Fednel Jacinthe v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEDNEL JACINTHE,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-71817
Agency No. A213-087-082
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 23, 2019**
Seattle, Washington
Before: IKUTA and BENNETT, Circuit Judges, and RAKOFF,*** District Judge.
Fednel Jacinthe petitions for review of an order of the Board of Immigration
Appeals (BIA) affirming the decision of an Immigration Judge (IJ) denying his
FILED
OCT 28 2019
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).
*** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.

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claims for asylum and withholding of removal.1 We have jurisdiction under 8
U.S.C. § 1252.
The BIA’s determination that Jacinthe did not testify credibly is supported
by substantial evidence. See Kin v. Holder, 595 F.3d 1050, 1054–55 (9th Cir.
2010). Jacinthe gave inconsistent testimony regarding whether he went to the
hospital after being struck in the head with a piece of iron and whether, after being
struck in the head, he “pretended to pass out,” “half passed out,” or actually passed
out and was unconscious for 10 hours. Jacinthe was unable to resolve these
inconsistencies when given an opportunity to explain. Such inconsistencies “on
issues material to the alien’s claim of persecution constitute substantial evidence
supporting an adverse credibility determination.” Rizk v. Holder, 629 F.3d 1083,
1088 (9th Cir. 2011). Jacinthe also made a material omission in initially failing to
mention the Lavalas group members burning down the bakery he managed, which
1 Jacinthe does not challenge the IJ’s or BIA’s denial of protection under the
Convention Against Torture. Accordingly, the issue has been waived.
2

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also supports an adverse credibility finding. See Zamanov v. Holder, 649 F.3d
969, 973–74 (9th Cir. 2011).2
Jacinthe does not contest that without his credible testimony, the remaining
evidence is insufficient to establish that he has suffered past persecution or that he
has a well-founded fear of future persecution. Therefore, his claim for withholding
of removal was properly denied.
Substantial evidence supports the BIA’s findings that Jacinthe was firmly
resettled pursuant to 8 C.F.R. § 1208.15 and failed to show that an exception
applied to him. See Nahrvani v. Gonzales, 399 F.3d 1148, 1151–52 (9th Cir.
2005). The government submitted a document showing that Jacinthe was offered
“permanent residence” in Brazil. And Jacinthe testified that he had “permanent
residency in Brazil” and lived there for three years. The one news article that
Jacinthe offers in support of his argument that he was not offered permanent
residency in Brazil does not compel a conclusion contrary to the one reached by
the BIA. See id. at 1151. Substantial evidence also supports that Jacinthe did not
remain in Brazil only as long as was necessary to arrange onward travel. His
2 We lack jurisdiction to address Jacinthe’s arguments that inconsistencies
and omissions in his testimony were the result of an ineffective interpreter at his
hearing or unfair questioning, because he has failed to exhaust them by raising
them before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir.
2004).
3

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testimony revealed that he only decided to leave Brazil after a work disagreement
with his boss, which occurred after he had been living in Brazil for nearly two
years. Therefore, the BIA properly denied his asylum claim.
PETITION DENIED.
4

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