Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1990)

Raul MARTINEZ-CENTENO, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70023.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 15, 1989.Decided Jan. 31, 1990.

Before POOLE, NELSON and WIGGINS, Circuit Judges.


MEMORANDUM* 

The Immigration Judge (IJ) denied Martinez's application for asylum or withholding of deportation because he did not believe Martinez's testimony, and denied Martinez's request for voluntary departure because he found that Martinez had mislead the court with his nonresponsive testimony. We have jurisdiction under 8 U.S.C. § 1105a(a) (1988), and we affirm.

This court reviews credibility and factual findings in deportation proceedings under the substantial evidence standard. Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir. 1988). If the IJ's credibility finding is based on articulated reasons fairly supported by the record, we must respect it. Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir. 1986).

The IJ articulated four reasons for his adverse credibility finding. First, the IJ disbelieved Martinez's claim that he was ignorant of the United States' requirement that aliens obtain papers to enter the country. This reason is fairly supported by the record. Martinez knew that he needed papers to enter Guatemala from Nicaragua, and he obtained those papers. He lost his papers in Guatemala and, therefore, entered Mexico surreptitiously by crossing a river. He then entered the United States from Mexico by crawling through a hole in the border fence. The IJ properly considered these facts because they call into question the veracity of Martinez's claim of ignorance. See Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986).

Second, the IJ found that Martinez's testimony regarding the number of times the Sandinista soldiers came to his house was inconsistent. This reason is also fairly supported by the record. In his application for asylum Martinez asserted that soldiers came to his house four times over a four month period. On direct examination he stated it was six times. On cross-examination he said it was five. The IJ properly considered this inconsistency because it could reasonably be viewed as Martinez's attempt to enhance his claim of persecution before the IJ. See id. at 1337.

Third, the IJ disbelieved Martinez's testimony that he contributed money to the Contras after his friends were persecuted. This reason is also fairly supported by the record. Martinez knew that his friends, who had also funded the Contras, were taken away by the Sandinistas, and never heard from again. He also knew that if he was arrested he would lose his farm. The IJ properly considered this evidence because it called into question Martinez's claim to have funded the Contras, and was relevant to Martinez's testimony regarding his persecution.

Fourth, the IJ disbelieved Martinez's testimony that he made daily visits to his house knowing that the Sandinistas were searching for him there. This reason is fairly supported by the record. Martinez knew that the soldiers came to his house at different times of the day. The walk from his hiding spot to his house took one and a half hours. Despite the precautions Martinez claims to have taken, there was significant risk in visiting his farm daily. The IJ properly considered these facts because they were directly relevant to whether Martinez feared persecution.

Although the facts of this case are subject to different interpretations, the IJ was in a better position than we to decide whether Martinez was a credible witness. The IJ offered specific reasons, fairly supported by the record, for his adverse credibility finding. We, therefore, affirm the IJ's denial of Martinez's petition for asylum or withholding of deportation.

This court reviews the denial of voluntary departure for abuse of discretion. Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986). The IJ did not abuse his discretion in denying Martinez's request for voluntary departure because the IJ found that although Martinez had not lied outright to the court, he had willfully misled the court with less than candid and nonresponsive testimony. See id. (the Attorney General's discretion to allow voluntary departure depends on whether the alien establishes his good moral character). Additionally, the IJ found that Martinez did not have immediate means to leave the country. See Diric v. INS, 400 F.2d 658, 661 (9th Cir. 1968) cert. denied, 394 U.S. 1015 (1969) (to be eligible for voluntary departure alien must have immediate means to leave the country). We, therefore, affirm the IJ's denial of voluntary departure.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3