Alvaro Lopez-Salgado v. Eric Holder, Jr.

Filing

OPINION filed : We DENY Lopez-Salgado's petition for review, decision not for publication. Danny J. Boggs, Circuit Judge; Karen Nelson Moore, Circuit Judge and Danny C. Reeves, U.S. District Judge for the Eastern District of Kentucky, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0519n.06
No. 14-3646

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ALVARO LOPEZ-SALGADO,
Petitioner,
v.
LORETTA LYNCH, Attorney General,
Respondent.

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Jul 22, 2015
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
OF AN ORDER OF THE
BOARD OF IMMIGRATION
APPEALS
OPINION

BEFORE: BOGGS and MOORE, Circuit Judges, and REEVES, District Judge.*
KAREN NELSON MOORE, Circuit Judge.

Alvaro Lopez-Salgado, a Mexican

citizen, entered the United States without authorization in the early 2000s. He was served with a
Notice to Appear in October 2010. During a hearing before an Immigration Judge (“IJ”), LopezSalgado conceded removability, declined to designate a country for removal, and requested as
relief withholding of removal or, in the alternative, voluntary departure. The IJ granted LopezSalgado’s request for time to prepare and file an application for withholding of removal.
After reviewing Lopez-Salgado’s application, the IJ issued an oral decision finding that
Lopez-Salgado had “lied about the essence of his claim” and was not credible. The IJ denied
Lopez-Salgado withholding of removal and voluntary departure. The Board of Immigration

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The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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Appeals (“BIA”) affirmed this decision on appeal. For the reasons discussed below, we DENY
Lopez-Salgado’s petition for review.
I. BACKGROUND
Alvaro Lopez-Salgado entered the United States in the early 2000s. C.A.R. at 170 (IJ
Hr’g Tr. at 29). Since that time, he has been living in Detroit, Michigan. Id. at 126 (IJ Dec. at
10). His parents and three sisters also live in Detroit; none have legal status. Id. at 178–79 (IJ
Hr’g Tr. at 37–38). He has legal custody of his two daughters; their mother is a United States
citizen, but she and Lopez-Salgado never married and are no longer together. Id. at 181–82 (IJ
Hr’g Tr. at 40–41). Lopez-Salgado was served with a Notice to Appear on October 11, 2010.
Id. at 118 (IJ Dec. at 2). Lopez-Salgado conceded removability, declined to designate a country
for removal, and requested as relief withholding of removal or, in the alternative, voluntary
departure. Id. at 160 (IJ Hr’g Tr. at 20). The IJ granted Lopez-Salgado 90 days to prepare and
file his withholding application, and scheduled a merits hearing for September 24, 2012.
At this hearing, Lopez-Salgado testified that he had been threatened twice, in 1999 and
2001, by a man named Edgar, who was a member of a wealthy Chiapas family. Id. at 172–75 (IJ
Hr’g Tr. at 31–34). Edgar accused Lopez-Salgado of sexually harassing one of Lopez-Salgado’s
family members. Lopez-Salgado stated in his application that he was accused of harassing one
family member. During his hearing, Lopez-Salgado initially stated that he had been accused of
harassing his aunt, but later changed his story and stated that he was accused of harassing his
female cousin as well. Id. at 172, 215 (IJ Hr’g Tr. at 31, 74). Lopez-Salgado stated that he and

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Edgar had fought, but that he did not contact the police because of the influence of Edgar’s
family in Chiapas. Id. at 174–76 (IJ Hr’g Tr. at 33–35). Lopez-Salgado told his father about the
threats from Edgar, and his father advised him to come to the United States. Id. at 177–78 (IJ
Hr’g Tr. at 36–37).
Lopez-Salgado then testified that, once he was in the United States, he was threatened in
2009 by a man from Chiapas, Rigoberto, who Lopez-Salgado believed had ties to Edgar’s
family. Id. at 182–85; 202 (IJ Hr’g Tr. at 41–44, 61). Rigoberto was deported back to Mexico
prior to 2012, and Lopez-Salgado testified that he was afraid of Rigoberto if he were also to be
deported back to Mexico. Id. at 187 (IJ Hr’g Tr. at 46).
Lopez-Salgado is the father of two daughters, who were born in the United States in 2005
and 2006. He did not marry their mother, Yesenia Perez, a United States citizen, although they
lived together for about four years. Id. at 179–80 (IJ Hr’g Tr. at 38–39). Lopez-Salgado testified
that Perez was a threatening person and that she abused drugs; at the time of the hearing, LopezSalgado had sole physical custody of his daughters. Id. at 181 (IJ Hr’g Tr. at 40). He testified to
the IJ that, if removed, he would bring his daughters to Mexico with him, and that he was
worried about their wellbeing in Mexico. Id. at 189–91 (IJ Hr’g Tr. at 48–50). He requested
withholding of removal based on his membership in the particular social group of “Mexican
citizens, returning to Mexico with their U.S. citizen children, who have spent the recent years in
the United States and are considered foreigners in Mexico.”

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Id. at 228 (Exh. 4). In the

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alternative, he requested voluntary departure. In April 2013, after the hearing, Lopez-Salgado
was awarded sole legal custody. Id. at 27 (Mot. to Remand Exh. A. at 1).
The IJ denied Lopez-Salgado’s request for voluntary departure and for withholding of
removal. The IJ found that Lopez-Salgado was not credible, and that he had lied about key
portions of his claim in an attempt to qualify for withholding of removal. Id. at 120–21 (IJ Dec.
at 4–5). The IJ cited numerous inconsistences in Lopez-Salgado’s testimony, including the dates
that he left Chiapas and entered the United States; his high school graduation year; the timeline
of when his three sisters came to the United States; and the threats he received from Edgar and
Rigoberto. Id. at 128–35 (IJ Dec. at 12–19). Additionally, the IJ found “specifically that the
respondent would not take his children back to Mexico.” Id. at 133 (IJ Dec. at 17). LopezSalgado testified that his sisters and parents were familiar with the problems he had in Mexico,
but none of his family members testified at his hearing or provided sworn or unsworn statements
of support. Id. at 126–27 (IJ Dec. at 10–11). The IJ also found that, “because [Lopez-Salgado]
lied in order to try to get withholding of removal, he ipso facto cannot demonstrate his good
moral character for the last five years” and thus would be ineligible for voluntary departure. Id.
at 121 (IJ Dec. at 5).
Lopez-Salgado appealed the IJ’s decision to the BIA and asked that his case be heard by
a three-member panel. Id. at 46–47 (BIA Br. at 2–3). In his BIA brief, Lopez-Salgado requested
that the BIA vacate the IJ’s finding of “bad moral character”; reverse the IJ’s finding that he
would not take his children with him to Mexico; grant him withholding of removal or voluntary

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departure; remand the case and require the IJ to provide notice and an opportunity to provide
corroborating evidence; and find that Lopez-Salgado did suffer persecution on account of a
protected ground. Id. at 66 (BIA Br. at 22). On February 3, 2014, Lopez-Salgado filed a motion
to remand on the basis of new evidence—the fact that he had been awarded sole legal custody of
his daughters. Id. at 19 (Mot. to Remand at 2).
The BIA issued its decision on June 5, 2014, dismissing Lopez-Salgado’s appeal and
denying his motion to remand. Id. at 3–7 (BIA Dec. at 1–4). The BIA found that the IJ’s
credibility determination was based on “specific and cogent reasons” and therefore was not
clearly erroneous. Id. at 3–4 (BIA Dec. at 1–2). The BIA also agreed with the IJ that LopezSalgado had not established eligibility for voluntary departure, because “false testimony for the
purpose of obtaining any benefits under [the Immigration and Nationality Act (“INA”)]”
precluded a finding of good moral character, a prerequisite for voluntary departure. Id. at 6 (BIA
Dec. at 4). Finally, the BIA found that the issue of child custody was not central to this case, and
that the motion to remand was properly denied.
II. ANALYSIS
A. Standard of Review
“Where the BIA reviews the immigration judge’s decision and issues a separate opinion,
rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision
as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).
However, “[t]o the extent the BIA adopted the immigration judge’s reasoning,” we “also

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review[] the immigration judge’s decision.” Id. We review legal conclusions made by the BIA
and the IJ de novo, giving “substantial deference” to their “interpretation of the INA and
accompanying regulations,” and review their factual findings for substantial evidence. UrbinaMejia v. Holder, 597 F.3d 360, 364 (6th Cir. 2010). Credibility determinations are reviewed for
substantial evidence. Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir. 2012). “We cannot
reverse such [factual] findings simply because we would have decided them differently.”
Urbina-Mejia, 597 F.3d at 364. Rather, these findings are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
B. The BIA’s and IJ’s Adverse Credibility Finding Was Not Clearly Erroneous
The IJ may:
base a credibility determination on the demeanor, candor, or responsiveness of the
applicant . . . [,] the inherent plausibility of the applicant’s . . . account, the
consistency between the applicant’s . . . written and oral statements . . . [,] the
internal consistency of each such statement, the consistency of such statements
with other evidence of record . . . [,] and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii). “An adverse credibility determination is fatal to claims for asylum
and relief from removal, preventing such claims from being considered on their merits.” Slyusar
v. Holder, 740 F.3d 1068, 1072 (6th Cir. 2014).
Here, Lopez-Salgado makes three arguments related to his credibility. First, he argues
that the IJ erred by finding him not credible, since the sole alleged inconsistencies in his
testimony were related to “dates of events . . . which occurred over a decade ago.” Pet’r Br. at
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31. Second, he contends that the IJ relied on this erroneous credibility finding to find him
lacking in good moral character and thus ineligible for voluntary departure. Id. at 35–36. Third,
he argues that the BIA erred by not remanding the case to the IJ for additional fact-finding. Id. at
38–42. These arguments fail.
Lopez-Salgado first contends that many of the inconsistencies between his application
and his testimony are the result of omissions in his application, rather than evidence of deliberate
falsehoods. Additionally, he cites an opinion from this court to support the proposition that “the
limited space provided by the initial application makes the mere omission of some of these
incidents not only insignificant, but expected.” Id. at 34 (citing Ileana v. INS, 106 F. App’x 349,
357 (6th Cir. 2004)). These claims are off the mark. The IJ’s and BIA’s findings were not based
on mere omissions or insignificant discrepancies, but misstatements that went to many aspects of
Lopez-Salgado’s case.

The BIA took note of the fact that Lopez-Salgado had provided

inconsistent information on when he had left Mexico and when the rest of his family had
immigrated to the United States. C.A.R. at 4 (BIA Dec. at 2). The IJ also recounted how LopezSalgado could “not keep his story straight” regarding why he left Mexico. Id. at 130–31 (IJ Dec.
at 14–15). In fact, Lopez-Salgado appeared to make up a person’s name (Edgar) out of whole
cloth—he did not name Edgar in his application for withholding of removal. These are not
trivial inconsistencies. They indicate an inability to recount a consistent narrative about why
Lopez-Salgado came to the United States, when he came, who he came with, and why he should

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not be removed. These inconsistencies provide substantial evidence to support the IJ’s and
BIA’s adverse credibility finding.
Next, Lopez-Salgado argues that the IJ relied on an erroneous adverse credibility finding
in order to deny him voluntary departure. We have already made clear that the IJ’s adverse
credibility determination—i.e., that Lopez-Salgado lied about essential aspects of his claim—
was supported by substantial evidence. Only individuals found to have good moral character
may be granted voluntary departure. “One of the seven specific categories of aliens precluded
from establishing good moral character is an alien ‘who has given false testimony for the
purpose of obtaining any benefits under this Act.’” In re Ortega-Cabrera, 23 I. & N. Dec. 793,
796 (BIA 2005) (quoting 8 U.S.C. § 1101(f)(6)). “We find that Congress intended this category
to include an alien who testifies falsely with the intent to obtain an immigration benefit at the
proceeding in which good moral character is a requirement for relief.” Id. Lopez-Salgado fits
within this group: the IJ found that he had lied in an attempt to receive withholding of removal,
a benefit under the INA.
Lopez-Salgado’s third argument, that the BIA erred in denying his motion for remand on
the basis of new evidence that he was granted sole custody of his children, is likewise
unpersuasive. The BIA noted that the IJ’s adverse credibility determination was largely not
based on evidence related to Lopez-Salgado’s custody arrangement, and thus the new evidence
did not challenge the IJ’s credibility determination. C.A.R. at 6 (BIA Dec. at 4). Since the
credibility determination was the basis for the IJ’s denials of withholding of removal and of

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voluntary departure, “the respondent [did] not proffer[] sufficient evidence or argument to
indicate that, if considered by the Immigration Judge, there would be a reasonable likelihood that
his applications for relief would succeed on the merits.” Id. The BIA properly denied the
motion for remand.
C. The IJ Was Not Required to Provide Lopez-Salgado with Notice and an Opportunity
to Present Corroborating Evidence
The IJ’s adverse credibility finding rested in part on the fact that Lopez-Salgado did not
provide corroborating evidence from any members of his immediate family, all of whom live in
Detroit and would have had “some knowledge of what happened to [Lopez-Salgado], or what he
claims happened to him in Mexico.” Id. at 126 (IJ Dec. at 10). Lopez-Salgado argues that he
should have received notice and opportunity either to produce such corroborating evidence or to
explain why such evidence was unavailable.
In our recent decision in Gaye v. Lynch, we stated that “[§ 1158(b)(1)(B)(ii)] does not
suggest that the alien is entitled to notice from the IJ as to what evidence the alien must present.
. . . We hold that federal law does not entitle illegal aliens to notice from the Immigration Court
as to what sort of evidence the alien must produce to carry his burden.” __ F.3d ___, ___, 2015
WL 3555937, at *7 (6th Cir. 2015). That holding governs this case, notwithstanding LopezSalgado’s contentions to the contrary. Lopez-Salgado essentially argues that he was otherwise
credible, even absent reasonably available corroborating evidence. That is not a fair portrayal of
what actually occurred. Both the IJ and the BIA found Lopez-Salgado to lack credibility in

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many respects. There is, as we have noted, substantial evidence supporting this finding. There is
no meaningful distinction from Gaye.
D. We Do Not Have Jurisdiction to Review Lopez-Salgado’s Claim Related to His
Membership in a Particular Social Group
In order “[t]o prevail on a petition for withholding of removal under the INA, an alien
must show that there is a ‘clear probability,’ that is, that ‘it is more likely than not,’ that []he
would be subject to persecution on the basis” of his “race, religion, nationality, membership in a
particular social group, or political opinion.” Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th
Cir. 2006) (citations omitted). Lopez-Salgado claimed membership in the particular social group
of “Mexican citizens, returning to Mexico with their U.S. citizen children, who have spent the
recent years in the United States and are considered foreigners in Mexico.” C.A.R. at 228 (Exh.
4). But Lopez-Salgado, by his own admission, “did not push his particular social group claim to
the Board” on appeal. Pet’r Br. at 50. That means that we do not have jurisdiction to reach this
question now.
Under the INA, we “may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
The BIA held here that “the respondent did not meaningfully challenge the portion of the
Immigration Judge’s decision denying his application for withholding of removal based on
claimed membership in a particular social group. We thus deem this issue waived on appeal.”
C.A.R. at 5 n.4 (BIA Dec. at 3). Lopez-Salgado did not, in other words, exhaust his claim
because he did not present it before the BIA.

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In his opening brief, Lopez-Salgado nonetheless points to two BIA decisions that he
alleges fundamentally changed the law governing particular-social-group claims. He then, in his
reply brief, alleges that the government waived its right to challenge this particular argument,
because it did not discuss either of these two BIA decisions in depth in its brief. This argument
makes little sense.

Lopez-Salgado, not the government, waived the instant claim by not

presenting it before the BIA. That is the end of the matter in terms of what we may or may not
review.
E. The BIA Did Not Err By Not Referring Lopez-Salgado’s Case to a Three-Member
Panel
Finally, Lopez-Salgado argues that the BIA erred in failing to refer his case to a threemember panel. As Lopez-Salgado notes, we have “not yet formally issued a precedent decision
addressing . . . [whether we have] jurisdiction over this issue.” Pet’r Br. at 27; see Nabhani v.
Holder, 382 F. App’x 487, 491 (6th Cir. 2010). Our sister circuits are split on this question. See
id. We see no need to wade into this divide today. Lopez-Salgado’s claim would fail even if we
had jurisdiction over it. See, e.g., Denko v. I.N.S., 351 F.3d 717, 732 (6th Cir. 2003) (assuming
without deciding that we have jurisdiction to review a decision by the BIA to designate a case for
summary affirmance without opinion). In his brief, Lopez-Salgado correctly identifies 8 C.F.R.
§ 1003.1(e)(6) as the regulation providing circumstances in which a case may be assigned to a
three-judge panel. He then points to 8 C.F.R. § 1003.1(e)(6)(v)—the provision providing for
panel review of “a clearly erroneous factual determination by an immigration judge”—in order
to argue that “[a] panel was necessary to review the clearly erroneous factual claims” made in

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this case. Pet’r Br. at 26. We have already held that the IJ’s factual findings were not clearly
erroneous, as they were supported by substantial evidence. See Nabhani, 382 F. App’x at 492.
Lopez-Salgado’s challenge is without merit.
III. CONCLUSION
For the foregoing reasons, we DENY Lopez-Salgado’s petition for review.

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