Ruiz-Colmenares v. Garland, No. 20-72672 (9th Cir. 2022)
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Ruiz-Colmenares, a Mexican citizen, has illegally entered the U.S. multiple times, wherein he was convicted for multiple felonies. He has been deported three times. During his fourth deportation, Ruiz-Colmenares expressed for the first time a fear of returning to Mexico and that he had been robbed and assaulted by police officers in Mexico. After finding Ruiz-Colmenares not credible, an IJ rejected his claim for deferral of removal under the Convention Against Torture (CAT). The BIA affirmed.
The Ninth Circuit denied a petition for review, rejecting an argument that the agency lacked jurisdiction because his charging document omitted the time and date of his hearing, That argument was not presented before the IJ or BIA. The adverse credibility determination was supported by substantial evidence, based on inconsistencies and omissions in Ruiz-Colmenares’s written, verbal, and documentary evidence regarding what happened in Mexico. Even minor inconsistencies that have a bearing on a petitioner’s veracity may constitute the basis for an adverse credibility determination; “this type of evolving story is precisely what one would expect if a petitioner is fabricating or embellishing past harms.” The agency properly considered Ruiz-Colmenares’ failure to mention fear of returning to Mexico, or the robberies, during previous deportation proceedings. Even if the record compelled reversal of the adverse credibility determination, substantial evidence supports the finding that Ruiz-Colmenares did not suffer past torture and does not face a particularized risk of future torture if returned to Mexico.
Court Description: Immigration. Denying Juan Ruiz-Colmenares’s petition for review of a decision of the Board of Immigration Appeals, the panel held that (1) it lacked jurisdiction to consider Ruiz- Colmenares’s unexhausted challenge to his hearing notice; and (2) the agency’s adverse credibility determination was supported by substantial evidence and Ruiz-Colmenares failed to carry his burden to succeed on his claim for deferral of removal under the Convention Against Torture. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Ruiz-Colmenares argued that the agency lacked jurisdiction over his proceedings because his charging document, a Notice of Referral, failed to specify the time and date of his hearing. The panel concluded that it lacked jurisdiction to consider Ruiz-Colmenares’s argument because he failed to raise it before the agency. Ruiz-Colmenares had previously been deported three times, and in the processing of his present fourth deportation proceedings expressed for the first time a fear of returning to Mexico because he had been robbed and assaulted by police officers in Mexico after each of his prior three deportations. The panel held that substantial evidence supported the immigration judge’s adverse credibility determination based on inconsistencies and omissions within and between Ruiz- Colmenares’s written, verbal, and documentary evidence RUIZ-COLMENARES V. GARLAND 3 regarding what happened to him in Mexico and when. As to testimonial inconsistencies concerning dates, the panel wrote that even minor inconsistencies that have a bearing on a petitioner’s veracity may constitute the basis for an adverse credibility determination. The panel explained that this type of evolving story is precisely what one would expect if a petitioner is fabricating or embellishing past harms, and it is eminently reasonable that the IJ would conclude that these changes reflected poorly on Ruiz-Colmenares’s credibility. The panel further held that the agency properly considered and weighed Ruiz-Colmenares’s failure to mention any fear of returning to Mexico, or the robberies, during his previous three deportation proceedings. The panel also held that the IJ reasonably concluded that Ruiz-Colmenares’s failure to provide any corroboration could not rehabilitate his incredible testimony. The panel held that even if the record compelled reversal of the agency’s adverse credibility determination, substantial evidence would still support the agency’s finding that Ruiz- Colmenares did not suffer past torture and does not face a particularized risk of future torture if returned to Mexico.
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