Jorge Perez-Rojas v. Jefferson Sessions
685 F. App'x 575
| 9th Cir. | 2017Background
- Petitioner Jorge Perez-Rojas, a Peruvian national and former low‑rank soldier, seeks review of a 2014 removal order denying adjustment of status based on inadmissibility under the INA torture bar (INA § 212(a)(3)(E)(iii)).
- The IJ in 2012 found Perez‑Rojas credible on earlier testimony (2001) that he committed acts of torture while serving in the Peruvian military and concluded he was barred from adjustment; in 2012 the IJ later found his 2012 testimony not credible and relied on the 2001 testimony.
- The BIA adopted and affirmed the IJ’s adverse credibility finding for the 2012 testimony and the resulting conclusion that Perez‑Rojas was inadmissible under the torture bar.
- Perez‑Rojas argued the IJ relied on inconsistencies that were not central to his claim and failed adequately to consider his explanation for inconsistencies concerning whether he personally committed torture.
- The Ninth Circuit affirmed the adverse credibility finding as supported by substantial evidence but remanded to the BIA to decide, in the first instance, whether a coercion/duress exception to the torture bar exists and, if so, whether it applies to Perez‑Rojas.
- The court rejected the government’s exhaustion argument, finding Perez‑Rojas raised the coercion/duress issue before the BIA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse credibility of 2012 testimony | Perez‑Rojas: inconsistencies did not go to the heart of his adjustment claim and IJ failed to address his explanation | Government/BIA: inconsistencies were material and IJ/BIA sufficiently addressed explanations | Court: Affirmed adverse credibility; substantial evidence supported IJ/BIA findings |
| Existence of coercion/duress exception to the torture bar | Perez‑Rojas: Negusie reasoning supports a voluntariness exception where conduct was coerced or under duress | Government: issue not exhausted before BIA; no such exception | Court: Rejected exhaustion argument; remanded to BIA to decide whether a coercion/duress exception to the torture bar exists and, if so, whether it applies to Perez‑Rojas |
| Use of 2001 credible testimony after 2012 finding | Perez‑Rojas: 2001 testimony showed he was coerced and would face death/imprisonment for refusal | Government: relied on 2001 testimony to find torture acts committed | Court: Because 2001 testimony was previously found credible, BIA must consider voluntariness exception on remand; may remand to IJ for further factfinding if needed |
Key Cases Cited
- Negusie v. Holder, 555 U.S. 511 (2009) (Supreme Court remand to BIA to consider voluntariness/coercion when applying persecutor bar)
- Soto‑Olarte v. Holder, 555 F.3d 1089 (9th Cir.) (standard of review for credibility findings)
- Bassene v. Holder, 737 F.3d 530 (9th Cir.) (substantial evidence and adverse credibility standard)
- Kaur v. Ashcroft, 379 F.3d 876 (9th Cir.) (IJ must address petitioner’s explanations for inconsistencies)
- Li v. Ashcroft, 378 F.3d 959 (9th Cir.) (inconsistencies must go to the heart of the claim to sustain adverse credibility)