Catalina Lopez Merino v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATALINA LOPEZ MERINO; DANTE
ARMANDO SANCHEZ LOPEZ; IVAN
ISAAC RAMIREZ LOPEZ; JOSE JUAN
RAMIREZ LOPEZ,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1252
Agency Nos.
A208-924-632
A208-924-634
A213-087-529
A208-924-633
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2023**
Portland, Oregon
Before: TALLMAN, RAWLINSON, and SUNG, Circuit Judges.
Petitioners Catalina Lopez Merino, Dante Armando Sanchez Lopez, Ivan
Isaac Ramirez Lopez, and Jose Juan Ramirez Lopez (collectively, Lopez
Merino), natives and citizens of Mexico, petition for review of a decision of the
* 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
JUN 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2 22-1252
Board of Immigration Appeals (BIA) dismissing their appeal of the denial by an
Immigration Judge (IJ) of asylum, withholding of removal, and relief under the
Convention Against Torture (CAT).
“We review the agency’s factual findings, including credibility
determinations, for substantial evidence.” Dong v. Garland, 50 F.4th 1291,
1296 (9th Cir. 2022) (citation omitted). “Under this standard, findings of fact
are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Id. (citation and internal quotation marks omitted).
“[W]e review the BIA’s denial of CAT relief for substantial evidence.”
Gutierrez-Alm v. Garland, 62 F.4th 1186, 1201 (9th Cir. 2023) (citation
omitted).
1. Substantial evidence supports the agency’s adverse credibility
determination based on significant inconsistencies identified by the BIA among
Lopez Merino’s testimony, asylum declaration, border interview, and other
supporting documents. See Dong, 50 F.4th at 1297 (“Inconsistencies in an
applicant’s testimony may support an adverse credibility determination. . . .”)
(citation omitted).1
1 The BIA properly reviewed the adverse credibility determination for clear
error under the REAL ID Act’s totality of the circumstances standard. See
Ridore v. Holder, 696 F.3d 907, 916 (9th Cir. 2012) (observing that the BIA
reviews an IJ’s adverse credibility determination for clear error); see also
Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir. 2021) (discussing the totality
of the circumstances standard).

-- 2 of 5 --

3 22-1252
The BIA properly relied on Lopez Merino’s inconsistent testimony
regarding the police assistance she received after she was sexually assaulted by
her brother. Lopez Merino conveyed that when she reported her brother to the
police, “no one listen[ed] to a woman who ha[d] accusations, especially if [they
were] about somebody [that was] family.” However, Lopez Merino also
acknowledged that the police referred her to an office for “victims of sexual
abuse,” had her speak to a psychologist, recorded her statement, and sketched a
picture of her brother.
Lopez Merino additionally testified that she was abused by her ex-
husband, but provided significantly inconsistent statements concerning the dates
of their marriage and divorce. Initially, Lopez Merino testified that she and her
ex-husband “got married in 2009” and “immediately got divorced and
separated” the same year. Lopez Merino subsequently stated that the marriage
“documents were signed in 2010,” but that her divorce was finalized in 2017.
And she separately told a DHS officer that her marriage had been dissolved in
2015. Lopez Merino attempts to explain these disparities by pointing to cultural
differences regarding marriage and divorce between the United States and
Mexico. But while cultural differences explain some of the inconsistencies in
Lopez Merino’s testimony—for example, that she considered herself divorced
once she left her ex-husband—they do not resolve others, such as whether her
divorce was legally finalized in 2015 or 2017.
Finally, Lopez Merino provided conflicting accounts of her residency in

-- 3 of 5 --

4 22-1252
Mexico. Lopez Merino conveyed that she lived with her father from 2010 to
2016, but subsequently testified that, between 2010 and 2016, she lived with her
children in Oaxaca, and then lived alone in Mexico City.
Lopez Merino argues that these disparities either have factual
explanations or are due to her impaired memory resulting from trauma. But, so
long as it does so reasonably, the agency is not required to accept even plausible
explanations for inconsistencies. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th
Cir. 2011), overruled in part on other grounds by Alam v. Garland, 11 F.4th
1133, 1135 (9th Cir. 2021) (en banc). And contrary to Lopez Merino’s
assertions, the BIA fully considered a psychological assessment indicating that
Lopez Merino had difficulty with her memory due to trauma. The BIA
explained that the assessment did not “resolve the number and magnitude of
[the] inconsistencies” in Lopez Merino’s testimony, or establish that Lopez
Merino’s mental conditions “affected her ability to present her case on
fundamental issues.” Under the totality of circumstances, the significant
discrepancies in Lopez Merino’s testimony provide substantial evidence in
support of the agency’s adverse credibility determination. See Dong, 50 F.4th
at 1297.2
2 The record does not reflect that Lopez Merino exhibited “indicia of
incompetency,” such as “the inability to understand and respond to questions,
the inability to stay on topic, or a high level of distraction, [or] evidence of
mental illness” warranting the implementation by the IJ of procedural
protections. Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017) (citation
and internal quotation marks omitted).

-- 4 of 5 --

5 22-1252
2. The BIA applied the correct legal standard, and substantial
evidence supports the agency’s determination that Lopez Merino did not
demonstrate that it was more likely than not that she would be tortured if
removed to Mexico. See Gutierrez-Alm, 62 F.4th at 1197 (stating that “a
petitioner must demonstrate that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal”) (citations and
internal quotation marks omitted). Although “the country conditions evidence
acknowledged crime and police corruption in Mexico generally . . . the evidence
fail[ed] to show that [Lopez Merino] faces a particularized, ongoing risk of
future torture.” Tzompantzi-Salazar v. Garland, 32 F.4th 696, 706-07 (9th Cir.
2022), as amended.
3. Lopez Merino requests a remand for the IJ to independently
consider the asylum applications filed by her children. However, the BIA
properly concluded that Lopez Merino pursued derivative claims on behalf of
her children, and her children’s applications did “not include any additional
facts beyond [Lopez Merino’s] claim.” See Ma v. Ashcroft, 361 F.3d 553, 560-
61 (9th Cir. 2004) (distinguishing between independent and derivative claims);
see also 8 U.S.C. § 1158(b)(3).
PETITION DENIED.

-- 5 of 5 --