Francisco Flores Barrera v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO FLORES BARRERA, AKA No. 15-72997 Roxana Espinoza Pena, AKA Jessica Flores, AKA Mariana Andrea Flores, AKA Javier Agency No. A200-964-012 Torres Valdez, Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 14, 2022** Pasadena, California Before: PAEZ, SMITH,*** and BADE, Circuit Judges. Dissent by Judge PAEZ. * 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 D. Brooks Smith, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Francisco Flores Barrera (aka Mariana Andrea Flores1), a native of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal of an immigration judge’s (“IJ”) denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review factual findings, including adverse credibility determinations, for substantial evidence, and legal questions de novo. Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020). We deny the petition. 1. Considering the “totality of the circumstances[ ] and all relevant factors,” Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc) (alteration in original), we conclude that substantial evidence supports the agency’s adverse credibility determination. The IJ and BIA found significant discrepancies between statements that Flores made in her border and credible fear interviews and statements that she made in her second asylum application and hearing testimony about the basis of her claims.2 Thus, the agency concluded that Flores was not 1 After removal proceedings commenced, Flores, a transgender woman, officially changed her name to Mariana Andrea Flores. 2 Flores filed an earlier asylum application, which was denied, and she did not appeal and was deported. In the instant petition, she challenges the IJ’s determination that she was precluded from filing a second asylum application and argues that she established changed country conditions. The BIA assumed Flores was not precluded from applying for asylum and, thus, did not reach these issues. We therefore do not consider them. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1075 (9th Cir. 2020) (“Our review is limited to those grounds explicitly relied 2 credible. In her border and credible fear interviews, Flores told immigration officers that she had not been persecuted in Mexico. In both interviews, she stated that she came to the United States because she feared that her family would harm her because she is transgender. During the credible fear interview, when asked if she “fear[ed] the gov[ernment] or police of [her] home country would harm [her], she responded “I don’t fear they will harm me, …

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