GABRIEL MELCHOR VARGAS V. MERRICK GARLAND, No. 20-71836 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 26 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT GABRIEL MELCHOR VARGAS, A/K/A GABRIEL MELCH VARGAS, A/K/A GABRIEL MELENDEZ, Petitioner, U.S. COURT OF APPEALS No. 20-71836 Agency No. A205-313-047 MEMORANDUM* v. MERRICK B. GARLAND, ATTORNEY GENERAL OF THE UNITED STATES, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 20, 2022** Portland, Oregon Before: PAEZ and BADE, Circuit Judges, and LEFKOW,*** District Judge. Petitioner Gabriel Melchor Vargas, a native and citizen of Mexico, seeks * 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 Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. review of the order of the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of the Immigration Judge (IJ) denying him relief in the form of asylum, withholding of removal, cancellation of removal, and protection under Article III of the Convention Against Torture (CAT).1 We have jurisdiction under 8 U.S.C. § 1252. We review the “factual findings underlying the BIA’s determination that a petitioner is not eligible for asylum, withholding of removal, or CAT relief” for substantial evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). To conclude that the BIA’s decision was not supported by substantial evidence, we must find that the record evidence compels a contrary conclusion. Id. Where, as here, the BIA’s decision “relies in part on the immigration judge’s reasoning,” this court reviews both decisions. Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012). We deny the petition for review. 1. Substantial evidence supports the BIA’s adverse credibility determination. The IJ must provide “specific and cogent reasons” for the adverse credibility determination. Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010). In doing so, the IJ must consider the “totality of the circumstances” and may analyze factors including demeanor, candor, responsiveness, plausibility, inconsistency, inaccuracy, and falsehood. Id. at 1044 (citing 8 U.S.C. 1 On appeal, Melchor Vargas does not challenge the agency’s denial of his application for cancellation of removal. 2 § 1158(b)(1)(B)(iii)). In considering the totality of the circumstances, the IJ must consider “a petitioner’s explanation for a perceived inconsistency and relevant record evidence.” Id. at 1044. Here, the IJ provided specific, cogent reasons for finding Melchor Vargas not credible—namely, Melchor Vargas’s demeanor and the multiple material inconsistencies between his hearing testimony and his written declaration. Additionally, the IJ afforded Melchor Vargas the opportunity to provide explanations when confronted with these discrepancies, and the IJ gave reasoned consideration to Melchor Vargas’s explanations in his oral decision. Melchor Vargas does not further explain these inconsistencies. Substantial evidence supports the adverse credibility determination. 2. The IJ did not abuse his discretion in denying Melchor Vargas’s request for a continuance. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). Melchor Vargas was granted multiple continuances over a period of several years so that he could seek counsel; on two occasions, he was represented, but counsel withdrew due to his non-cooperation. The IJ gave full consideration to the factors supporting and opposing the grant of a continuance. 3. Substantial evidence supports the agency’s denial of asylum and withholding of removal. Melchor Vargas did not meet his burden of establishing past persecution or a well-founded fear of future persecution. Melchor Vargas also 3 did not clearly articulate a particular social group before the IJ, and the IJ did not err by not requiring him to do so. See Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (BIA 2018) (noting it is “an applicant’s burden to establish her claim for relief or protection on the record” before the IJ and that the IJ is required to “seek clarification” if the applicant for relief “is not clear as to the exact delineation of the proposed social group”). Finally, the BIA did not err in deciding that Melchor Vargas’s proposed social group of “men who are being removed to Mexico after living in the United States for an extended period of time,” raised for the first time on his appeal to the BIA, was not cognizable. We have rejected very similar definitions, and Melchor Vargas does not carry his burden of demonstrating why his definition differs in a material way. See, e.g., Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (rejecting “returning Mexicans from the United States” as too broad to be a cognizable social group). 4. Substantial evidence supports the agency’s denial of Melchor Vargas’s CAT claim. While an adverse credibility determination is not independently dispositive of a CAT claim, see Shrestha, 590 F.3d at 1048–49, Melchor Vargas would need to point to other documentary evidence to meet his burden of demonstrating that it is more likely than not that he will be tortured if removed, 8 C.F.R. § 1208.16(c)(2). Melchor Vargas failed to meet his burden based only on country conditions reports generally describing widespread violence 4 and crime in Mexico. PETITION DENIED. 5
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