Yoan Cata-Frometa v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YOAN LEONARD CATA-FROMETA, No. 20-72699 Petitioner, Agency No. A201-564-088 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 18, 2021** Phoenix, Arizona Before: GILMAN,*** CALLAHAN, and BRESS, Circuit Judges. Yoan Leonard Cata-Frometa, a Cuban citizen, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal of an Immigration * 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 Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Judge (IJ) order denying his requests for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We review for substantial evidence and may grant relief only if the record compels a contrary conclusion. Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). Adverse credibility determinations are reviewed under the same standard. See id. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. Substantial evidence supports the IJ’s finding that Cata-Frometa was not credible. “[A]n adverse credibility determination must be made after considering ‘the totality of circumstances, and all relevant factors.’” Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). In assessing Cata-Frometa’s credibility, the IJ could thus consider the consistency between Cata- Frometa’s testimony and “other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii). Here, Cata-Frometa’s asylum application did not cite any physical injuries. But Cata-Frometa testified that in October 2015, he was detained for five days, beaten, and assaulted. This incident was not mentioned in Cata-Frometa’s asylum application. Similarly, although Cata-Frometa noted in his asylum application an incident that took place in February 2019, he testified to being physically harmed on that occasion, despite his asylum application not mentioning this physical harm. “Material alterations in the applicant’s account of persecution are sufficient to support an adverse credibility finding.” Zamanov v. Holder, 649 F.3d 969, 973–74 2 (9th Cir. 2011) (denying petition for review because the petitioner’s “supplemental declaration and his testimony before the IJ t[old] a much different—and more compelling—story of persecution that his initial application and testimony before the asylum officer”). In addition, when pressed, Cata-Frometa gave varying explanations for the identified inconsistencies. These explanations, which the IJ reasonably regarded as “evasive,” lend further support to the IJ’s adverse credibility determination. 2. Substantial evidence further supported the denial of asylum and withholding of removal. To qualify for asylum, Cata-Frometa must show either that he (1) suffered past persecution (which creates a rebuttable presumption of eligibility); or (2) has a well-founded fear of future persecution in Cuba on account of race, religion, …

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