N O T PRECEDENTIAL

UNITED STATES COURT OF APPE ALS FOR THE THIRD CIRCUIT

___________ No. 2 0

- 1 3 9 6

___________ ALFREDO RODRIGUEZ GUERRA, Petitioner

v.
ATTORNEY GENERAL UNITED STATES OF AMERICA

____________________________________ On Petit ion f

or Review o f an Order of the Board of Immigration Appe als (Agency No. A203

- 579

- 477 ) Immigrat ion Judge: Joseph T . Leonard

______________________________ ______ Submitted Pursuant to Third Circuit LAR 34.1(a)

S e p t e m b e r 2 3 , 2 0 2 0 Before: K R

A U S E , M A T E Y , a n d R O T H , Circuit Judges (Opinion filed : February 4, 2021 )

___ _ ___ ____ OPINION *

___________ PER CURIAM

* This disposition is not an o pinion of the full C o urt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Pro se petitioner Alfredo Rodriguez Gu erra petitions for review of a final order of

removal. For the reasons detailed below, w e will d e n y t h e p e t i t i o n

. Rodrigu ez G

uerra is a citizen of Cuba

. In 2019, he left C u ba and presented

himself to Border Patro l officials in Te xas

. The D epartment of Homeland Security charged him with being inadmissible because he did not have a valid entry document

. S ee 8 U.S.C. § 1182( a)(7 )(A)(i)(I)

. A n asylum officer determined tha t h e p o ssessed a credible fear of persecution in Cuba, the c ase was transferred to a n I mmigration Judge (IJ), and he filed an application for asylum , withholding of removal, and relief under the

Convent ion A gain st Torture (CAT ).

At a hearing before the IJ, R odr iguez Guerra testified in suppor t of his applications

. He alleged that he had been arrested and beaten in Cuba on account of his political opinions . The IJ denie d relief, concluding that Rodriguez Gu erra ha d not testified credibly. Rodriguez Guerra a ppe aled, and the Board of Im migration Appeals (BIA) affi rmed the IJ ’s credibility determination. 1

We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). I n cases like this one , whe re “ o u r C o u r t is called to evaluate an IJ’s

cre dibility determination that has been adopted by the BIA, w e d o so with excepti onal

de ference

. ” Alimbaev v. Att ’ y Gen

. , 872 F.3d 188, 196 (3d Cir. 2017) ; see also 8 U.S.C.

1 As an alternative ground, the IJ determined t hat the h arm Ro driguez Guerra claimed to have suffer e d in the past did not rise to the le vel of persecution, but t he B IA did not rely on th at ground , so it i s not before us

. See Li v. Att’y Gen. , 400 F.3d 157, 16 3 (3d Cir.3

§ 1252(b)(4)(B) (stating that the Court must up hold the agency ’s credibi l ity

d et e rmi nation “ unle ss any reasonable adjudicator would be compelled to conclude to th e contrary ” ).

W e c o n c l u d e t h a t t h e a g e n c y ’ s c r e d i b i l i t y d e t e r m i n a t i o n w a s r e a s o n a b l e

. A s the

BIA obser v ed, Rodriguez G uerr a te stified inconsistently about his encounters wit h

a u t h o r i t i e s

. In his credible

- fear interview, he stated that , “ [i]n total, ” he had be en

t hreatened twice in Cuba, on Decembe r 5, 2018, and February 23, 2019. A.R. at 305. On
the first oc c asion, he stat e d, he was fired f rom hi s job because he h ad expres s ed anti

government sentiments and refused to attend political meetings ; he did not spe ak to police that day

. See A.R

. at 307. On the second occasion, he was tak en to the police

station , h e ld overnight, t hre atened, and struck o n the head with a baton. S e e A

. R. at 307

–
08.

W hen Rodriguez Guerra testified before the IJ, his acco unt was different

. He first explained that his opposition to the Cuban government began tow a r d the end of

No vember 20 18 when the cou ntry ’ s new constitution was created

. See A.R. a t 1 48.

W ithout explanation f

o r t h e a p p a r e n t t i m i n g discrepancy , he then testified that he was

summone d by the police on September 23, 2018 , and detained all day

. See A.R. at 151,

153

– 54

. He t he n testif

ied tha t “ the n ext time something happe ne d ” was Febr uar y 23,
2019. A.R. at 155. The IJ asked Rodriguez Guerra if he had had any encounter s with

2005)

.4

police b esides these two instances, and he answered “ no. ” A.R. at 157. At the very end

of his test im ony, how ever , R odriguez Guerra added t hat on De ce mbe r 5, 201 8, the director of his compan y told him that he was going to i nform the police about Rodriguez

Guerra ’ s anti

- government activity. See A.R. at 164 . The IJ asked wh y Rodriguez Guerra

had not men ti oned thi s ea rli er, and he said he remembe red th e other two d ate s the most.

S e e A

. R

. a t 1 6 5

. On cross

- examination, however , he adde d that on Decembe r 5, 2018, he

w ent to the polic e station , where he was threatened, interrog ated , and held almost all day.

See A. R. a t 17 2

– 7 3

. Thus, as the BIA stated, th ere are imp ort ant inconsistencies in Rodriguez Guerra ’ s statements. First, in his credible

- fear interview, he did not mention the Sep tember 23,

2018 incident

. Since this incident was important to his c laim , it was rea sonable for the BIA to have expecte d him to r a i s e i t. See Xie v. Ashcroft , 359 F.3d 239, 243 (3d Cir. 2004); Dia v. Ashcroft , 353 F.3d 228, 249 (3d Cir. 2003) (en banc)

. Moreover, at his

cre dible

- fear interview, Rodriguez Guerra discussed two inciden ts, the first of which was being fired on Decembe r 5 , 2 018. He said t h a t he did not speak to police th at day. Meanwhile, when he testified before the IJ, he initially did not r e f e r t o the D ecember 5,
2018 in c id e nt at all

. During cross

- examination, howev er, he claimed that he had been

detaine d by po lice o n D ecem ber 5. Again, this is something that he could have been expected to m ention on direct examination and i n his credible

- f ear interview

. Rodriguez Guerra a r g u e s t h a t t h e a g e n c y improperly relied on his credible

- fear5

interview in making an adve rse cr edi bility determination

. W e h a v e d i s c o u n t e d

s t a t e m e n t s f

r o m s u c h i n t e r v i e w s w h e n t h e r e w a s a s p e c i f i c r e a s o n t o v i e w t h e i n t e r v i e w

a s u n r e l i a b l e

. S e e Fiadjoe v. Att ’ y Gen. , 411 F.3d 135, 159 (3d Cir. 20 05) ( s o c o n c l u d i n g

w h e r e t h e a l i e n w a s i n a s t a t e o f s h o c k a t t h e t i m e o f t h e i n t e r v i e w a n d w a s “ unable to discuss the shameful and taboo incidents of incestuous rape ” i n f r o n t o f a m a l e
i n t e r v i e w e r ) ; Korytnyuk v. Ashcroft , 396 F.3d 272, 290 (3d Cir. 2005) ( s o c o n c l u d i n g

w h e n t h e r e c o r d d i d n o t c o n t a i n a c o p y o f t h e i n t e r v i e w )

. T h o s e t y p e s o f c o n c e r n s a r e n o t

p r e s e n t h e r e : t h e r e c o r d c o n t a i n s a t r a n s c r i p t o f t h e interview , s e e A

. R

. a t 3 0 0

– 1 3 ; Rodriguez Guerra t e s t i f

i e d t h a t h e h a d n o p r o b l e m s c o m m u n i c a t i n g w i t h t h e a s y l u m

o f f i c e r , s e e A

. R

. a t 1 8 1 ; a n d t h e r e i s n o i n d i c a t i o n t h a t t h e i n t e r v i e w w a s h o s t i l e o r u n f a i r

. T h e r e f o r e , w e c o n c l u d e t h a t t h e B I A d i d n o t e r r i n r e l y i n g o n i n c o n s i s t e n c i e s b e t w e e n t h e

a n s w e r s Rodriguez Guerra p r o v i d e d i n t h i s i n t e r v i e w a n d a t t h e h e a r i n g

. S e e g e n e r a l l y
He Chun Chen v. As hcr oft , 376 F.3d 215, 224 (3d Cir. 2004)

. Rodriguez Guerra h a s t h u s f a i l e d t o s h o w t h a t “ any reasonable adjudicator would be compelled to conclude ” that h e was credibl e. 8 U.S.C. § 1252(b)(4)(B)

. 2 This

cred ibility determination is disposit ive of ea ch of Rod riguez Guerra ’ s applications. See
Dia , 353 F.3d at 2 47 ; see also Zheng v. Gonzales , 417 F. 3d 379, 383 (3d Cir. 2005)

.

2 It was also reasonabl e for t he BIA t o conclude that Rodriguez Guerra ’ s corroborating evidence , although generally supportive of his cla ims, was not so persuasive as to rehabil itate Rodriguez Guerra ’ s in consistent testimony or independently establish an6

A c c o r d i n g l y , we will d e n y the petition for review

.

entitle ment to relief.