FILED

NOT FOR PUBLICATION

SEP 13 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIVALSON GEFFRARD, No. 18-70445

Petitioner, Agency No. A209-875-470

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted April 10, 2019 Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District Judge.

Sivalson Geffrard (Petitioner), a native and citizen of Haiti, petitions for

review of the order of the Board of Immigration Appeals (Board) summarily

affirming the denial of his application for asylum, withholding of removal, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. protection under the Convention Against Torture (CAT). We review the decision

of the Immigration Judge (IJ) when the Board summarily affirms that decision.

See Ming Dai v. Sessions, 884 F.3d 858, 866 (9th Cir. 2018).

We review factual findings, including adverse credibility determinations, for

substantial evidence, and we may reverse only when “the evidence not only

supports a contrary conclusion, but compels it.” Yali Wang v. Sessions, 861 F.3d

1003, 1007 (9th Cir. 2017) (citation, alteration, and internal quotation marks

omitted).

Given the “healthy measure of deference to agency credibility

determinations” that the REAL ID Act requires, id. (citation and internal quotation

marks omitted), we conclude that substantial evidence supports the adverse

credibility determination. See Shrestha v. Holder, 590 F.3d 1034, 1046-47 (9th

Cir. 2010) (upholding adverse credibility finding where inconsistency was relevant

to “the crux of [petitioner’s] application for relief”).

The record establishes that Petitioner was inconsistent about the timing of

the attack that led to his departure, and he failed to explain that inconsistency. See

Don v. Gonzales, 476 F.3d 738, 742 (9th Cir. 2007) (explaining that

inconsistencies regarding timing of events leading up to petitioner’s departure are

not trivial). In his credible fear interview and asylum application, Petitioner stated

2 that he was attacked by a mob “the same day” as the day his partner was killed.

Yet, Petitioner testified at his merits hearing that the mob “attempted to kill [him],”

when it returned “two days later.” Petitioner also testified inconsistently that the

mob searched for him on December 9, 2014, and returned for him on December,

12, 2014, three days later.

Petitioner also conceded that he told a Customs and Border Patrol officer

that he did not fear persecution if returned to Haiti. His statement corroborates the

adverse credibility determination because Petitioner made the statement while

unaware of the evidence needed to support an asylum claim.

Because substantial evidence supports the adverse credibility determination,

Petitioner is ineligible for asylum and withholding of removal.1 See Manes v.

Sessions, 875 F.3d 1261, 1265 (9th Cir. 2017) (upholding denial of asylum based

on adverse credibility determination); see also Guo v. Sessions, 897 F.3d 1208,

1213 n.3 (9th Cir. 2018) (“[F]ailure to satisfy the lower standard of proof required

to establish eligibility for asylum necessarily results in a failure to demonstrate

eligibility for withholding of deportation.”) (citation and alteration omitted).

1 Because we hold that Petitioner is ineligible for asylum and withholding of removal, we need not decide whether Petitioner was firmly resettled. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). 3 The IJ properly denied Petitioner’s CAT claim because it is predicated on

the same evidence that the IJ did not find credible, and the United States

Department of State country report (Country Report) alone does not compel the

conclusion that Petitioner would more likely than not be tortured if returned to

Haiti. See Angov v. Lynch, 788 F.3d 893, 910 (9th Cir. 2015) (affirming denial of

CAT relief where petitioner was not credible and did not present other evidence

showing it was more likely than not that he would be tortured upon return). The

Country Report mentions hostile social attitudes toward “outward LGBTI [lesbian,

gay, bisexual, transgender, and intersex] identification and expression.”

The Country Report also notes that the Haitian National Police were not

consistently willing to document or investigate LGBTI persons’ claims of abuse,

and that “the police themselves were afraid of repercussions from their own

community if they were seen to be supporting the claims of LGBTI victims.”

However, the Country Report further stated that the Haitian government

“specifically trained new officers on crimes commonly committed against the

LGBTI community,” and that there were no reports of police officers “actively

perpetrating or condoning violence against members of the [LGBTI] community.”

Petitioner also stated that he had not been harmed by Haitian government officials

or police officers. Cf. Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)

4 (determining that a likelihood of torture existed where the government was

involved in the torture of gay men, homosexuality was criminalized, and the

government acquiesced in the torture of gay men by others).

PETITION DENIED.

5

FILED

SEP 13 2019

MOLLY C. DWYER, CLERK

Silvalson Geffrard v. William Barr, No. 18-70445 U.S. COURT OF APPEALS

MURGUIA, Circuit Judge, concurring in part and dissenting in part:

I agree with my colleagues that Petitioner is ineligible for asylum—not

because the adverse credibility determination is supported by substantial evidence

but because the firm resettlement bar applies. However, as to withholding of

removal and relief under CAT, I would reverse and remand for further proceedings

because the IJ’s adverse credibility finding is not supported by substantial

evidence.

The IJ’s adverse credibility determination was based on three apparent

inconsistencies: 1) Petitioner’s testimony regarding the date of the attack,

2) whether Petitioner and his boyfriend “came out” as gay men, and 3) Petitioner’s

initial statement at the border that he had no fear of returning to Haiti. In my

view, the first is trivial, the second is wholly unfounded, and the third was

adequately explained. Indeed, even the majority disregards the second

“inconsistency,” and the IJ concedes that if the “only inconsistency in this case

would have been the [third inconsistency], the Court would not make an adverse

credibility finding.” This leaves only the first “inconsistency” regarding the date

of the attack.

The IJ and the majority find Petitioner not credible because, in his oral testimony, Petitioner said that the mob attacked him on December 12, but in his

written testimony, he said the mob attacked him on December 9. The IJ points out

that, in one story, the angry mob went to Petitioner’s mother’s home on December

9 but did not find Petitioner, and therefore returned on December 12 to attack him.

In the second version of his story, Petitioner returned to his mother’s home on

December 9 and was attacked that same day. The IJ and the majority find this

minor date discrepancy detrimental to Petitioner’s application. I find it trivial.

Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011) (reversing the IJ’s adverse

credibility determination because it was based on trivial inconsistencies); see also

Zhi v. Holder, 751 F.3d 1088, 1091-92 (9th Cir. 2014) (“[W]e conclude that

substantial evidence does not support the BIA’s determination that the conflict in

dates resulted in a legally significant discrepancy in the evidence.”); Singh v.

Gonzales, 403 F.3d 1081, 1090-91 (9th Cir. 2005) (in a pre-REAL ID Act case, the

Court held that a minor discrepancy in dates could not support an adverse

credibility determination).

Other than mixing up the dates, Petitioner’s rendition of the horrifying

events leading to his flight from Haiti is consistent: Petitioner was visiting with a

friend when an angry mob murdered his boyfriend by stoning him and hitting him

with batons. Whether on December 9 or December 12, the mob found Petitioner at his mother’s home and attempted to cut him with a knife; Petitioner survived

because he fled to his brother’s house. We know that “victims of abuse ‘often

confuse the details of particular incidents, including the time or dates of particular

assaults and which specific actions occurred on which specific occasion.’” Ren,

648 F.3d at 1085-86 (citation omitted). And no one can conclude that Petitioner

was attempting to enhance his claims by placing the attack on December 9 versus

December 12, or vice versa. Id. at 1086 (“As we have repeatedly held, ‘minor

discrepancies in dates that . . . cannot be viewed as attempts by the applicant to

enhance his claims of persecution have no bearing on credibility.’” (citation

omitted)). Considering the totality of the circumstances—as the IJ was bound to

do and as we are bound to do on appeal—I cannot conclude that this trivial

discrepancy provides substantial evidence to make an adverse credibility finding.

Therefore, I respectfully dissent in part.