United States v. 2020-11-04 | 19-71381 | GERARDO GARCIA MORENO V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERARDO GARCIA MORENO,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 19-71381

Agency No. A216-393-360

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted October 19, 2020
San Francisco, California

Before: THOMAS, Chief Judge, and KELLY
**
and MILLER, Circuit Judges.
Partial Concurrence and Partial Dissent by Chief Judge THOMAS

Gerardo Garcia Moreno, a native and citizen of Mexico, petitions for review
of a Board of Immigration Appeals order upholding an immigration judge’s denial
of his application for asylum. We have jurisdiction under 8 U.S.C. § 1252(a)(1).
We deny the petition.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED

NOV 4 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Garcia Moreno sought asylum and withholding of removal because of a
claimed fear of persecution on the basis of his sexual orientation. The immigration
judge found Garcia Moreno not credible because he expressly denied any fear of
return at his first border interview and instead waited until his third entry into the
United States to apply for asylum. Garcia Moreno explained that he was reluctant
to voice his fear to immigration officials because he “was very ashamed” of his
sexual orientation. The immigration judge considered Garcia Moreno’s explanation
but rejected it as insufficient to explain the inconsistency. Because Garcia Moreno
had been informed of the possibility of seeking asylum during his second entry, the
immigration judge did not find it credible that Garcia Moreno would wait to share
his fear when he had the “potential of asking to speak to a female or speaking to
anyone, even an attorney, who would be able to assist him.” The Board
“discern[ed] no clear error with the Immigration Judge’s adverse credibility
finding because it [was] supported by specific, cogent reasons,” and the Board
therefore upheld the immigration judge’s denial of Garcia Moreno’s application for
asylum.
When the Board’s decision “relies in part on the immigration judge’s
reasoning,” as it does here, “we review both decisions.” Singh v. Holder, 753 F.3d
826, 830 (9th Cir. 2014) (quoting Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th
Cir. 2012)). We review an adverse credibility finding for substantial evidence,

3
Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013), and therefore must “uphold
the agency determination unless the evidence compels a contrary conclusion,”
Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019); see also 8 U.S.C. §
1252(b)(4)(B). Applying that “extremely deferential standard of review,” Don v.
Gonzales, 476 F.3d 738, 744 (9th Cir. 2007), we conclude that the record does not
compel us to reach a conclusion contrary to that of the Board and the immigration
judge. We therefore must uphold the adverse credibility finding.
The inconsistency between Garcia Moreno’s initial border interview, in
which he expressed no fear of returning to Mexico, and his hearing testimony, in
which he voiced a significant fear of being attacked in Mexico, “go[es] to the heart
of [his] asylum claim.” See Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th
Cir. 2005). Such an inconsistency “is of great weight.” Shrestha v. Holder, 590
F.3d 1034, 1047 (9th Cir. 2010). While Garcia Moreno’s explanation that he was
too ashamed to disclose his sexual orientation to government officials is plausible,
the immigration judge was not required to accept it. See Don, 476 F.3d at 744
(explaining that an immigration judge need not “interpret the evidence in the
manner advocated by” the applicant). Instead, our precedent requires an
immigration judge to consider a proffered explanation for an inconsistency and
“provide a specific and cogent reason for rejecting it.” Rizk v. Holder, 629 F.3d
1083, 1088 (9th Cir. 2011). Here, the immigration judge did consider Garcia

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Moreno’s explanation, and she offered several reasons for rejecting it.
To be sure, some of those reasons were flawed. The immigration judge’s
assumptions that Garcia Moreno had learned from his brother how to request
asylum and that Garcia Moreno had had the opportunity to discuss asylum with his
attorney were not supported by the record. The immigration judge also engaged in
impermissible speculation in assuming that Garcia Moreno would be comfortable
discussing the sensitive topics of his sexual orientation and past sexual assault with
a border patrol officer simply because he believed the United States to be less
discriminatory than Mexico. See Mousa v. Mukasey, 530 F.3d 1025, 1027–28 (9th
Cir. 2008). The immigration judge’s reliance on Loho v. Mukasey, 531 F.3d 1016,
1017–18 (9th Cir. 2008), was also misplaced because removal does not constitute a
voluntary return to an applicant’s home country.
But the immigration judge also offered cogent reasons for rejecting Garcia
Moreno’s explanation. She pointed to the three weeks Garcia Moreno had spent in
Florence, Arizona—a period of time during which he had spoken to others about
the possibility of seeking asylum—as providing ample opportunity for Garcia
Moreno to voice his fears about returning to Mexico. The immigration judge also
found that if Garcia Moreno had “indeed suffered all of the events he testified
about in Mexico before coming to this country,” he should have been able to, at the
very least, not expressly deny any fear of returning to Mexico. While Garcia

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Moreno’s reluctance to discuss his sexual orientation might have prevented him
from disclosing that aspect of his experience to immigration officials, at least some
of the events that generated his fear, such as being followed and threatened at his
bus stop, or the violent acts of his uncles, could have been described without
discussing his sexual orientation. Thus, even if some of the immigration judge’s
reasoning was flawed, those flaws were not fatal to the credibility determination
because the immigration judge also provided a reasonable basis for finding Garcia
Moreno not credible. Zamanov v. Holder, 649 F.3d 969, 973–74 (9th Cir. 2011).
Whether or not we would have reached the same conclusion ourselves, we cannot
say that the record compels a contrary conclusion. Substantial evidence supports
the Board’s decision to uphold the immigration judge’s adverse credibility finding.
Finally, Garcia Moreno claims that the defects in his original notice to
appear require termination of his removal proceedings. Our decisions in
Karingithi v. Whitaker, 913 F.3d 1158, 1161–62 (9th Cir. 2019), and Aguilar
Fermin v. Barr, 958 F.3d 887, 893–95 (9th Cir. 2020), foreclose that claim.
PETITION DENIED.
The motion for stay of removal is DENIED.

Garcia Moreno v. Barr, No. 19-71381
THOMAS, Chief Judge, concurring in part and dissenting in part.
I agree that the petitioner’s challenge to the agency’s jurisdiction is
foreclosed by Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar
Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020). Because I do not believe substantial
evidence supports the agency’s adverse credibility finding, I would grant the
petition in part and remand the case to the agency for further proceedings.
Therefore, I respectfully concur in part and dissent in part.
FILED
NOV 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS