Marco Polo v. Merrick Garland

FILED NOT FOR PUBLICATION JUN 8 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARCO POLO, No. 16-70472 Petitioner, Agency No. A205-177-499 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 5, 2023** Pasadena, California Before: WALLACE and OWENS, Circuit Judges, and FITZWATER,*** District Judge. * 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 Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Marco Polo, a native and citizen of Peru, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ’s”) order denying Polo’s applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 to conduct judicial review. We deny the petition. “We review factual findings, including adverse credibility determinations, for substantial evidence.” Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). Legal conclusions, such as frivolousness findings, are reviewed de novo. Kulakchyan v. Holder, 730 F.3d 993, 995 (9th Cir. 2013) (per curiam). 1. The BIA relied on the IJ’s adverse credibility finding to reject petitioner’s application for asylum and withholding. This case is governed by the REAL ID Act, which dictates that “an 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) (internal quotation marks omitted). Relevant factors include “the consistency between . . . written and oral statements.” 8 U.S.C. § 1158(b)(1)(B)(iii). The BIA and the IJ relied on numerous inconsistencies between petitioner’s testimony at his individual hearing and his written application materials to conclude that he was not credible. The most critical discrepancy lay in petitioner’s evidence of 2 past persecution. Petitioner filed several declarations alleging past persecution based solely on his father’s position as an officer of the National Police of Peru and the threats that petitioner’s family received as a result. Petitioner never mentioned in these statements any injury that he suffered personally. Even during his direct examination, petitioner’s attorney asked him if he had ever been directly harmed, and petitioner initially responded “no.” Yet minutes later, petitioner stated for the first time that he was attacked and physically harmed by masked men. Petitioner claimed that the attack was motivated by his father’s work and that the attack was the impetus behind his father’s sending him to live in the United States. A written statement from petitioner’s father, however, neglected to mention this attack. Other inconsistencies related to this story abound in petitioner’s testimony. Both the IJ and the BIA expressly invoked the totality of circumstances standard imposed by the REAL …

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