silva-pereira v. lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

ROBERTO CARLOS SILVA-PEREIRA,Petitioner,

v.

LORETTA E. LYNCH, AttorneyGeneral,

Respondent.

No. 14-70276

Agency No.A095-743-748

OPINION

On Petition for Review of an Order of theBoard of Immigration Appeals

Argued and Submitted January 4, 2016San Francisco, California

Filed July 7, 2016

Before: J. Clifford Wallace and Diarmuid F. O’Scannlain,Circuit Judges and Marilyn L. Huff,* District Judge.

Opinion by Judge O’Scannlain

* The Honorable Marilyn L. Huff, District Judge for the U.S. DistrictCourt for the Southern District of California, sitting by designation.

SILVA-PEREIRA V. LYNCH2

SUMMARY**

Immigration

The panel denied a petition for review brought by RobertoCarlos Silva-Pereira, a former Salvadoran professional soccerplayer and deputy to a Salvadoran congressman, holding thathe was statutorily barred from asylum and withholding ofremoval relief under the serious nonpolitical crime bar, anddid not qualify for protection under the Convention AgainstTorture.

The panel held that the evidence did not compel theconclusion that Silva was credible. The panel further heldthat substantial evidence supported the Board of ImmigrationAppeals’ determination that Silva was ineligible for asylumand withholding of removal under the serious nonpoliticalcrime bar, because there was probable cause to believe thatSilva was complicit in the murders in Guatemala of threeSalvadoran representatives to the Central AmericanParliament.

The panel held that it need not decide whether the law ofthe case doctrine applies to administrative proceedings in theimmigration context, because even assuming it does, neitherthe immigration judge nor the Board explicitly decided theserious nonpolitical crime issue before the final round ofdecisions.

** This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.

SILVA-PEREIRA V. LYNCH 3

The panel affirmed the Board’s denial of protection underthe Convention Against Torture, because Silva never assertedany fear of torture in Nicaragua, the country he designated forremoval, and to which the IJ ultimately ordered removal.

The panel declined to consider the Board’s determinationthat Silva failed to demonstrate a likelihood of torture in ElSalvador, the alternate country of removal, because such achallenge does not relate to “the proposed country ofremoval,” as required by 8 C.F.R. § 1208.16(c)(2).

COUNSEL

Guatam Jagannath (argued), and Emily Abraham, SocialJustice Collaborative, Oakland, California, for Petitioner.

Timothy G. Hayes (argued), Trial Attorney; Cindy S. Ferrier,Assistant Director; Benjamin C. Mizer, Acting AssistantAttorney General, Civil Division; Office of ImmigrationLitigation, United States Department of Justice, Washington,D.C., for Respondent.


OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether substantial evidence supports thedetermination of the Board of Immigration Appeals that thispetitioner is ineligible for asylum and withholding of removalto Nicaragua and whether he qualifies for deferral of removalunder the Convention Against Torture.

I

A

Roberto Carlos Silva-Pereira is a Salvadoran citizen andnational, and was a professional soccer player in El Salvadoruntil around 2000. Following his retirement, he entered theconstruction business in El Salvador with his wife. Hiscompanies bid for government construction contracts, whichregularly yielded 30–40% profit. Earnings from thesecontracts placed Silva among El Salvador’s wealthiestindividuals. Silva denied he ever bribed government officialsto secure such contracts.

Silva reports that he became involved in Salvadoranpolitics in 2000, when he became a member of the FrenteFarabundo Martí para la Liberación Nacional Party(“FMLN”). In 2006, however, Silva changed parties when hewas elected a deputy to Congressman Gonzales Lovo, amember of the Partido de Conciliación Nacional (“PCN”). Silva testified that although some members of the FMLNresented his switch to the PCN, he thought both parties had ashared ideology opposing the then-ruling Alianza


Republicana Nacionalista party (“ARENA”), which Silvabelieved to be corrupt.

Roughly six months after Silva assumed office asCongressman Lovo’s deputy, the Salvadoran legislature heldhearings about allegations that Silva engaged in moneylaundering and bribery of government officials through hisconstruction business. At those hearings, the SalvadoranAttorney General presented evidence that Silva acquiredapproximately $1.6 million in illicit assets between 2004 and2006 from contracts acquired through bribery. According toSilva, the charges were brought because the Attorney Generalbelieved him to be a “stumbling block” to the ARENA party.

Ultimately, 82 out of El Salvador’s 84 legislators voted tosuspend Silva’s legislative immunity. The voting majorityincluded all three parties and 9 out of 10 members of Silva’sown PCN party, with the exception of Congressman Lovowho chose to abstain. The legislator who acted as aprosecutor in Silva’s case also abstained. Silva claims thatthe legislature’s landslide vote was orchestrated by ARENAand motivated by a desire to secure aid from the United Statesby demonstrating an active fight against corruption.

After the legislature revoked Silva’s immunity, aSalvadoran court held hearings in January 2007 to determinewhether the evidence against Silva supported the issuance ofa warrant for his arrest. Silva was represented by counsel atthese hearings, but submitted a note through his attorneystelling the court that he was too sick to attend. The courtissued a warrant for Silva’s arrest on January 25, 2007. Silvaleft El Salvador sometime during this period.


Around the time Silva’s legislative immunity wassuspended, Silva’s wife and mother-in-law were also arrestedon corruption charges connected to their role in Silva’sconstruction businesses. His mother-in-law was acquitted. After being convicted of some charges and acquitted ofothers, Silva’s wife was sentenced to seven years in prison. Additionally, authorities successfully prosecuted a formermayor, Mario Osorto, for forging documents that facilitatedSilva’s government contracts. Osorto was an ARENA partymember and also a member of the Central AmericanParliament (“PARLACEN”). As with Silva, the Salvadoranlegislature voted to suspend Osorto’s legislative immunity inDecember 2006. Osorto was sentenced to four years inprison.

B

Subsequently, in the United States, Silva wasapprehended by agents of the Federal Bureau of Investigation(“FBI”) near his girlfriend’s home in California in October2007. When investigators knocked on the door, Silva fled onfoot, jumping fences and hiding in bushes before beingarrested. Following his arrest, Silva conceded removabilitybut sought asylum, withholding of removal, and protectionunder the Convention Against Torture. He declined todesignate a country of removal, so the immigration judge(“IJ”) designated El Salvador, Silva’s home country, as thecountry of removal.

1

At his initial immigration hearings before the IJ inFlorence, Arizona, Silva described several incidents ofviolence allegedly perpetrated against him by Salvadoran


officials. First, he asserted that the leader of ARENA’slegislators threatened him at gunpoint for accusing ARENAof corruption. Second, Silva alleged he suffered violence atthe hands of Salvadoran police after visiting his wife in prisonin El Salvador. According to Silva, he visited his wife inOctober 2006 and took pictures with his cell phone of injuriesshe allegedly sustained while incarcerated. Silva testified thatupon leaving the prison, police stopped the car in which hewas riding with his ten-year-old son and his driver. According to Silva, the police hit him with a rifle, forciblytook the phone, and threatened his son at gunpoint.

Third, Silva testified that roughly one week after thisassault, police entered his house without a warrant and againassaulted him and frightened his children. Silva claimed hewas unable to attend the arrest warrant hearings in ElSalvador as a result of injuries from this incident. Whengovernment counsel pointed out that based on Silva’stestimony, the alleged encounter in his home took place morethan three months before the arrest warrant hearings, Silvaclaimed he had actually been beaten an additional time by“four people dressed as police” in January 2007.

Silva failed to report any of these incidents in his asylumapplication to the Department of Homeland Security. Whenasked why he failed to mention the incidents involving thepolice outside his wife’s prison and in his home, Silva said heforgot to report them to his attorney. He also claimed that“[his] problem is very complex” and he worried that otherSalvadoran detainees would “steal [his] declaration” and beathim.

On cross-examination, government counsel alsoquestioned Silva about his alleged departure date from El


Salvador. Silva testified that he crossed the Texas border inearly January 2007 after spending only six hours or so inGuatemala and a handful of days in Mexico. Whengovernment counsel pointed out that this timeline wasinconsistent with the entry date to the United States that Silvareported in his asylum application, Silva testified that heactually exited El Salvador several weeks later than heinitially indicated. Silva subsequently admitted that heallowed his attorneys to tell a Salvadoran judge that he wastoo sick to attend the arrest warrant hearings when in fact hewas fleeing the country.

2

Several experts hired by Silva testified that they believedthe Salvadoran corruption charges were likely linked toSilva’s opposition to the ARENA party. One of theseexperts, a private investigator named Tom Parker, alsopresented a tape-recorded conversation in which AdolfoTorrez, a close confidant of the ARENA-affiliated president,told Silva he could make the charges against Silva and hiswife disappear for a price of $500,000. When Torrez’s offerbecame public, the ARENA party withdrew its support for theAttorney General because he knew about Torrez’s actions butfailed to investigate. Torrez subsequently died of a gunshotwound. Parker speculated that Torrez was murdered, thoughother reports on the forensic evidence indicate that Torrezcommitted suicide.

The IJ also heard testimony from Silva’s brother, whostated that Silva was protected by two bodyguards during histime as a legislator. Following such testimony, the IJ recalledSilva and asked him whether his bodyguards were presentduring the incidents he recounted in which police assaulted


him outside the prison and at his home. Silva testified thatonly one bodyguard was present during each incident becausethey took turns every twenty-four hours. He also assertedthat the bodyguard present during both incidents wasunarmed and was also beaten by police.

3

In August 2008, the IJ rendered his first decision,concluding Silva was non-credible and denying hisapplications. In so finding, the IJ noted discrepanciesbetween Silva’s testimony and his asylum applicationconcerning his exit date from El Salvador. The Board ofImmigration Appeals (“BIA”) reversed, finding that the IJ’slimited discussion—and especially his focus on the datediscrepancies—was inadequate to sustain the credibilitydetermination.

C

Following remand, the IJ conducted additional hearingsbetween May and September 2009. During this time, thegovernment introduced evidence that in addition to his crimesin El Salvador, Silva had also been charged with conspiracyto commit murder in Guatemala.

1

Exhibits and testimony at the second round of hearingsestablished that in February 2007, three Salvadoranrepresentatives to the Central American Parliament werefound murdered in a charred van outside Guatemala City. Among the murdered PARLACEN representatives wasEduardo D’Aubuisson, the son of ARENA’s founder and the


brother of Roberto D’Aubuisson, Jr., one of ARENA’scurrent leaders. Later inquiry by international investigatorsconcluded that the representatives were likely carrying $5million and twenty kilograms of cocaine.

Guatemalan authorities initially arrested four Guatemalanpolice officers whom they believed carried out the murders incooperation with a drug gang. Two weeks after being takeninto custody, however, these four officers were gunned downinside a Guatemalan prison, prompting the Guatemalangovernment to seek out assistance from the FBI and a taskforce sponsored by the United Nations called the InternationalCommission Against Impunity in Guatemala (“CICIG”). Guatemalan authorities subsequently charged and convicteda number of individuals for involvement in these killings,including a Guatemalan congressman named Manuel Castillo. Phone records showed Castillo placed calls to both thecorrupt police and the drug gang involved in the hit onD’Aubuisson and his companions. Castillo was sentenced to203 years in prison.

During Castillo’s trial, Guatemalan authorities offeredevidence that Silva cooperated with Castillo and the druggang in planning the killings. Correspondingly, theGuatemalan government filed a separate indictment againstSilva, indicating that Silva acted as the “intellectual author”behind the Guatemalan murders. Specifically, the indictmentaccuses Silva of planning the murders with Castillo andvarious gang members at a series of meetings in El Salvadorand Guatemala. Those allegations were corroborated duringCastillo’s trial by an eyewitness witness known as “Judas,”currently under government protection in El Salvador.


Silva’s experts questioned the legitimacy of theGuatemalan charges, and offered varying theories as to whyGuatemala would target Silva specifically. One expert, ajournalist named Lafitte Martine Fernandez-Rojas who wrotea popular book about the PARLACEN murders, speculatedthat Guatemalan officials actually ordered the hit andconspired to prosecute Silva to help ARENA hide the party’sconnection to drug dealing. Another expert stated his beliefthat Silva was a “fall guy” used by Guatemalan officials todistance themselves from allegations of drug trafficking.

2

Following this second round of hearings, the IJ issued anoral decision granting Silva asylum but denying Silvawithholding of removal or protection under the ConventionAgainst Torture (“CAT”). In so holding, the IJ concludedthat the BIA’s previous decision left him no choice but to findSilva credible. Upon review, the BIA vacated the IJ’sdecision and remanded the case again, noting that it hadmerely instructed the IJ to “provid[e] further explanation,”not accept Silva’s credibility without question. The BIA alsodirected the IJ to make a specific determination concerningSilva’s eligibility for protection under the CAT if necessary.

D

Following the second remand, the government argued tothe IJ that Silva was statutorily barred from seeking asylumor withholding of removal because there were serious reasonsto believe Silva committed money laundering in El Salvadorand conspiracy to commit murder in Guatemala. The IJagreed and declared Silva ineligible for asylum andwithholding of removal, but sought additional evidence


related to Silva’s CAT claim. During this time, the IJ tryingSilva’s case retired and the case was reassigned to a newjudge.1

1

In the next round of hearings, Silva’s experts testified insupport of his CAT claim that he would be tortured orexecuted in El Salvador because Roberto D’Aubuisson, Jr., ahigh-powered leader of ARENA and son of the party’sfounder, would seek retribution for his brother’s murder. Silva’s experts acknowledged that ARENA no longercontrolled the presidency in El Salvador, but insisted thatARENA continues to exert control over many aspects of thegovernment. Silva’s experts also argued that Silva wouldlikely not survive being jailed in Guatemala.

2

In March 2013, the IJ issued a decision denying Silva’sapplication for deferral of removal under the CAT andreiterating that he was ineligible for asylum and withholding

1 During this period, Silva also changed counsel multiple times. Theattorney representing Silva for the first two rounds of proceedingswithdrew after he received anonymous threats subsequent to Silva beinggranted temporary asylum. Silva’s next attorney withdrew afterparticipating in the initial hearings following the second remand, citing a“fail[ure] to cooperate” on Silva’s part. Silva claimed she misrepresentedher abilities, lied to him, and refused to work because of a fee dispute. Athird attorney withdrew after one appearance having learned about thethreats to Silva’s first attorney, prompting Silva to file a seventeen-pageattorney misconduct complaint. A fourth set of attorneys ultimatelyrepresented Silva through the remainder of proceedings, partly on a probono basis since many of Silva’s assets had been frozen by Salvadoranauthorities.


of removal. Before issuing his decision, however, the IJinquired whether Silva wished to reconsider his decisiondeclining to specify a preferred country of removal. Silvaindicated he wished to designate Nicaragua as his country ofremoval. The IJ granted Silva’s request, and designated ElSalvador as the alternate country of removal.

Considering Silva’s claims on the merits, the IJ concludedthat Silva was ineligible for asylum and withholding ofremoval because there were serious reasons for believing hecommitted serious nonpolitical crimes in both El Salvadorand Guatemala. The IJ also found Silva to be non-credibleafter concluding Silva’s explanation for failing to report hisviolent interactions with police in his asylum application washighly implausible. Additionally, the IJ pointed out that Silvaadmitted to having lied to the Salvadoran court, and foundthat Silva failed to produce relevant evidence corroboratinghis story about the attacks. Finally, the IJ held that Silva hadnot met his burden under CAT because he had notdemonstrated he would likely be tortured in either ElSalvador or Guatemala.

3

The BIA thereafter dismissed Silva’s appeal, largelyadopting the reasoning of the IJ. The BIA agreed that therewere serious reasons to believe that Silva was involved in theGuatemalan murders because the charging documents allegedspecific facts and were likely the product of a genuine fightagainst corruption. The BIA also concluded that there wereserious reasons to believe Silva committed a seriousnonpolitical crime in El Salvador. In so holding, the BIA alsoupheld the IJ’s adverse credibility determination, pointing toSilva’s lie to the Salvadoran court, his failure to report


incidents of police violence, and his lack of corroboratingevidence. Finally, the BIA upheld the IJ’s determinationdenying Silva’s CAT claim.

Silva timely petitioned for review.

II

“We review ‘denials of asylum, withholding of removal,and CAT relief for substantial evidence and will uphold adenial supported by reasonable, substantial, and probativeevidence on the record considered as a whole.’” Huang v.Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2013)). Theagency’s “findings of fact are conclusive unless anyreasonable adjudicator would be compelled to conclude to thecontrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, in order toreverse the BIA, “we must determine that the evidence notonly supports a contrary conclusion, but compels it—and alsocompels the further conclusion that the petitioner meets therequisite standard for obtaining relief.” Huang, 744 F.3d at1031 (alterations and internal quotation marks omitted). “Where, as here, the BIA adopts the IJ’s decision whileadding its own reasons, this court reviews both decisions.” Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011); seealso Shrestha v. Holder, 736 F.3d 871, 877 (9th Cir. 2013)(observing that “[w]hen the BIA conducts its own review ofthe evidence and law rather than adopting the IJ’s decision,”we review only the BIA’s decision “except to the extent thatthe IJ’s opinion is expressly adopted”).


III

Silva first argues that the record does not support theBIA’s conclusion that there are serious reasons to believe thathe participated in the murder of D’Aubuisson and hiscompanions in Guatemala, or engaged in bribery and moneylaundering in El Salvador. In so arguing, Silva contends thatthe IJ erred in finding him non-credible.

Because Silva’s application for relief was submitted afterMay 11, 2005, the REAL ID Act governs his case. Pub. L.No. 109-13, 119 Stat. 231 (2005); see Shrestha v. Holder,590 F.3d 1034, 1039 (9th Cir. 2010). The REAL ID Actstates in relevant part:

Considering the totality of the circumstances,and all relevant factors, a trier of fact maybase a credibility determination on . . . theinherent plausibility of the applicant’s orwitness’s account, the consistency betweenthe applicant’s or witness’s written and oralstatements. . . , the internal consistency ofeach such statement . . . and any inaccuraciesor falsehoods in such statements, withoutregard to whether an inconsistency,inaccuracy, or falsehood goes to the heart ofthe applicant’s claim, or any other relevantfactor.

8 U.S.C. § 1158(b)(1)(B)(iii); see also id. §§ 1231(b)(3)(C)(adopting this standard for withholding of removal),1229a(c)(4)(C) (all other relief). “Under the REAL ID Act,there is no presumption that an applicant for relief is credible,and the IJ is authorized to base an adverse credibility


determination on ‘the totality of the circumstances’ and ‘allrelevant factors.’” Huang v. Holder, 744 F.3d 1149, 1152–53(9th Cir. 2014) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). TheAct explicitly names factors such as “the inherentplausibility” of the applicant’s account, “consistency between[his] written and oral statements,” and the “consistency ofsuch statements with other evidence of record.” 8 U.S.C.§ 1158(b)(1)(B)(iii). However, “these statutory factors arenot exhaustive,” and “the agency can look to relevant pre-REAL ID Act factors, such as the ‘level of detail of theclaimant’s testimony.’” Bingxu Jin v. Holder, 748 F.3d 959,964 (9th Cir. 2014) (quoting Shrestha, 590 F.3d at 1040). “[O]nly the most extraordinary circumstances will justifyoverturning an adverse credibility determination.” Id.(quoting Shrestha, 590 F.3d at 1040). Nonetheless, “anadverse credibility determination cannot be based oncomplete speculation and conjecture.” Singh v. Lynch,802 F.3d 972, 977 (9th Cir. 2015). Instead, an IJ mustprovide “specific and cogent reasons” supporting such adetermination with reference to “specific instances in therecord.” Shrestha, 590 F.3d at 1044.

A

In upholding the IJ’s decision, the BIA first agreed withthe IJ that Silva’s failure to mention in his asylum applicationincidents of police violence that occurred outside the prisonand at his home in his asylum application was a significantomission that justified an adverse credibility finding. Silvahas pointed us to no evidence that compels a contraryconclusion.

Although it is true that “mere omission of details isinsufficient to uphold an adverse credibility finding,” Lai v.


Holder, 773 F.3d 966, 971 (9th Cir. 2014) (quoting Singh v.Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005)), an adversecredibility determination may be supported by omissions thatare not “details,” but new allegations that tell a “muchdifferent—and more compelling—story of persecution than[the] initial application,” Zamanov v. Holder, 649 F.3d 969,974 (9th Cir. 2011). For instance, in Zamanov, we concludedthat substantial evidence supported the BIA’s adversecredibility determination where a petitioner’s asylumapplication failed to mention three incidents in which policeinterrupted his participation in various political activities,arrested him, and beat him. Id. at 972. We noted that theseomissions “materially altered” his account of persecution byconnecting government persecution to his political activity,and thus “went to the core of his alleged fear of politicalpersecution” as our pre-REAL ID act case law required. Id.at 973–74.

We have since reiterated the rule explained in Zamanovseveral times. For instance, in Alvarez-Santos v. INS, weupheld the BIA’s adverse credibility determination where anapplicant failed to mention a violent incident supporting histwo previous asylum applications. 332 F.3d 1245, 1248–49(9th Cir. 2003). At the conclusion of his direct testimony, theapplicant mentioned for the first time that masked menassociated with a guerrilla group who had sent himthreatening letters came to his house, caught him, and stabbedhim in the shoulder. Id. at 1249. We held that it was “simplynot believable that an applicant for asylum would fail toremember” the experience of being attacked and stabbedwhich precipitated his flight from his home country. Id. at1254. Likewise, in Kin v. Holder, we held that a petitioner’sfailure to mention that he had been beaten by police afterparticipating in a political rally constituted substantial


evidence to support an adverse credibility finding, becausethese allegations were not “trivial details” but allegations“crucial to establishing they were persecuted for theirpolitical opinion.” 595 F.3d 1050, 1057 (9th Cir. 2010).

Here the BIA reasonably concluded that Silva’s failure tomention his altercations with police were not details, butinstead “significant events of alleged police misconduct thatwould have supported his applications for relief.” In hisasylum application, Silva stated only that the prosecution forcorruption in El Salvador aimed at himself and his family wasactually a form of persecution for Silva’s outspoken criticismof ARENA. At his immigration hearing, however, Silvareported for the first time that police brutally beat him outsidehis wife’s prison and again in his home—incidents which heclaims left him with permanent injuries and provokedextreme psychological trauma in his children. Moreover,Silva testified that when he asked the police why they werepointing a gun at his son, they told him it was “because ofyour political opinion [and] because you’re always talking.” These are not trivialities, but “pivotal event[s]” that were“crucial to establishing” that Silva actually sufferedpersecution as a result of his political opinion. See Alvarez-Santos, 332 F.3d at 1254; Kin, 595 F. 3d at 1057.

Likewise, Silva’s explanation for omitting these eventsfrom his application for asylum “is not persuasive enough tocompel the conclusion that the omissions were immaterial.” Kin, 595 F.3d at 1057. Before testifying about the altercationwith police outside his wife’s prison, Silva explained thatsuch incident was not included in his asylum applicationbecause he “forgot” to mention it to his attorney. Silva laterstated that he did not previously report his altercations withpolice because “[his] problem is very complex” and because


he worried other Salvadoran detainees might beat him and“steal [his] declaration.” Yet as the IJ and the BIA bothconcluded, it is “simply not believable” that Silva would failto remember such “dramatic incident[s]” so closely related tohis asylum claim. See Alvarez-Santos, 332 F.3d at 1254. Wealso agree with the agency that it strains belief to concludethat Silva would fear accusing unnamed police officers ofmisconduct when his initial asylum application accusedARENA’s highest ranking officials of wrongdoing andcorruption. Such circumstances clearly distinguish Silva’scase from instances in which we have found the BIA’scredibility determination based on an omission to beunsupported. See Lai, 733 F.3d at 974 (holding an adversecredibility determination was not supported where a claimant“gave a plausible and compelling explanation for theomission”).

Silva argues that various documents submitted severalyears after his testimony compel the conclusion that theagency’s credibility determination is mistaken. But as theBIA noted, many of these documents were based only onSilva’s own assertions or otherwise insufficient to corroboratehis version of events. For instance, Silva submitted anevaluation from a psychologist who examined him more thanfour years after his alleged encounters with police, and whosefindings were based entirely on Silva’s own account of pastevents. Likewise, the reports Silva submitted from twophysicians indicate only that Silva was seen for chest painand various other conditions roughly two years after theviolent incidents with police are said to have occurred. Silvaalso points to a statement attributed to his driver whichsupports his claims that he was beaten outside his wife’sprison. Yet the BIA found this report inconsistent withstatements by Silva’s brother that Silva was always


accompanied by bodyguards, and also pointed to Silva’sfailure to provide any corroborating evidence from his sonwhom police allegedly threatened—now aged 16 or17—despite the fact that several other family memberstestified on Silva’s behalf. Because the record does notcompel the conclusion that the agency’s assessment of thisevidence was mistaken or that “such corroborating evidence[was] unavailable,” we decline to reverse the IJ’s credibilitydetermination on this basis. See 8 U.S.C. 1252(b)(4); see alsoShrestha, 590 F.3d at 1047–48.

B

In addition to Silva’s failure to report incidents of allegedpersecution by the police, the IJ and the BIA also noteddiscrepancies in Silva’s testimony regarding his entry dateinto the United States. In his asylum application, Silva saidhe left El Salvador on January 7, 2007, and that he arrived inthe United States on February 1, 2007. However, after thegovernment’s attorney pointed out that this exit date wasirreconcilable with Silva’s reported timeline in traveling tothe United States, Silva then stated he actually left ElSalvador on January 22, 2007.

Silva argues that this date discrepancy is insufficient onits own to support an adverse credibility determination, as theBIA concluded on its first remand. We are inclined to agree. However, “when inconsistencies that weaken a claim forasylum are accompanied by other indications of dishonesty. . . an adverse credibility determination may be supported bysubstantial evidence.” Kaur v. Gonzales, 418 F.3d 1061,1067 (9th Cir. 2005). Here, the IJ and the BIA clarified thatSilva’s varying testimony on this point was significant not for


its own sake, but instead because it related directly to Silva’sefforts to avoid criminal charges.

The record demonstrates that following the legislature’srevocation of Silva’s immunity, a Salvadoran court heldhearings beginning on January 18, 2007, to determinewhether a warrant for Silva’s arrest ought to be issued. Silvatestified that he instructed his attorneys to submit a note to thejudge stating that he was too ill to attend the proceedingsbecause of the beating he sustained by police when theysearched his home. When DHS pointed out that Silva hadpreviously testified that this incident took place roughly threemonths before the court hearings, Silva claimed that he hadbeen beaten an additional time by individuals dressed aspolice in January 2007. The government then asked Silva toexplain how he was both too injured to attend the arrest-warrant hearings but well enough to flee El Salvador onJanuary 22 as he had just indicated. Silva first responded bysaying he was “just hurt” and “not totally in a grave state.” After the government lawyer repeated the question multipletimes, however, Silva admitted that he planned to and did fleeEl Salvador on January 22, and that his statement to the courtthat he was too ill to attend was fraudulent. We have held onnumerous occasions that the “[a]dmission of prior dishonestycan support an adverse credibility determination.” Don v.Gonzales, 476 F.3d 738, 741 n.5 (9th Cir. 2007); see alsoKaur, 418 F.3d at 1065 (“It strains credulity to hold that theevidence presented at the asylum hearing compels us to findKaur believable for the sole reason that she admitted to beinga liar.”). The IJ did not err in finding Silva non-credible ona such basis here.

In his opening brief, Silva’s attorney admits that Silvaintentionally lied to the Salvadoran court, but contends that


the lie was justified “to escape a sham trial at a puppet court.” But the record does not compel that conclusion. Althoughsome of Silva’s experts asserted that it is “virtuallyimpossible to get a fair trial in El Salvador,” they alsorecognized that justice can be had—an assertion furthersupported by the fact that Silva’s mother-in-law was acquittedof all charges against her, and his wife acquitted of several. Moreover, Silva’s appeal to possible corruption in theSalvadoran justice system does nothing to explain why Silvatestified to the IJ that he was too sick to attend the hearingsuntil inconsistencies in his own testimony forced him toadmit he was lying. See Don, 476 F.3d at 742 (observing thata petitioner’s argument that he lied to Sri Lankan police outof fear for his safety “d[id] not explain why Don provideddifferent dates to the asylum officer and to the IJ”). Theagency’s credibility determination was valid.

IV

Silva next argues that the BIA erred in concluding thatthere are serious reasons to believe that he committed twoserious nonpolitical crimes—conspiracy to murderD’Aubuisson and his companions in Guatemala and moneylaundering and bribery in El Salvador. Once again, wereview the BIA’s conclusion for substantial evidence. See Gov. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011).

A

An individual is ineligible for asylum and withholding ofremoval where “there are serious reasons for believing thatthe alien has committed a serious nonpolitical crime outsidethe United States.” 8 U.S.C. §§ 1158(b)(2)(A)(iii) (asylum),1231(b)(3)(B)(iii) (withholding of removal); see also 8 C.F.R.


§ 1208.16(d)(2). We have interpreted “serious reasons forbelieving” as “tantamount to probable cause.” Go, 640 F.3dat 1052; see also Matter of E-A-, 26 I. & N. Dec. 1, 3 (BIA2012).

In finding Silva ineligible for asylum and withholding ofremoval, the BIA determined that there are serious reasonsfor believing that Silva conspired with others to murderD’Aubuisson and the other PARLACEN delegates inGuatemala. Silva does not contest that the Guatemalanmurders were serious nonpolitical crimes, nor did he makeany such argument to the BIA. Thus, the only questionbefore us in relation to this issue is whether there are “seriousreasons for believing” Silva was complicit in these killings. See 8 U.S.C. § 1252(a)(1); Abebe v. Mukasey, 554 F.3d 1203,1208 (9th Cir. 2009) (en banc) (noting that a “ [p]etitionerwill . . . be deemed to have exhausted only those issues heraised and argued in his brief before the BIA.”).

As both the IJ and the BIA noted, the Guatemalanindictment provides strong reason to believe that Silva wasinvolved in the PARLACEN murders, not least because italleges specific facts connecting Silva to the crime. Theindictment accuses Silva of planning the murders withCastillo’s gang contacts at a series of meetings—one insidea restaurant allegedly owned by Osorto, the mayor who wasconvicted of corruption for assisting Silva in obtaininggovernment contracts, and a second meeting at a car wash inGuatemala. Moreover, the indictment’s allegations werecorroborated by “Judas,” an eyewitness whom theGuatemalan court deemed credible. Judas testified in nouncertain terms that he witnessed Silva meet with variousgang members, and that Silva planned the murder ofD’Aubuisson and his companions at those meetings. What is


more, Judas asserted that the murders were occasioned bySilva’s desire for political and financial revenge againstARENA—the same theory that supported the Guatemalangovernment’s conviction of Castillo for ordering the killings. Such evidence is certainly sufficient to constitute probablecause—a “fair probability” that Silva was involved in themurders. See United States v. Gourde, 440 F.3d 1065, 1069(9th Cir. 2006) (en banc) (quoting Illinois v. Gates, 462 U.S.213, 246 (1983)).

Silva argues that the probable cause standard wearticulated in Go is inapposite because unlike the petitionerin that case, Silva did not affirmatively admit to participatingin the murders. See Go, 640 F.3d at 1053. But there is noquestion that Go’s standard can be met without an explicitadmission of guilt, as other courts have rightly recognized.

For instance, in Khouzam v. Holder, 361 F.3d 161, 166(2d Cir. 2004), the Second Circuit relied on an Egyptianarrest warrant and police reports to conclude that there were“serious reasons for believing” that a petitioner hadcommitted a murder in that country. In so concluding, thecourt reasoned that, just as in Silva’s case, the documentssubmitted were sufficient to establish probable cause becausethey suggested a possible motive for the killing and offeredspecific allegations supporting the charge—that thepetitioner’s fingerprints were found at the scene, that he wasseen wearing a bloody shirt that was later recovered, and thateyewitnesses said he had an injured hand. Id. Silva contendsthat Khouzam is distinguishable because the charges in thatcase were supported by circumstantial evidence rather thaneyewitness testimony. But that difference is beside the point. Even assuming that the quantum of evidence in Silva’s casediffers from the evidence at issue in Kouzam, Silva has


pointed to no evidence that “compel[s] the conclusion thatprobable cause was lacking.” Go, 640 F.3d at 1053. Absentsuch a showing, the BIA’s determination must be upheld.

Silva also argues that the IJ improperly ignored thetestimony of Fernandez-Rojas and Silva’s other experts thatthe charges against Silva were pretextual and that thePARLACEN murders were in fact perpetrated by theGuatemalan government to cover up drug dealing. But theagency was within its discretion to reject these alternatetheories. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705n.7 (9th Cir. 2010) (observing that an IJ is “not required toadopt as true all of the facts” upon which an expert witnessbased his opinion where the IJ states “specific reasons in therecord why the testimony was insufficient to establish” factsnecessary to grant relief).

Here, both the BIA and the IJ found that evidence in therecord suggests that although there is corruption inGuatemala, there have been improvements especially relatedto that government’s investigation of the PARLACENmurders, making it unlikely that the charges against Silvawere pretextual. For instance, the BIA noted that in responseto the murder of the police officers who carried out thePARLACEN killings, the Guatemalan government sought theassistance of the FBI to help bring those responsible tojustice. Moreover, the record demonstrates that Guatemalahas convicted not only numerous gang members implicatedin the murders, but also Manuel Castillo, himself aGuatemalan official. Likewise, the BIA observed that thereliability of the CICIG report upon which Silva’s expertsbased their conclusions was at least questionable since thereport’s principal author has herself since been implicated incorruption and stripped of immunity by CICIG. One may


certainly disagree with the agency’s assessment of theevidence or believe such evidence “cast[s] a reasonable doubton [Silva’s] guilt.” Khouzam, 361 F.3d at 166. But that is afar cry from “compel[ling] a finding that [Silva] was framed”or that probable cause is lacking. Id.

Because the Guatemalan charges provide a sufficientbasis upon which to conclude that Silva is ineligible forasylum and withholding of removal, we need not reachSilva’s challenges to the BIA’s alternate conclusion that thereare serious reasons for believing that Silva committed asecond serious nonpolitical crime by engaging in bribery andmoney laundering in El Salvador. Silva is ineligible forasylum and withholding of removal.

B

Silva next argues that even assuming his possibleinvolvement in the Guatemalan murders renders himineligible for asylum and withholding of removal, the agencyshould have been forbidden from reaching this conclusionunder the law of the case doctrine.

The law of the case doctrine “generally preclude[s][courts] from reconsidering an issue previously decided bythe same court, or a higher court in the identical case.” Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703,715 (9th Cir. 1990). However, we have previously observedthat “it is doubtful that federal courts have the authority toextend the law of the case doctrine” to administrativeproceedings. Lockert v. U.S. Dep’t of Labor, 867 F.2d 513,518 (9th Cir. 1989); see also Biltmore Forest BroadcastingFM, Inc. v. FCC, 321 F.3d 155, 163 (D.C. Cir. 2003) (notingthat “the law of the case doctrine is of uncertain force in the


context of administrative litigation”); but see Stacy v. Colvin,No. 13-36025, 2016 WL 3165597, at *1 (9th Cir. June 7,2016) — F.3d — (holding that the law of the case doctrineapplies to social security administrative remands from federalcourt). That reticence makes sense in the context ofimmigration proceedings, because both the BIA and the IJhave explicit legal authority to reconsider their own decisionssua sponte. See 8 C.F.R. § 1003.2(a) (“The Board may at anytime reopen or reconsider on its own motion any case inwhich it has rendered a decision.”); 8 C.F.R. § 1003.23(b)(1)(“An Immigration Judge may upon his or her own motion atany time . . . reopen or reconsider any case in which he or shehas made a decision, unless jurisdiction is vested with theBoard.”). Indeed, we are aware of only one circuit that hasheld that the law of the case doctrine applies to immigrationproceedings. See Zhang v. Gonzales, 434 F.3d 993, 998 (7thCir. 2006) (interpreting the law of the case doctrine asforbidding a new IJ from reconsidering a petitioner’scredibility where that issue exceeded the scope of the BIA’sinstructions on remand). For the purposes of this appeal,however, we need not decide whether the law of the casedoctrine applies in the immigration context, because evenassuming it does, the doctrine provides no help to Silva.

For the law of the case doctrine to bar reconsideration ofan issue, “the issue in question must have been decidedexplicitly or by necessary implication in the previousdisposition.” United States v. Lummi Indian Tribe, 763 F.3d1180, 1187 (9th Cir. 2014) (quoting United States v. LummiIndian Tribe, 235 F.3d 443, 452 (9th Cir. 2000)). Silvaadmits that neither the IJ nor the BIA explicitly decidedwhether he was ineligible for asylum and withholding ofremoval on the basis of the serious nonpolitical crimes barbefore the final round of decisions. Nonetheless, he argues


that the IJ and the BIA “found by necessary implication” intheir earlier decisions that the bar did not apply. We disagree.

In its first decision, the IJ denied Silva asylum andwithholding of removal on the basis of its adverse credibilitydetermination. The BIA reversed and remanded, stating thatthe IJ’s focus on the discrepancies in dates relating to Silva’sdeparture from El Salvador was inadequate to sustain thecredibility determination. Subsequently, the IJ issued asecond decision granting Silva asylum, based in large part onhis erroneous view that the BIA’s previous ruling requiredthat he find Silva credible. We doubt that this decision heldby “necessary implication” that the serious nonpoliticalcrimes bar did not apply, since we find no evidence that theIJ was ever presented with or actually considered that issue. See Lummi Nation, 763 F.3d at (noting that “law of the caseacts as a bar only when the issue in question was actuallyconsidered and decided by the first court” (quoting UnitedSteelworkers of Am. v. Ret. Income Plan for Hourly-RatedEmployees of ASARCO, Inc., 512 F.3d 555, 564 (9th Cir.2008))); Hall v. City of Los Angeles, 697 F.3d 1059, 1067(9th Cir. 2012) (holding that an issue was not decided bynecessary implication where it “had never been considered ordecided by any court”); see also Black’s Law Dictionary (9thed. 2009) (defining “necessary implication” as “[a]nimplication so strong in its probability that anything to thecontrary would be unreasonable”). Yet even assuming theIJ’s second decision addressed the serious nonpolitical crimesbar by “necessary implication” insofar as it granted Silvaasylum, the BIA reversed the IJ’s decision and once moreremanded the case. Moreover, nowhere in BIA’s seconddecision do we find any indication that it considered andrejected the applicability of the bar, or that it granted anyform of relief suggesting the bar did not apply. To the


contrary, the BIA’s decision returned the matter to the IJ withexplicit instructions to conduct further inquiry to determinewhether Silva was actually entitled to asylum or any otherform of relief. Silva’s law of the case argument is meritless.

V

Although Silva is ineligible for asylum and withholdingof removal under 8 U.S.C. §§ 1158(b)(2)(A)(iii) and1231(b)(3)(B)(iii), he may still seek deferral of removal underthe CAT. See 8 C.F.R. § 1208.17(a); see also Go, 640 F.3dat 1053. To succeed in obtaining such relief, a petitionermust establish that “it is more likely than not that he or shewould be tortured if removed to the proposed country ofremoval.” 8 C.F.R. § 1208.16(c)(2) (emphasis added); seealso 8 C.F.R. § 1208.17(a) (applying this standard to deferralof removal). Such language plainly requires that a petitionermust demonstrate he will likely suffer torture in the countryto which he is actually ordered removed “as opposed to analternative country of removal.” She v. Holder, 629 F.3d 958,965 (9th Cir. 2010) (examining identical language ascontained in 8 C.F.R. § 1208.16(b)); see also 8 C.F.R.§ 1240.10(f) (contrasting the IJ’s power to designate “thecountry of removal” with the IJ’s ability to identify multiple“alternative countries of removal”) (emphasis added).

At his initial immigration hearing, Silva decided not todesignate a country of removal, prompting the IJ initiallyassigned to Silva’s case to designate El Salvador as thecountry of removal in accordance with the relevant statute. See 8 U.S.C. § 1231(b)(2) (establishing the process fordetermining the country to which an alien who has beenresiding in the United States shall be removed). Subsequently, that IJ retired, and a new IJ took over Silva’s


case and conducted hearings on Silva’s CAT claim. At theconclusion of these hearings, this IJ inquired on his owninitiative whether Silva wished to reconsider his decision toforego designating a country of removal. After consultingwith counsel, Silva requested that Nicaragua be designated ashis country of removal. The IJ obliged, and ultimatelyordered that Silva be removed to Nicaragua as the primarycountry of removal, or alternatively to El Salvador.

Silva appealed the IJ’s decision to the BIA and contestedthe IJ’s determination that he failed to meet his burden underCAT. However, Silva’s arguments focused exclusively onthe likelihood that he will suffer torture in either El Salvadoror Guatemala. At no point did Silva argue to the BIA, norhas he argued to us, that he would likely suffer torture ifremoved to Nicaragua—“the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Because this issue is unexhausted,we have no power to review it. See 8 U.S.C. § 1252(d)(1);Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (enbanc) (holding that an alien is “deemed to have exhaustedonly those issues he raised and argued in his brief before theBIA”); see also Pagayon v. Holder, 675 F.3d 1182, 1188 (9thCir. 2011) (“A petitioner must specify the issues he intendsto raise on appeal; a ‘general challenge to the IJ’s decision’will not suffice.’” (quoting Zara v. Ashcroft, 383 F.3d 927,930 (9th Cir. 2004))). The BIA’s order commanding Silva’sremoval to Nicaragua stands.2

2 We note that Silva also challenges the BIA’s determination that he hasnot demonstrated a likelihood that he would be tortured in El Salvador, thealternate country of removal. Because this challenge does not relate to“the proposed country of removal,” which is properly the focus of Silva’sCAT claim, we do not review it at this time. See 8 C.F.R. § 1208.16(c)(2);She, 629 F.3d at 965 n.7. However, should El Salvador ultimately becomethe proposed country of removal, see 8 U.S.C. § 1231(b)(2)(C), we fully


VI

For the foregoing reasons, the petition for review is

DENIED.

expect that the BIA will grant a motion to reopen Silva’s application suchthat we may consider his challenge to this aspect of the BIA’sdetermination. Cf. She, 629 F.3d at 965.

silva-pereira v. lynch

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