Noel Agustin Carballo v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOEL AGUSTIN CARBALLO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72177
Agency No. A205-491-065
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 15, 2023**
Seattle, Washington
Before: W. FLETCHER, R. NELSON, and COLLINS, Circuit Judges.
Noel Agustin Carballo (“Carballo”), a native and citizen of Nicaragua,
petitions for review of a decision of the Board of Immigration Appeals (“BIA”).
The BIA affirmed the immigration judge’s (“IJ”) finding that Carballo’s testimony
FILED
OCT 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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was not credible. In the absence of credible testimony, the BIA affirmed the denial
of Carballo’s withholding of removal claim. The BIA also affirmed the IJ’s
alternative holding that Carballo did not establish a nexus to a protected ground.
Finally, the BIA affirmed the IJ’s denial of Carballo’s claim for relief under the
Convention Against Torture (“CAT”) because his testimony was not credible and
he did not show that it is more likely than not that he would be tortured if returned
to Nicaragua.
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence factual findings underlying the IJ’s adverse credibility determination.
Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). We apply the same standard
to a determination that a petitioner is not eligible for withholding of removal or
CAT protection. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).
“To prevail under the substantial evidence standard, the petitioner must show that
the evidence not only supports, but compels the conclusion that these findings and
decisions are erroneous.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th
Cir. 2022) (internal quotation marks and citation omitted). We deny the petition.
Substantial evidence supports the IJ’s adverse credibility determination.
“[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,
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1040 (9th Cir. 2010). Inconsistencies that form the basis for the adverse credibility
determination can be relatively minor and need not go to the heart of petitioner’s
claim for relief. Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc).
The IJ cited at least three specific inconsistencies between Carballo’s
application and his oral testimony before the IJ. First, Carballo testified that in
2005, gang members assaulted him during a robbery and attacked him with a bottle
after he refused the gang’s recruitment attempts. But his written application did
not include any information about these incidents. Second, Carballo testified that
his brother was nearly killed by a gang when gang members sought information
about Carballo’s whereabouts and that this influenced his decision to leave
Nicaragua. His written application did not include this information and instead
stated that he left Nicaragua because of a dispute with his neighbor. Third,
Carballo testified that his neighbor was never dangerous and that they resolved the
dispute, despite the fact that his written application cited the dispute as his reason
for leaving Nicaragua. When asked by the IJ to explain this discrepancy, Carballo
became evasive and did not offer an explanation.
Because Carballo lacked credible testimony to support his withholding of
removal claim, we affirm the BIA’s denial of his withholding of removal claim.
Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1094 (9th Cir. 2021) (per curiam)
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(“Substantial evidence also supports the BIA’s conclusion that without credible
testimony, Rodriguez-Ramirez failed to establish eligibility for asylum or
withholding of removal.”). We need not reach the IJ’s alternative holding that
Carballo’s claim lacked a nexus to a protected ground.
We also affirm the BIA’s denial of Carballo’s CAT claim based on the
adverse credibility finding. Carballo did not establish, as required under 8 C.F.R. §
208.16(c)(2), that it was more likely than not that he would be tortured if returned
to Nicaragua. Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015), abrogated on
other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (“Singh’s claim
under the CAT is based on the same statements he made regarding his claims for
asylum and withholding of removal. Thus, it was proper for the IJ and the BIA to
rely on the same adverse credibility determination in denying all of his claims.”).
PETITION DENIED.
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