Luis Manuel Marquez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS MANUEL MARQUEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72493
Agency No. A075-595-930
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2022**
Before: WALLACE, TALLMAN, and BYBEE, Circuit Judges.
Luis Manuel Marquez, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his applications for
withholding of removal and protection under the Convention Against Torture
* 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).
FILED
DEC 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review factual findings
for substantial evidence, applying the standards governing adverse credibility
determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-
40 (9th Cir. 2010). We review the denial of a motion to remand for abuse of
discretion. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We
review de novo claims of due process violations in immigration proceedings.
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the petition for
review.
Substantial evidence supports the adverse credibility determination based on
an inconsistency regarding how Marquez discovered that the police were assisting
the drug cartel, and implausibilities regarding Marquez’s uncle’s cartel
membership in 1980 and the cartel’s ability to recognize Marquez’s relationship to
his uncle from his name alone. See id. at 1048 (adverse credibility determination
reasonable under “the totality of circumstances”); Lalayan v. Garland, 4 F.4th 822,
838 (9th Cir. 2021) (implausibility findings were supported by record evidence and
were based on reasonable assumptions). Marquez’s explanations do not compel a
contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Thus,
in the absence of credible testimony in this case, Marquez’s asylum and
withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156
(9th Cir. 2003).

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Substantial evidence also supports the denial of Marquez’s CAT claim
because it was based on the same evidence found not credible, and Marquez does
not point to any other record evidence that compels the conclusion that it is more
likely than not he would be tortured by or with the consent or acquiescence of the
government if returned to Mexico. See Shrestha, 590 F.3d at 1048-49.
The BIA did not abuse its discretion in denying Marquez’s motion to
remand, where he failed to demonstrate that the evidence was previously
unavailable and where he failed to demonstrate prima facie eligibility for
discretionary relief. See 8 C.F.R. § 1003.2(c)(1); see also Shin v. Mukasey, 547
F.3d 1019, 1025 (9th Cir. 2008) (applicants seeking remand “bear a ‘heavy burden’
of proving that, if proceedings were reopened, the new evidence would likely
change the result in the case.”); Movsisian 395 F.3d at 1097-98 (motion to reopen
filed while appeal is pending before the BIA is treated as a motion to remand).
We reject Marquez’s contentions that the IJ violated his due process rights.
See Lata, 204 F.3d at 1246.
We do not consider Marquez’s contentions regarding his former detention
because they are not properly before this court. See Leonardo v. Crawford, 646
F.3d 1157, 1160 (9th Cir. 2011) (eligible detainees may seek a bond hearing from
an IJ, appeal to the BIA, and then seek review of the determination by filing a

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habeas corpus petition in district court).
PETITION FOR REVIEW DENIED.

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