NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO NUNEZ-GONZALEZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-70343

Agency No. A099-967-430

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 11, 2022**

Pasadena, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and HELLERSTEIN,***

District Judge.

Francisco Nunez-Gonzalez (“Petitioner”), a thirty-three-year-old native and 

citizen of Mexico, petitions for review of a decision of the Board of Immigration 

* 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).

*** The Honorable Alvin K. Hellerstein, United States District Judge for 

the Southern District of New York, sitting by designation.

FILED

MAY 13 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appeals (“BIA”) upholding the immigration judge’s (“IJ”) denial of his claims for 

asylum, cancellation of removal, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). The BIA affirmed the IJ’s decision and 

dismissed Petitioner’s appeal. 

We have jurisdiction under 8 U.S.C. § 1252. We review de novo

constitutional claims and questions of law, Vargas-Hernandez v. Gonzales, 497 

F.3d 919, 921 (9th Cir. 2007), and we review for substantial evidence the agency’s 

factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th Cir. 2006). 

We deny the petition for review.1

1. Substantial evidence supports the agency’s adverse credibility 

determination as to the testimony of Petitioner and his witnesses. The IJ first

found that Petitioner was not credible based on inconsistencies between his own 

written declarations and oral testimony. The IJ next found that Petitioner’s sister 

provided testimony that was inconsistent with Petitioner’s testimony. Finally, the 

1 The IJ found, and the BIA affirmed, that Petitioner was ineligible for cancellation 

of removal, asylum, or withholding of removal based on his 2013 conviction for 

possession with intent to distribute methamphetamine, in violation of Cal. Health 

& Safety Code § 11378, which the IJ determined to be an aggravated felony and 

particularly serious crime. Petitioner has not challenged these determinations in 

his opening brief. Because issues not raised in an opening brief are deemed 

abandoned, see Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005); 

see also Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996) (holding 

issue waived when petitioner failed to address it the argument portion of his brief), 

we limit our review to the agency’s adverse credibility determination, its denial of 

protections under the CAT, and Petitioner’s denial of due process claim.
3 

IJ found that Petitioner’s mother was not credible based on inconsistencies 

between her written declaration and oral testimony, and that her testimony failed to 

corroborate Petitioner’s claim or rehabilitate Petitioner’s credibility. The BIA held 

that the IJ’s findings were not clearly erroneous. The inconsistencies and 

omissions noted by the agency are substantial and sufficient to support the adverse 

credibility determination. Having reviewed the record, we cannot say it compels a 

contrary conclusion.

First, Petitioner’s oral testimony was inconsistent with his written 

declarations because it included two additional and more recent threats of harm

that bolstered his claim of future persecution. In his initial declaration, Petitioner 

gave as his basis for relief his fear that if he were to be returned to Mexico he 

would be persecuted because he was a Chicano, a “Mexican deportee[] with no 

family ties to Mexico.” He gave as an example an incident in 2013, when his 

wife’s uncle was kidnapped and robbed while on a business trip to Sinaloa, 

Mexico. In a supplemental written declaration, Petitioner changed his account to 

base his fear on his connection to his sister’s former partner, Jose, a co-defendant 

in Petitioner’s 2013 arrest and conviction for possession with intent to distribute 

methamphetamine and who allegedly owed drug dealers or cartel members 

$50,000 for the drugs that were confiscated when Petitioner and Jose were 

arrested. As evidence of the threat against him, Petitioner averred that, in 2013, 
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two men came to his home and threatened to kill him if he did not pay Jose’s debt. 

Petitioner also averred that he learned, in 2017, that Jose was safe in Mexico

because he had cartel connections, but that Jose’s cousin, also a drug dealer

deported to Mexico, was killed there by the syndicate that had threatened 

Petitioner. 

Before the IJ, however, Petitioner testified about two other and more recent 

events that he claimed supported his fear that he would be harmed in Mexico. 

These events were wholly absent from either of his written declarations. Petitioner 

testified that in 2015, the two men who visited Petitioner in 2013 visited his aunt’s 

house and threatened to hurt Petitioner. Petitioner also testified that the two men 

showed up at his work in 2016 and threatened the same. 

Petitioner argues that these inconsistencies were minor omissions and cannot 

form the basis for an adverse credibility determination. We disagree. Petitioner’s 

bolstering testimony contained wholly new allegations and told a “much 

different—and more compelling—story of persecution than [the] initial 

application.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016) 

(alteration in original) (citation omitted). And “[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 v. Holder, 590 F.3d 

1034, 1046–47 (9th Cir. 2010). Moreover, when asked why the additional events 
5 

were not included in his written declarations, Petitioner first blamed his attorney 

and then admitted that he had not read his declarations before certifying them as 

accurate and complete—an unpersuasive explanation that the IJ was entitled to 

disbelieve. See Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th Cir. 2010). 

Although Petitioner’s omissions alone are sufficient to uphold the agency’s 

conclusion, see Manes v. Sessions, 875 F.3d 1261, 1264 (9th Cir. 2017) (per 

curiam), the IJ’s finding is further supported by the noted inconsistencies between 

Petitioner’s testimony regarding Jose’s cartel connections and the testimony and 

written declaration of Petitioner’s sister, in which she denied that Jose was, or ever 

had been, part of a cartel. The IJ found that this contradiction undermined 

Petitioner’s claim, and thus his credibility, because the basis for his fear was that 

he did not have the cartel connections that Jose had, and which kept Jose safe.

In addition, the IJ found that Petitioner’s mother’s testimony was not 

credible and failed to corroborate or rehabilitate Petitioner’s credibility. 

Petitioner’s mother submitted a written declaration replete with details about the 

2013 incident when the two men came to Petitioner’s house, as well as described 

an intervening incident—between the two merits hearings—in December 2017, 

when two men allegedly showed up at Petitioner’s grandmother’s house in Nayarit, 

Mexico, armed with pistols, and threatened to take the house if Petitioner did not 

pay Jose’s debt. Petitioner’s mother’s oral testimony, however, was substantially 
6 

less detailed, and at several points, directly contradicted statements in her written 

declaration. When confronted with the inconsistencies on direct and crossexamination, his mother initially doubled down, adhering to her oral 

representations, and leading the IJ to question whether his mother actually had 

written her own declaration. After repeatedly being asked about the 

inconsistencies, Petitioner’s mother reversed herself and stated that the 

declarations were accurate representations. When asked why she had repeatedly 

denied them, his mother stated that she “forgets things.” The IJ rejected 

Petitioner’s mother’s testimony, and substantial evidence supports that finding. 

See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). 

In addition, substantial evidence supports the agency’s conclusion that 

Petitioner failed to rehabilitate his testimony with documentary or testimonial 

evidence. Having found Petitioner not credible, the IJ was not required to, but did,

provide Petitioner with notice and an opportunity to respond with corroborating 

evidence. See Bhattarai v. Lynch, 835 F.3d 1037, 1046–47 (9th Cir. 2017). The IJ 

specifically advised Petitioner that it would be extremely helpful to have the 

testimony of percipient witnesses. Petitioner failed to provide any such evidence

to corroborate his claims. His sister’s testimony could not do so because she was 

not a percipient witness to any of the reported incidents of threats, and his mother’s 

testimony could not do so because the IJ found it not credible. Although Petitioner 
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could have obtained written declarations from both Jose and his grandmother,2 he 

failed to do so because he did not think they would be helpful or necessary.

In the absence of credible testimony, and any further evidence corroborating 

Petitioner’s claims, we affirm the agency’s conclusion. 

2. Substantial evidence also supports the agency’s determination that 

Petitioner is not eligible for CAT protection. Petitioner’s claim for relief is based 

on the same testimony that the agency deemed not credible. While an adverse 

credibility finding does not necessarily defeat a claim for CAT relief, Petitioner’s 

country conditions evidence is insufficient to meet his burden. Although the 

evidence shows that crime rates in Mexico are high, and that drug cartels commit 

brutal crimes, the evidence also shows that the Mexican government is 

investigating and prosecuting crime and corruption. Therefore, it cannot be said 

that the government of Mexico would either acquiesce in, or fail to prevent, efforts 

to torture Petitioner. See 8 C.F.R. § 1208.16(c)(2); Andrade v. Lynch, 798 F.3d 

1242, 1245 (9th Cir. 2015) (per curiam). In addition, Petitioner’s evidence does 

not show that he suffers an individualized risk of harm. See Delgado-Ortiz v. 

Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (finding that “generalized evidence of 

2 Petitioner’s sister speaks to Jose once a month because they have three children 

together, and Petitioner’s mother speaks to his grandmother daily. The IJ found, 

and Petitioner did not deny, that Petitioner could have obtained declarations from 

both.
8 

violence and crime in Mexico is not particular to Petitioners and is insufficient to” 

establish an individualized risk of torture). Thus, Petitioner’s country conditions 

evidence does not compel the conclusion that he is more likely than not to be 

tortured if he is removed to Mexico. See Shrestha, 590 F.3d at 1048–49. 

3. Finally, we hold that the agency’s adverse credibility determination did 

not violate Petitioner’s due process rights. Petitioner was afforded a full and fair 

opportunity to be heard before a neutral arbiter, see Jiang v. Holder, 754 F.3d 733, 

741 (9th Cir. 2014), was represented by counsel, and was able to present written 

and oral testimony and other evidence in support of his application. See VargasHernandez v. Gonzales, 497 F.3d 919, 926–27 (9th Cir. 2007). 

PETITION DENIED.