NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
V.M., Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 20

- 72563 Agency No. A074

- 378

- 938

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 19, 2022 Portland, Oregon Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW, * * District Judge.
V.M. 1 , a native and citizen of Mexico, petitions for review of the o rder of the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation.

1 We grant the remainder of V.M.’s unopposed motion to proceed under a pseudonym and refer to petitioner by his pseudonym in this disposition. 

# FILED

MAY 11 2023 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 the Immigration Judge (IJ) denying his application for protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.

“ We review [ the agency’s ] factual findings, including adverse credibility determinations, for substantial evidence. ” Iman v. Barr , 972 F.3d 1058 , 1064 (9th Cir. 2020). Under th is standard, “ [ t ] he agency’s findings of fact ‘ are conclusive unless any reasonable adjudi cator would be compelled to conclude to the contrary

. ’ ” Silva

- Pereira v. Lynch , 827 F.3d 1176, 1184 (9th Cir. 2016) (quoting 8 U.S.C. § 1252(b)(4)(B))

. We deny the petition for review.
1. Substantial evidence supports the adverse credibility determination. When assessing an adverse credibility determination, we look to the “totality of the circumstances[] and all relevant factors.” Alam v. Garland , 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc) (alteration in original) (quoting 8 U.S.C. § 115 8(b)(1)(B)(iii)). “[ I ] n some circumstances, our ‘ totality of circumstances ’ review of the BIA’s determination permits us to uphold an adverse credibility finding, even where we conclude that some of the grounds are not supported by substantial evidence.” Kumar v. Garland , 18 F.4th 1148, 1156 (9th Cir. 2021). Here, n ot all the BIA’s findings are supported by substantial evidence . T he
agency failed to consider V.M.’s mental illness as an explanation for the seeming implausibility of the statements he gave at the border in June 2015 and August
2015 , and found that V.M. testified inconsistently about the number of times he3 transported drugs based on statements he made at a competency hearing. See Shrestha v. Holder , 590 F.3d 1034, 1043

– 44 (9th Cir. 2010 (explaining an IJ must consider the “totality of the circumstances” and “all relevant factors” when determining credibilit y (quotation omitted) ); Matter of J

- R

- R

- A

- , 26 I. & N. Dec. 609, 611 (B.I.A. 2015) (noting that where an individual has been diagnosed with a mental illness, “the factors that would otherwise point to a lack of honesty in a witness . . . may be reflective of a mental illness or disability, rather than an attempt to deceive the [IJ]”)

. However, other findings that are supported by substantial evidence suffice to support the adverse credibility determination. First , the BIA agreed with the IJ that V.M.’s i mplausible testimony about his tattoos supported the adverse credibility determination. V.M. gave himself more tattoos while in immigration detention, despite contending that having too many tattoos made him a target in Mexico. S ee Jie Cui v. Holder , 712 F.3d 1332, 1337 (9th Cir. 2013) (actions inconsistent with p etitioner’s claim for asylum supported adverse credibility determination). The agency also found it implausible that V.M. did not know several of his tattoos had any affiliation with gangs because he obtained those tattoos while in prison with gangs. T he agency noted V.M.’s ignorance was even more implausible given that he engaged in “gang

- like behavior” while in immigration detention. Substantial evidence supports the agency’s finding th at this evidence undermined V.M.’s credibility.4 Second , the agency considered V.M.’s history demonstrating a “willingness and ability to provide inaccurate and dishonest information for his own benefit.” The agency referenced V.M.’s past use of aliases, possession of a fraudulent lawful permanent resident card, and false claim of United States citizenship to immigration officials. The agency also cited incidents in immigration detention in which V.M. denied committing misconduct and attempted to explain his behavior, but his version of events w as contradicted by other evidence. Th ese finding s are supported by substantial evidence and properly support the adverse credibility determination. See Don v. Gonzales , 476 F.3d 738, 741 n.5 (9th Cir. 2007) (“Admi ssion of prior dishonesty can support an adverse credibility determination.”).
2. Substantial evidence supports the denial of CAT relief. To be eligible for
CAT relief , an applicant must show t hat he will more likely than not be tortured with the consent or acquiescence of a public official if removed to the proposed country of removal. Xochihua

- Jaimes v. Barr , 962 F.3d 1175, 1183 (9th Cir. 2020). Because of the adverse credibility determination, V.M .’s CAT claim could rely only on the independent record evidence. See Udo v. Garland , 32 F.4th 1198, 1202 (9th Cir. 2022). The BIA did not erroneously affirm the IJ’s “unexplained reversal of prior factual findings” that V.M. was harmed

. W hen remandin g, the BIA did not5 expressly retain jurisdiction, so the IJ was free to reconsider her previous findings. Bermudez

- Ariza v. Sessions , 893 F.3d 685, 686 (9th Cir. 2018). Further, the BIA did not err in affirming the IJ’s findings. Although independent ev idence show ed that V.M. was detained in a Mexican prison wh en federal officers beat hundreds of detainees to repress gang violence at that facility , a reasonable adjudicator would not be “compelled to conclude” that V.M. was tortured in this incident because of his tattoos

. Silva

- Pereira , 827 F.3d at 1184 (quoting 8 U.S.C. § 1252(b)(4)(B))

. The agency also considered the country conditions evidence and expert testimony that V.M. would be tortured if removed to Mexico

. The IJ conside red the expert’s testimony but disagreed with his conclusion on the ultimate issue. She was entitled to do so , and the refore the BIA did not err in upholding that finding. See Aguilar

- Romas v. Holder , 594 F.3d 701, 706 n.7 (9th Cir. 2010). Further, the IJ’s statement that it is not proper for a witness to testify about a question of law is technically correct. See United States v. Diaz , 876 F.3d 1194, 1197 (9th Cir. 2017) . Moreover, the IJ allowed expert testimony on the chances of V.M. being tortured, and the IJ gave reasons , which were upheld by the BIA, explaining why that testimony was insufficient to establish that V.M. would more likely than not be tortured if returned to Mexico

. Finally, the agency did not mis apply Matter of J

- F

- F

- , 23 I. & N. Dec. 9126 (A.G. 2006), or fail to consider the aggregate risk of torture from all sources. We have stated that the agency cannot “recast” a petitioner’s “ substantiated evidence ” as “speculative ‘suppositions’” and fail to give it “due consider ation .” See Haile v. Holder , 658 F.3d 1122, 1131

– 3 3 (9th Cir. 2011) . Here, however, the agency gave due consideration to all the evidence

. The agency properly assessed “the total probability” that V.M. wou ld be tortured and considered “all potential sou rces of and reasons for torture

. ” Velasquez

- Samayoa v. Garland , 49 F.4th 1149, 1154 (9th Cir. 2022). The IJ found that V.M. faced “some risk of future torture , ” but concluded that the “aggregate risk of future torture from all sources” did not meet the m ore likely than not threshold. The BIA did not err in concluding that the IJ “thoroughly considered the evidence of record” and “considered all possible sources of harm.”
PETITION FOR REVIEW DENIED. 2

2 V.M.’s motion for a stay of removal is denied. The temporary stay of removal is terminated.