United States Court of Appeals 

For the First Circuit 

No. 18-2172 

JOSE ANTONIO LOJA-PAGUAY, 

Petitioner, 

v. 

WILLIAM P. BARR,* 

UNITED STATES ATTORNEY GENERAL, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

Daniel T. Welch, Kevin MacMurray, and MacMurray & Associates 

on brief for petitioner. 

 Brendan P. Hogan, Attorney, U.S. Department of Justice, 

Office of Immigration Litigation, Joseph H. Hunt, Assistant 

Attorney General, Civil Division, and Cindy S. Ferrier, Assistant 

Director, on brief for respondent. 

September 16, 2019 

 * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

William P. Barr has been substituted for former Acting Attorney 

General Matthew G. Whitaker as the respondent. 
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LYNCH, Circuit Judge. Jose Antonio Loja-Paguay, a 

native and citizen of Ecuador, seeks review of a Board of 

Immigration Appeals (BIA) decision affirming an Immigration 

Judge's (IJ) denial of his claims for asylum under the Immigration 

and Nationality Act (INA) § 208, 8 U.S.C. § 1158, withholding of 

removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and 

protection under Article 3 of the United Nations Convention Against 

Torture (CAT).1

The IJ found that Loja was not a credible witness based 

on several discrepancies in his testimony that were not adequately 

explained, and the combination of that finding and the remaining 

evidence demonstrated that Loja had not met his burden for any 

relief. As to CAT relief, independent of Loja's testimony, the IJ 

found there was nothing to show Loja would be tortured upon his 

return to Ecuador. The IJ ordered him removed. The BIA affirmed. 

Loja argues to us that the BIA erred in determining he 

had not meaningfully challenged the adverse credibility finding, 

in affirming that finding, and in failing to consider all the 

evidence. Because there was substantial evidence supporting the 

 1 The Convention Against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 

was implemented in the United States by the Foreign Affairs Reform 

and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242, 112 Stat. 

2681–761 (codified at 8 U.S.C. § 1231). 
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BIA's affirmance of the IJ's decision, we deny the petition for 

review. 

I. 

Loja entered the United States on January 11, 2013, near 

Hidalgo, Texas, and was apprehended by immigration officials. Loja 

stated that he entered the United States because "he was traveling 

to New Jersey to reside and to seek employment for approximately 

two years." An asylum officer conducted a credible fear interview 

with Loja in Spanish.2 Loja stated that he could not return to 

Ecuador because of a series of events that took place in November 

2012. 

According to Loja, on November 15, 2012, two police 

officers entered his food store and "said [he] had to sell drugs 

and guns for them." Loja refused. On November 20, 2012, the two 

officers returned with a third officer and told Loja that "if [he] 

did not sell the drugs and guns," the officers would kill him. 

The officers warned Loja not to tell anyone else what they wanted. 

When the asylum officer asked Loja why he did not report this 

incident to the police, Loja gave two reasons: that the police in 

Ecuador are corrupt and that his neighbors had told him the police 

killed his father. After the incident, Loja's neighbor told him 

that one of the police officers was the same person who killed his 

 2 A paralegal from Loja's attorney's office listened in on 

the interview. 
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father. Loja closed his store but reopened it on November 25, 

2012. That day, the officers returned and beat Loja until he was 

unconscious while saying, "we are going to kill you." Loja did 

not report this incident because he feared the police and now "knew 

that one of them killed [his] father." Loja left Ecuador on 

November 27, 2012. 

On February 15, 2013, the Department of Homeland 

Security served Loja with a Notice to Appear in removal 

proceedings, charging that he was inadmissible under 

§ 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I). 

On April 16, 2014, Loja conceded removability and stated his intent 

to seek asylum, withholding of removal, voluntary departure, and 

relief under the CAT. 

That day, Loja filed an application for asylum. The 

affidavit attached to the asylum application described the same 

three events involving the police that he had recounted in the 

credible fear interview. Loja again said that he fled Ecuador out 

of fear that the police officers would return and kill him "like 

they killed [his] father." 

At his merits hearing in 2017, Loja testified with the 

assistance of an interpreter. Loja told the IJ about the same 

three incidents involving police officers, and stated that he did 

not report the incidents due to police corruption in Ecuador. But 

he did not say that one of those officers had killed his father. 
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Loja said, "if I return and I run into them, they are going to 

kill me." 

The IJ then asked Loja about what happened to his father. 

Loja told the IJ that "he died." Loja said he did not know how 

his father died, and that all he had been told by neighbors as a 

child was that "it was some police officers." The IJ then again 

asked Loja, "[t]oday, right now, do you know who killed your 

father" and Loja said "[n]o." 

The IJ then questioned Loja about his statement to the 

asylum officer, but absent from his testimony, that a neighbor had 

informed him that one of the police officers threatening him was 

the officer who killed his father. Loja responded that "[i]t's 

also a long time and I don't even remember" and then said, "I don't 

remember specifically what the neighbors told me who killed my 

father, but they did tell me that they were police officers." When 

asked about the discrepancies between his accounts, Loja first 

stated, "[w]ell, I get confused." When the IJ asked again, Loja 

said, "[i]t's many years . . . that I said that, so a long time 

has passed to remember everything that I said." When the IJ sought 

clarification, Loja stated that he forgot. 

The IJ issued an oral decision on November 17, 2017. As 

to Loja's forgetting that the officer who beat him unconscious was 

the officer who reportedly killed his father, the IJ said: 
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[T]he respondent during his testimony to the 

court never mentioned this and after the 

attorneys had questioned the respondent, the 

court carefully questioned him and again, he 

did not mention this. When the court asked 

him to explain and made clear to him what he 

had said to the asylum officer, the respondent 

answered that he had forgotten. This is 

farfetched. This is not plausible. Even 

taking into account the fact that the 

respondent was born on February 2, 1993 and 

interviewed by asylum officers on February 4, 

2013, that is even taking into account his age 

and the circumstances of his arriving in the 

United States, even taking all of that in the 

best light for the respondent, it is simply 

not plausible that the respondent would forget 

that one of the individuals who he alleges 

brutally beat him after wanting him to sell 

weapons and drugs out of his store was one of 

the individuals, according to his neighbor, 

who murdered his father. That is simply not 

plausible, not believable, and beyond 

farfetched. The court finds that respondent 

was given every opportunity to explain this. 

His attorney has noted that he was aware of 

this discrepancy and the respondent has said 

that he forgot. This is not a minor fact. 

This is not something that the respondent in 

this court's view would reasonably forget. 

There's been no explanation whatsoever 

provided to the court as to why the respondent 

would forget that one of the individuals that 

beat him unconscious or one of the individuals 

that he believes beat him unconscious is the 

same individual, a police officer, who killed 

his father. This inconsistency, which is 

unexplained to this court, is fatal to the 

respondent's credibility. The court does not 

accept the respondent's explanation that he 

simply forgot this. 

The IJ then found Loja's entire story not credible, that he had 

not shown that he owned a business or was ever assaulted, or that 

he had suffered any harm, much less harm rising to the level of 
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persecution. Nor had he shown any nexus to one of the five 

protected grounds. The IJ also found that Loja lacked a wellfounded fear of future persecution. 

Loja appealed the IJ's decision to the BIA, and his 

appeal was dismissed on November 2, 2018. The BIA rejected Loja's 

challenge to the IJ's determination, including the credibility 

finding, and said it found Loja's explanation that he "was 

confused" by the IJ's questioning to be "unconvincing," and in any 

event, was supported by the IJ's view of the evidence. In the 

absence of any credible testimony, Loja had not met his burden for 

establishing eligibility for asylum or withholding of removal. 

The denial of Loja's CAT claim was supported by the lack of 

credibility finding and the absence of any evidence he would be 

tortured by or with the acquiescence of any person acting in an 

official capacity. 

II. 

We review "[f]actual findings, including credibility 

determinations . . . under the familiar substantial evidence 

standard." Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009). 

Under this deferential standard, "we must uphold the BIA's decision 

'unless any reasonable adjudicator would be compelled to conclude 

to the contrary.'" Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 

2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). "In other words, 

findings of fact will stand as long as they are 'supported by 
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reasonable, substantial, and probative evidence on the record 

considered as a whole.'" Jianli Chen v. Holder, 703 F.3d 17, 21 

(1st Cir. 2012) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 

(1992)). Where, like here, "the BIA adopts and affirms the IJ's 

ruling but also examines some of the IJ's conclusions, this Court 

reviews both the BIA's and IJ's opinions." Perlera–Sola v. Holder, 

699 F.3d 572, 576 (1st Cir. 2012). 

To be eligible for asylum, an applicant must show 

"persecution or a well-founded fear of persecution on account of 

race, religion, nationality, membership in a particular social 

group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). An 

applicant's testimony alone can meet this burden, but if the agency 

finds that the testimony is not truthful, "that determination 

strips the testimony of probative force and permits the agency to 

. . . discount it." Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 

2007). The REAL ID Act permits the IJ to consider inconsistencies 

in an applicant's statements, "without regard to whether an 

inconsistency . . . goes to the heart of the applicant's claim." 

8 U.S.C. § 1158(b)(1)(B)(iii). 

We bypass Loja's meritless assertions that the agency 

erroneously found waiver and failed to consider the whole record 

or to give a reasoned decision. We get to the attack on the 
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adverse credibility finding, as it is clear there is no 

corroborating evidence supporting his claims for relief.3 

Loja makes three arguments attacking the credibility 

finding. He argues that there was no discrepancy in the record, 

that he did not forget but was "confused" by the IJ's questioning, 

and that even if there were inconsistencies, they "only involved 

a very small portion of the testimony." 

Loja's challenges fail. Loja admits stating in the 

credible fear interview and his asylum affidavit that the same 

police officer who beat him also killed his father. Loja failed 

to state this fact in his testimony to the IJ, even when he was 

specifically asked about his father. Moreover, the IJ was not 

required to credit Loja's single assertion of confusion. See, 

e.g., Weng v. Holder, 593 F.3d 66, 72 (1st Cir. 2010) (noting that 

the IJ is not obligated to accept an explanation for an 

 3 Loja also argues that the BIA "[did] not accurately 

present the facts." Loja points to the BIA's statement that he 

"consistently testified he forgot" as being inaccurate because he 

also stated that he was confused. However, this statement does 

not show that the BIA thought that forgetting was Loja's only 

explanation. Rather, the BIA acknowledged Loja's purported 

confusion but did not find it convincing. 

Loja also states that his interpreter "felt the need to 

point out that they could tell that Spanish was not [Loja's] first 

language." We reject this argument because Loja told the IJ 

multiple times that he understood his interpreter. 

Loja also states that "it is common knowledge that being 

beaten unconscious hinders memory." This argument has no support 

in the record. We reject it. 
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inconsistency, even if reasonable and consistent on its face). 

Also, Loja stated multiple times that he did not remember. 

Loja also argues that these inconsistencies were "a very 

small portion of the testimony." These inconsistencies were not 

minor. Loja's application for relief stated that he feared 

returning to Ecuador in part because the police who beat him also 

had killed his father. This fact is central to Loja's asylum 

claim. This argument fails under the REAL ID Act. 

We conclude there was substantial evidence supporting 

the BIA's affirmance of the IJ's decision. The record provides 

ample support for the IJ's finding that Loja's statements were 

inconsistent and that his explanation was implausible.4

Loja's petition for review is denied. 

 4 Because Loja has failed to meet his burden for asylum, 

he cannot prevail on the higher burden for withholding of removal. 

See Li Sheng Wu v. Holder, 737 F.3d 829, 832 n.1 (1st Cir. 2013). 

As to CAT relief, an applicant must show that it is "more likely 

than not that [he] would be tortured if removed." Id. (quoting 

Zheng v. Gonzales, 416 F.3d 97, 101 n.3 (1st Cir. 2005)). Without 

Loja's own testimony, the record contains nothing that shows Loja 

faced any harm, let alone torture.