NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDGAR JESUS CORENEJO BAUTISTA, 

AKA Jesus Martin Rivera Torres, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-73336 

Agency No. A201-287-454 

MEMORANDUM *

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 13, 2024

San Francisco, California

Before: BEA, HAMILTON,** and CHRISTEN, Circuit Judges.

Petitioner Edgar Jesus Corenejo Bautista is a Mexican citizen who 

unlawfully reentered the United States in August 2015 after several prior 

removals. After immigration authorities took action to remove him, Bautista 

petitioned for withholding of removal and protection under the Convention 

Against Torture, also known as the CAT. He claimed past persecution and a fear 

* This disposition is not appropriate for publication and is not 

precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable David F. Hamilton, United States Circuit Judge for 

the Court of Appeals, Seventh Circuit, sitting by designation.

FILED

AUG 15 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

of future persecution and torture at the hands of the local mayor and police in his 

hometown. Bautista asserted that local authorities are affiliated with and aid 

dangerous drug traffickers. 

After an evidentiary hearing, an immigration judge denied all relief. The 

judge found that Bautista’s account of past persecution and feared future 

persecution and torture in Mexico was not credible. The judge identified eighteen 

separate factors as supporting her adverse credibility determination. The judge 

also found that Bautista failed to establish the likelihood of future persecution 

based on his membership in a particular social group, and failed to establish that 

it was more likely than not he would be tortured if he were removed to Mexico.

The Board of Immigration Appeals affirmed the judge’s decision and 

incorporated portions of that decision as its own, citing Matter of Burbano, 20 

I. & N. Dec. 872, 874 (B.I.A. 1994). The Board found no error in the judge’s 

adverse credibility determination. The Board also found that Bautista waived his 

substantive challenges to the denial of withholding of removal and CAT relief by 

failing to raise any arguments specifically addressing the judge’s merits findings 

on these points in his administrative appeal. Bautista then filed this petition for 

judicial review. We deny the petition with respect to withholding of removal but 

grant the petition in part and remand to the Board for consideration of relief under 

the Convention Against Torture.

On judicial review of decisions by the Board of Immigration Appeals, we 

review determinations of law de novo and the agency’s factual findings for 
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substantial evidence. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 

2022). Here, because the Board cited Matter of Burbano and provided its own 

review of the evidence and the law, we review both the immigration judge’s and 

the Board’s decisions. Id. Substantial-evidence review means we will uphold 

the findings “unless the evidence compels a contrary result.” Diaz-Reynoso v. 

Barr, 968 F.3d 1070, 1076 (9th Cir. 2020) (internal quotations omitted).

Judicial review of such findings is not, however, an automatic stamp of 

approval, even for findings on credibility. Iman v. Barr, 972 F.3d 1058, 1064 

(9th Cir. 2020). Immigration judges need to explain their credibility findings. 

Barseghyan v. Garland, 39 F.4th 1138, 1142 (9th Cir. 2022) (remanding denial 

of asylum and related relief where three of four grounds for adverse credibility 

finding were not supported: “If an IJ determines that a noncitizen is not credible, 

the IJ must provide specific and cogent reasons to support [her] adverse 

credibility determination.” (internal quotation omitted)); Shrestha v. Holder, 590 

F.3d 1034, 1044 (9th Cir. 2010) (requiring specific and cogent reasons for 

credibility findings). If an explanation by the judge or Board gets the facts or law 

wrong, is internally inconsistent or illogical, or ignores important countervailing 

evidence in the record, a reviewing court may find that the judge and Board did 

not support their decisions with substantial evidence according to law. E.g., 

Munyuh v. Garland, 11 F.4th 750, 764 (9th Cir. 2021) (remanding denial of 

asylum; “substantial-evidence review does not require us to credit the credibility 
4

finding of an IJ who . . . misconstrues . . . the record to reach it”); Ai Jun Zhi v. 

Holder, 751 F.3d 1088, 1091 (9th Cir. 2014) (remanding denial of asylum).

Before reaching the merits, we must note that, contrary to the government’s 

arguments, Bautista’s petition was timely under Santos-Zacaria v. Garland, 598 

U.S. 411, 417 (2023) (requirement to exhaust administrative remedies under

8 U.S.C. § 1252(d)(1) is claim-processing rule, not a jurisdictional rule), and

Alonso-Juarez v. Garland, 80 F.4th 1039, 1047–49 (9th Cir. 2023). 

The government also argues that Bautista waived any challenges to most 

of the factors supporting the judge’s adverse credibility determination, as well as 

to the judge’s merits findings on his withholding-only and CAT claims, on the 

theory that he failed to exhaust his administrative remedies on those points. See

8 U.S.C. § 1252(d)(1); Umana-Escobar, 69 F.4th at 550, quoting Bare v. Barr, 

975 F.3d 952, 960 (9th Cir. 2020). Exhaustion does not “require the issue to have 

been raised in a precise form during the administrative proceeding.” Bare, 975 

F.3d at 960. “Rather, the petitioner may raise a general argument in the 

administrative proceeding and then raise a more specific legal issue on appeal.”

Id. “What matters is that the BIA was sufficiently on notice so that it ‘had an 

opportunity to pass on this issue.’” Id., quoting Zhang v. Ashcroft, 388 F.3d 713, 

721 (9th Cir. 2004).

Bautista’s brief was sufficient to put the Board on notice that he was 

challenging the judge’s adverse credibility finding under the totality of the 

circumstances. The argument section of Bautista’s Board brief opened by noting 
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that the judge’s central rationale for denying Bautista’s application was the 

adverse credibility determination. The brief also said that the judge failed to 

consider the “totality of all circumstances and all relevant factors” when she 

identified the various inconsistencies in Bautista’s testimony. From there, 

Bautista’s brief to the Board excerpted portions of the administrative hearing 

transcript to argue that he was not inconsistent in his testimony, but rather 

confused and intimidated by DHS counsel’s cross-examination. This briefing

was sufficient to put the Board on notice that Bautista was challenging the judge’s 

adverse credibility decision in its entirety and to give the “administrative agency 

the opportunity to resolve a controversy or correct its own errors before judicial 

intervention.” Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004), abrogated on 

other grounds, Santos-Zacaria, 598 U.S. 411 (2023). Bautista’s general argument 

to the Board attacking the adverse credibility determination allows him to raise 

more specific arguments in this petition for judicial review that challenge all the 

factors cited by the judge in support of her adverse credibility determination. See 

Bare, 975 F.3d at 960–61; see also Figueroa v. Mukasey, 543 F.3d 487, 492 (9th 

Cir. 2008) (issue not waived where Board had “the opportunity to correct its 

error”); Iman, 972 F.3d at 1069 n.2 (rejecting waiver argument); Zhang, 388 F.3d 

at 721 (same).

Bautista’s brief to the Board was not sufficient, however, to put the Board 

on notice that he was challenging the judge’s conclusion that he had failed to 

show he had been persecuted because he was a member of a cognizable, particular 
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social group. A general challenge to a judge’s withholding-only denial without 

any identification of the specific issue is not enough. See Bare, 975 F.3d at 960;

Arsdi, 659 F.3d at 929. Bautista waived challenges to that determination.

We turn now to the merits of the adverse credibility determination as the 

driver of the denial of CAT relief. The immigration judge supported that 

determination by identifying eighteen factors. Sixteen of these eighteen factors 

deserve no weight. For the sake of brevity, we address the problems in groups.

The judge identified seven inconsistencies between Bautista’s testimony 

and other evidence:

(1)Just how violently the police allegedly beat Bautista’s brother in 

May 2015, just before he was “disappeared.”

(2)Whether the police ordered Bautista and his brother to lie down 

at gunpoint during the incident between police and Bautista’s 

brother in May 2015, just before he was “disappeared.”

(3)What the police said to Bautista’s mother when she went to police 

headquarters to report the brother’s disappearance. 

(4)The exact number of times Bautista was threatened or harmed in 

Mexico before fleeing to the United States.

(5)Whether the men who took Bautista’s brother were local police 

or criminals disguised as police.

(6)Whether, during the August 2015 telephone call between 

Bautista and his mother, the hometown police commander 

physically took the telephone from Bautista’s mother to threaten 

to kill Bautista.

(7)How many days Bautista spent in Nogales, Mexico, before 

crossing the border into the United States.
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The first four listed above were not true inconsistencies but simply 

omissions of detail. The judge’s reasoning fixated on minor differences in the 

level of detail of Bautista’s testimony at different stages of the proceedings (e.g., 

written application versus reasonable-fear interview versus administrative 

hearing), as well as in his responses to different questions. Generally, “omissions 

are less probative of credibility than inconsistencies created by direct 

contradictions in evidence and testimony,” Lai v. Holder, 773 F.3d 966, 971 (9th 

Cir. 2014), and “the mere omission of details is insufficient to uphold an adverse 

credibility finding.” Id., quoting Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir.

2005). Further, the judge at least overlooked other evidence in the record that 

seems to explain several of the perceived inconsistencies. See Shrestha, 590 F.3d 

at 1044 (“[I]n evaluating inconsistencies, the relevant circumstances that an IJ 

should consider include the petitioner’s explanation for a perceived inconsistency

and other record evidence that sheds light on whether there is in fact an 

inconsistency at all.” (citation omitted)). This is why a judge may “not cherry 

pick solely facts favoring an adverse credibility determination while ignoring 

facts that undermine that result.” Id. at 1040.

The fifth listed inconsistency was just wrong. The judge said that 

Bautista’s testimony conflicted with his reasonable-fear interview about whether 

the men who “disappeared” his brother were local police or criminals dressed as 

police. There is no conflict. Bautista consistently explained that the police 

suggested to his mother that the men who had “disappeared” his brother were 
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simply criminals dressed as police, but Bautista consistently asserted in his 

interview and his testimony that he recognized some of the men who took his 

brother as members of the local police. AR 466 (reasonable-fear interview 

summary); AR 139, 158 (hearing testimony).

This leaves only two remaining inconsistencies identified by the judge that 

are arguably supported by substantial evidence. The first boils down to whether, 

during the August 2015 telephone call in which the police commander threatened 

to kill Bautista, the police commander did so by physically taking the telephone 

from Bautista’s mother to deliver the threat directly to Bautista, or whether 

Bautista’s mother simply relayed the officer’s words. While a minor discrepancy, 

it could plausibly be viewed as material and thus factor into a credibility 

determination that had other significant anchors and grounds.

The seventh inconsistency appears to be genuine, involving the timing of 

Bautista’s flight to the United States. In his I-589 application, Bautista wrote 

that he had been in Nogales for almost a month before crossing into the United 

States. At the hearing, however, Bautista testified that he had been in Nogales 

only four to five days before entering the United States. The difference between 

a month and several days could reasonably fit into an assessment of credibility, 

and the Board may consider this inconsistency on remand as part of the totality 

of circumstances relevant to credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); 

Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir. 2021).
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To support her adverse credibility determination, the judge also identified

four supposed implausibilities in Bautista’s testimony:

(1) That the mayor of a town would promise homes to local residents 

if they protested federal Mexican authorities entering the town to 

search for wanted drug traffickers.

(2) That the mayor would order residents to protest the arrival of 

federal officials to search for wanted drug traffickers, while also 

ordering local police to search for the same drug traffickers.

(3)That two highly wanted drug traffickers would be living openly 

in Bautista’s hometown.

(4)That, if Bautista really had been threatened by his hometown

police commander, he would have chosen to enter the United 

States illegally as opposed to presenting himself to border 

officials to apply for asylum.

The first implausibility identified by the judge was based on the fact that the 2018 

Mexico Country Report on Human Rights Practices did not mention corruption 

in Bautista’s small hometown or the mayor’s attempts to bribe residents into 

protesting. We would be quite surprised to see such a specific finding in a country 

conditions report. Its absence was not a reasonable basis for the judge’s 

credibility finding. See Singh v. Gonzales, 439 F.3d 1100, 1110 (9th Cir. 2006) 

(“While an IJ may use a Department of State Report to discredit a generalized 

statement about a country, it may not be used to discredit specific testimony 

regarding a petitioner’s experience.”), overruled on other grounds by Maldonado 

v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (en banc). The three remaining 
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implausibilities were based improperly on pure speculation. Shah v. I.N.S., 220 

F.3d 1062, 1071 (9th Cir. 2000).

The judge also identified three instances where she said Bautista’s 

testimony was vague or nonresponsive:

(1)His explanation for how he knew that Mexican federal officials 

and local police searched for the drug cartel leader at that 

individual’s home in May 2015 was nonresponsive.

(2)His explanation for why his brother recorded videos of drug 

traffickers or why the videos would be troublesome was both 

vague and nonresponsive.

(3)His explanation for alleged inconsistencies in his testimony 

surrounding the beating of his brother by police was 

nonresponsive.

The REAL ID Act permits a credibility determination based on the 

“responsiveness of the applicant or witness.” 8 U.S.C. § 1158(b)(1)(B)(iii). But 

such reasoning requires care. “To support an adverse credibility determination 

based on unresponsiveness, the BIA must identify particular instances in the 

record where the petitioner refused to answer questions asked of him.” Shrestha, 

590 F.3d at 1042 (alteration omitted), quoting Singh v. Ashcroft, 301 F.3d 1109, 

1114 (9th Cir. 2002).

The judge did not find that Bautista refused or failed to answer questions 

asked of him. She found instead that he did not respond in the level of detail that 

the judge would have preferred. A negative credibility inference based on lack 

of details is unsupported where a petitioner was not asked for details and declined 
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or was unable to provide them. Iman, 972 F.3d at 1066–67. The judge erred by 

treating his answers as unresponsive simply because he did not anticipate the 

judge’s unexpressed preferences about the right level of detail.

Finally, the judge supported her adverse credibility finding with four 

supposedly speculative answers:

(1)Bautista speculated that the police may have known his brother 

had an incriminating video because they saw him filming the 

operative events on his telephone’s camera.

(2)Bautista speculated about why the local police would want to 

seize the videos on his brother’s phone.

(3)Bautista’s explanation that Mexican federal officials arrived at 

the ranch in May 2015 specifically to search for the drug cartel 

leader because he witnessed local police disguise the drug cartel 

leader and remove him from the ranch in a police vehicle.

(4)Bautista’s assertion that his hometown mayor and a well-known 

drug trafficker had a friendly relationship.

The judge opened her discussion in the “Speculation” section of her 

decision with the maxim that “speculation and conjecture” by an immigration 

judge cannot sustain an adverse credibility finding, citing Jibril v. Gonzales, 423 

F.3d 1129, 1135 (9th Cir. 2005), and Shah, 220 F.3d at 1071. This sound maxim 

says nothing about speculative answers by an applicant supporting an adverse 

credibility determination, especially where Bautista’s supposedly “speculative” 

answers responded to questions from counsel and the judge that clearly called for

speculation. See AR 121–23, 125–26, 151–52. While a judge may base an 

adverse credibility determination on any “relevant factor,” 8 U.S.C. 
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§ 1158(b)(1)(B)(iii), this latitude does not allow a judge to fault an applicant for 

being too responsive to questions asking for speculative answers.

Because sixteen of the eighteen factors the judge relied upon were either 

not supported by the record or were trivial, we grant the petition in part and 

remand for the Board to assess Bautista’s credibility in light of the totality of the 

circumstances. See, e.g., Kumar v. Garland, 18 F.4th at 1155–56 (remanding 

when only two of six grounds for adverse credibility determination were 

supported by record); Barseghyan v. Garland, 39 F.4th at 1143–46 (remanding 

when only one of four grounds for adverse credibility determination was 

supported by record); Alam v. Garland, 11 F.4th 1133, 1134–35, 1137 (9th Cir. 

2021) (en banc) (remanding to three-judge panel when only one of seven grounds 

for adverse credibility determination was supported by record).

In keeping with these precedents, we GRANT Bautista’s petition in part 

and REMAND to the Board to reconsider the issue of Bautista’s credibility for 

purposes of deciding on relief under the Convention Against Torture. In all other 

respects, Bautista’s petition is DENIED.