted).

An adverse credibility determination does not, by itself,

necessarily defeat a CAT claim, Kamalthas v. INS, 251 F.3d

1279, 1282–83 (9th Cir. 2001), because CAT claims are

“analytically separate” from claims for withholding of

removal. Id. at 1283. Rather, in determining whether a

petitioner will more likely than not be tortured if returned to

his or her home country, “all evidence relevant to the

possibility of future torture shall be considered.” 8 C.F.R.

§ 1208.16(c)(3). Kamalthas only requires that a petitioner

have the opportunity to introduce additional “documentary

evidence of torture,” and that the IJ and BIA consider all the

evidence presented. Almaghzar v. Gonzales, 457 F.3d 915,

921–22 (9th Cir. 2006). Contrary to Carrion Garcia’s

assertion, we do not require that “the BIA . . . discuss each

piece of evidence submitted.” Cole v. Holder, 659 F.3d 762,

771 (9th Cir. 2011). Unless clear indications exist that the IJ

or BIA did not consider the documentary evidence, general

language that the agency “considered all the evidence before

[it]” is sufficient. Id. at 771 (quoting Almaghzar, 457 F.3d at

922) (alteration in original).

Nothing demonstrates that the BIA neglected to consider

all of the evidence before it. Carrion Garcia’s adverse

credibility determination undermines both her own testimony

and the external evidence reliant on it, including most of the

police report filed by her mother, her mother’s affidavit, and

CARRION GARCIA V. HOLDER 13

the affidavit of the New York man familiar with her situation,

all of which were derived from her own assertions. None of

these sources shows independent, first-hand knowledge of

Carrion Garcia’s alleged domestic abuse, and Carrion Garcia

submitted no independent corroborating evidence such as

medical records, police investigative reports or witness

statements. In circumstances such as these, the BIA’s general

language that “there is no evidence in the record that the

applicant was ever tortured in the Dominican Republic, or

that she faces a clear probability of torture” is sufficient to

demonstrate that all evidence was considered. To say that

there is “no evidence in the record” clearly implies that the

BIA has looked at all of the evidence in the record. Dr.

Westhoff’s expert testimony and the country report, although

supporting the conclusion that domestic violence is a

widespread problem in the Dominican Republic, do not

compel the conclusion that Carrion Garcia in particular was

a victim. As such, we defer to the IJ and BIA’s conclusion

that relief under the CAT is unavailable. See Almaghzar,

457 F.3d at 922–23.

VI

Carrion Garcia did not show that the record compels the

conclusion that the IJ and BIA erred in reaching the adverse

credibility determination. Because her testimony and the

evidence reliant on it are not credible, and she presents no

independent evidence corroborating that she was a victim of

the alleged domestic abuse at the hand of Valdez, we

conclude that the denial of relief by the BIA was permissible

under the law, and we decline to remand for further

proceedings.

PETITION FOR REVIEW DENIED.