NOT FOR PUBLICATION FILED

MAY 26 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAUL RIVAS PEREZ, No. 19-71617

Petitioner, Agency No. A077-101-569

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 13, 2021** San Francisco, California

Before: WALLACE, NGUYEN, and COLLINS, Circuit Judges.

Petitioner Raul Rivas Perez, a native and citizen of Mexico, seeks review of

the decision of the Board of Immigration Appeals (Board or BIA) affirming the

Immigration Judge’s (IJ) denial of his applications for 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 panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). relief under the Convention Against Torture (CAT) based on an adverse credibility

determination.1 We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final

orders of removal. “We review factual findings, including adverse credibility

determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789

(9th Cir. 2014). “Factual findings ‘are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.’” Id., quoting 8

U.S.C. § 1252(b)(4)(B). “When the BIA conducts its own review of the evidence

and law . . . , our review is limited to the BIA’s decision, except to the extent that

the IJ’s opinion is expressly adopted.” Shrestha v. Holder, 590 F.3d 1034, 1039

(9th Cir. 2010) (citation and quotation marks omitted). We deny the petition.

Rivas Perez testified that he was kidnapped by six men and held captive for

approximately two months. In his written declaration, Rivas Perez stated that his

captors shot him twice in the arm on the second night of his captivity and placed a

bag over his head multiple times to suffocate him. During direct examination,

Rivas Perez testified that, after being beaten in the course of his abduction, he did

not suffer further physical harm during his captivity, including suffocation. He

1 The Board also affirmed the IJ’s denial of Rivas Perez’s application for asylum based on the determination that he is ineligible for asylum because of a prior conviction for an aggravated felony. 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i). Rivas Perez does not challenge that decision on appeal. 2 also testified that when his captors released him, they threw him, he heard “buck,

buck, buck,” and his arm was subsequently injured.

Rivas Perez had opportunities during cross and redirect examination to

explain the discrepancy between his written declaration and testimony with respect

to the alleged suffocation. He provided various explanations including that he did

not hear the question, did not understand it, and had not been given a chance to

explain. The IJ also asked why Rivas Perez stated in his written declaration that he

was shot on the second day of his captivity but testified that his arm was injured

when he was released. Rivas Perez stated that he understood the question but did

not have an answer.

In affirming the IJ’s adverse credibility determination, the Board relied on

the IJ’s finding that there were “significant” discrepancies between Rivas Perez’s

written declaration that he was shot twice in the arm and suffocated during his

captivity, and his testimony that he was not harmed during his captivity after an

initial beating. The Board concluded that “being shot and having a bag placed over

your head are not aspects of a past persecution claim that would be inadvertently

omitted or overlooked.”

Inconsistencies between a petitioner’s oral and written statements can serve

as the basis for an adverse credibility determination. Silva-Pereira v. Lynch, 827

3 F.3d 1176, 1185 (9th Cir. 2016), citing 8 U.S.C. § 1158(b)(1)(B)(iii). Under the

REAL ID Act, “[a]lthough inconsistencies no longer need to go to the heart of the

petitioner’s claim, when an inconsistency is at the heart of the claim it doubtless is

of great weight.” Shrestha, 590 F.3d at 1046–47. The discrepancies between

Rivas Perez’s written declaration and testimony are significant and go to the heart

of his claims of persecution and torture. Rivas Perez had multiple opportunities to

explain the discrepancy regarding the alleged suffocation but provided

unpersuasive answers. With respect to the alleged shooting, Rivas Perez’s

testimony changed the timing of the shooting by two months as well as its

circumstances. Accordingly, the record does not compel the conclusion that the

adverse credibility determination was erroneous.

Moreover, the Board did not abuse its discretion in declining to remand the

case based on Rivas Perez’s argument that, even if he did not credibly establish

past persecution, he faced future persecution for being a landowner in Mexico.

The Board correctly concluded that a remand was unwarranted because Rivas

Perez testified that he only cultivated his relatives’ land and there was no evidence

that Rivas Perez was a landowner in Mexico.

Lastly, substantial evidence supports the Board’s rejection of Rivas Perez’s

CAT claim on the grounds that, in addition to failing to demonstrate past torture

4 credibly, Rivas Perez failed to show a likelihood of future torture. As the Board

explained, Rivas Perez “adduced insufficient evidence” to show either that the

Mexican government would acquiesce in any future mistreatment he might

encounter or that he could not safely relocate to another part of Mexico.

The petition for review is DENIED.

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