Unreported / Non-Citable
Background
Jose Francisco Rivera-Escobar, a native and citizen of El Salvador, petitioned pro se for review of a Board of Immigration Appeals (BIA) order dismissing his appeal from an immigration judge's (IJ) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Ninth Circuit had jurisdiction under 8 U.S.C. § 1252 and reviewed the agency's factual findings under the deferential substantial evidence standard, applying the REAL ID Act standards governing adverse credibility determinations.
Rivera-Escobar's claims centered on an alleged police beating in August 2016. The IJ found him not credible based on inconsistencies between his testimony and documentary evidence concerning the duration of the beating, the identity of the person fleeing from the police, and what happened to the individuals he claimed were with him at the time. The BIA dismissed his appeal, and he timely petitioned for review. The panel, consisting of Circuit Judges Callahan and Lee and District Judge Ezra sitting by designation, determined the case suitable for decision without oral argument.
The Court’s Holding
The Ninth Circuit denied the petition for review. The court held that substantial evidence supported the agency's adverse credibility determination. Citing 8 U.S.C. § 1158(b)(1)(B)(iii) and Li v. Garland, the court affirmed that an IJ may base credibility findings on the totality of circumstances, including minor inconsistencies, without regard to whether they go to the heart of the claim. The specific inconsistencies identified—regarding the duration of the August 2016 police beating, the identity of the person fleeing, and the fate of Rivera-Escobar's companions—were deemed sufficient to uphold the adverse credibility finding, and his explanations did not compel a contrary conclusion.
Because Rivera-Escobar's asylum and withholding of removal claims relied on his testimony, the adverse credibility determination was fatal to both. The court reiterated that failure to meet the lower asylum standard necessarily results in failure to meet the higher withholding standard. Regarding the CAT claim, the court held that substantial evidence also supported its denial. The CAT claim was based on the same discredited evidence of the police beating, and Rivera-Escobar pointed to no other record evidence compelling the conclusion that it is more likely than not he would be tortured by or with the acquiescence of the government if returned to El Salvador. The court granted a motion to withdraw non-opposition to a motion to stay removal and denied the motion to stay removal.
Key Takeaways
- Substantial evidence supported the adverse credibility determination based on inconsistencies between testimony and documentary evidence regarding the duration of a police beating, the identity of a fleeing person, and the fate of companions.
- An applicant's explanations for inconsistencies do not compel reversal if the agency's finding is supported by substantial evidence under the totality of the circumstances standard.
- Failure to satisfy the asylum burden of proof necessarily results in failure to establish eligibility for withholding of removal.
- A CAT claim based on the same discredited testimony fails unless the petitioner points to other record evidence compelling the conclusion that torture is more likely than not upon return.
- The panel denied the petition for review and denied the motion to stay removal.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit's deference to agency credibility determinations under the REAL ID Act's totality-of-the-circumstances framework. It illustrates that even seemingly minor inconsistencies—such as the duration of an assault or the identity of a third party—can sustain an adverse credibility finding when they pertain to the central event underlying the claim. The decision also underscores the derivative nature of withholding of removal and CAT claims when they rely exclusively on testimony deemed not credible, absent independent corroborating evidence in the record.