                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 19a0208n.06

                                                Case No. 18-3624

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                                   FILED
                                                                                            Apr 24, 2019
JACQUELINE      LIZET   NOLASCO-                               )                       DEBORAH S. HUNT, Clerk
GONZALEZ, aka Jacqueline Gonzalez                              )
Nolasco; BRYAN ERNESTO GONZALEZ-                               )
NOLASCO,                                                       )        ON PETITION FOR REVIEW
                                                               )        FROM THE UNITED STATES
         Petitioners,                                          )        BOARD   OF  IMMIGRATION
                                                               )        APPEALS
v.                                                             )
                                                               )
WILLIAM P. BARR, Attorney General,                             )
                                                               )
         Respondent.                                           )


         BEFORE: ROGERS, DONALD, and THAPAR, Circuit Judges.

         THAPAR, Circuit Judge. Jacqueline Nolasco-Gonzalez and her son, Bryan, petition for

review of a Board of Immigration Appeals order denying their applications for asylum,

withholding of removal, and relief under the Convention Against Torture. We deny their petition.

                                                          I.

         When Jacqueline Nolasco-Gonzalez and her son, Bryan, fled El Salvador and illegally

entered the United States, she told a border patrol agent that they were coming to “work and live.”1

A.R. 169. The border patrol agent asked her if she had any fears about returning to El Salvador.




1
 All names are spelled as they appear in Petitioners’ brief. Jacqueline Nolasco-Gonzalez is the lead petitioner in this
case; her son Bryan is a derivative petitioner.
Case No. 18-3624, Nolasco-Gonzalez v. Barr


Nolasco-Gonzalez said no. When asked if she would be harmed if she returned to El Salvador,

Nolasco-Gonzalez again said no.

       But later that year Nolasco-Gonzalez applied for asylum and presented a different story

about repeated rapes and threats by MS-13. She said that a member of MS-13, Edwin Ismail

Dimas Hernandez (“Dimas”), threatened to harm her family if she did not become his “girlfriend.”

A.R. 363, 501. As Dimas’s “girlfriend,” Nolasco-Gonzalez explained that when Dimas went to

prison for killing a police officer, MS-13 forced her to visit him once a month. Each time Dimas

raped her. MS-13 told her she had to continue her visits or else they would kill her mother and

son. After five years, she decided to stop her visits. But this did not go over well, and MS-13 told

her she had to visit Dimas or they would kill her. She chose to flee to the United States with her

son instead.

       After a hearing, the Immigration Judge found that Nolasco-Gonzalez was not credible and

subsequently denied her application for asylum, withholding of removal, and Convention Against

Torture relief. The Board of Immigration Appeals (“Board”) affirmed. Nolasco-Gonzalez now

petitions for review in this court, claiming the Board erred when it affirmed the Immigration

Judge’s denial of her application, which included an adverse credibility determination.

                                                II.

       We review credibility determinations for substantial evidence and must accept them

“unless any reasonable adjudicator would be compelled to conclude to the contrary[.]” 8 U.S.C.

§ 1252(b)(4)(B); see Zhao v. Holder, 569 F.3d 238, 247 (6th Cir. 2009). Two key inconsistencies

in Nolasco-Gonzalez’s asylum claim support the Immigration Judge’s adverse credibility

determination. First, Nolasco-Gonzalez told agents at the border that she did not have any fears

about returning to El Salvador and that she did not expect to be harmed if she did so. Both of those



                                               -2-
Case No. 18-3624, Nolasco-Gonzalez v. Barr


statements directly contradict her later account.      Second, Nolasco-Gonzalez gave varying

descriptions of her relationship with Dimas. At times she said that MS-13 considered her Dimas’s

girlfriend, that Dimas considered her his “girlfriend,” and that Dimas thought that they were in a

voluntary relationship. But at other times, she said Dimas knew their relationship was not

voluntary and instead viewed her as his sex slave. With conflicting statements about her fear of

returning to El Salvador and with inconsistencies in how she described her relationship with

Dimas, the Immigration Judge (and the Board) had substantial evidence to find her not credible.

See Bi Qing Zheng v. Lynch, 819 F.3d 287, 295 (6th Cir. 2016) (upholding adverse credibility

determination when Immigration Judge relied on inconsistent statements).

       Nolasco-Gonzalez says otherwise.        First, Nolasco-Gonzalez argues that the Board

misunderstood the Immigration Judge’s credibility determination. She argues that the Immigration

Judge believed her explanation for her contrary border statements and did not consider them in

making his credibility determination. So she says that the Board erred when it affirmed that

determination based on both Nolasco-Gonzalez’s statements at the border and her statements about

her relationship with Dimas. Yet the Immigration Judge did consider Nolasco-Gonzalez’s border

statements. The Immigration Judge merely said that he understood why such an interview at the

border “might be fraught,” but he did not say that he necessarily believed Nolasco-Gonzalez’s

current narrative. A.R. 76. In fact, in the very next paragraph, the Immigration Judge based his

credibility decision on the entire record—including her border statements. Thus, the Board did

not err in its understanding of the Immigration Judge’s credibility decision.

       Next, Nolasco-Gonzalez tries to explain away her statements at the border. She says that

she did not discuss her fear of Dimas or MS-13 because the border patrol agent was “very hurried

and distracted,” A.R. 381, and she did not understand his Spanish. Further, she “would not have



                                               -3-
Case No. 18-3624, Nolasco-Gonzalez v. Barr


felt comfortable admitting to a strange man about being sexually assaulted, especially with [her]

son sitting next to [her.]” Id. Such explanations are definitely plausible. But immigration judges

need not accept every plausible explanation for inconsistent statements. See Moreno v. Sessions,

694 F. App’x 391, 397 (6th Cir. 2017); Matter of D-R-, 25 I. & N. Dec. 445, 455 (BIA 2011)

(citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)).            Nor are plausible

explanations enough on appeal to overcome an adverse credibility determination. Shkabari v.

Gonzales, 427 F.3d 324, 330 (6th Cir. 2005). Instead, Nolasco-Gonzalez must show that the

Immigration Judge’s contrary interpretation of the evidence was unreasonable. Id. She cannot do

this by merely pointing out an alternative plausible interpretation.

       The same can be said for Nolasco-Gonzalez’s arguments surrounding her statements about

Dimas. Nolasco-Gonzalez would have us construe the “ambiguity” in the word “relationship” in

her favor or read the word “girlfriend” with an acknowledgement that it could have been

imprecisely translated. Pet’r Br. 15, 17. But even if we did so, all we would be left with is another

plausible reading of Nolasco-Gonzalez’s words. Two stories would emerge from the record. But

when there are two plausible stories on a cold record, the substantial evidence standard demands

that we uphold the Board’s findings. Shkabari, 427 F.3d at 330; see Anderson, 470 U.S. at 574

(“Where there are two permissible views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous.”); see also Yongbo Yao v. Sessions, 745 F. App’x 396, 398 (2d Cir.

2018) (holding that adverse credibility determination was supported by substantial evidence when

Immigration Judge chose between two plausible views of the evidence); Estrada-Martinez v.

Lynch, 809 F.3d 886, 895 n.5 (7th Cir. 2015).

       This rule makes sense. Courts often consider the context of words and the appropriate

meaning of ambiguous terms. As a court of appeals, this is one of our core competencies. But



                                                -4-
Case No. 18-3624, Nolasco-Gonzalez v. Barr


that core competency is far different from determining the meaning and trustworthiness of witness

testimony. The fact-finders in our judicial system, by contrast, do this all the time. It is their core

competency. And here, the Immigration Judge who heard the witnesses testify is in a better

position to judge those witnesses’ credibility. Only the fact-finder “can be aware of the variations

in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in

what is said.” Anderson, 470 U.S. at 575. Indeed, the very things Nolasco-Gonzalez would have

us extract from the cold record—possible ambiguities in how a word was used or possible nuances

lost in translation—are the very cues from a person’s statements that are often “lost on an appellate

court sifting through a paper record.” Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017). For

instance, if Nolasco-Gonzalez misunderstood an ambiguous statement, her demeanor or tone may

have changed. Or if the translator imprecisely translated her testimony, she might have displayed

signs of frustration on the stand. But with the cold record as it is, all we can do is speculate. Such

speculation does not compel overturning the Board’s decision. Cf. Marouf v. Lynch, 811 F.3d 174,

183 (6th Cir. 2016) (holding that translation errors may undermine an adverse credibility

determination when there is more than speculation, i.e., both a “strong indication” of translation

errors and “extensive” corroboration).

       Accordingly, the Immigration Judge’s adverse credibility determination is supported by

substantial evidence.

                                                 III.

       Because the Immigration Judge (and the Board) found that Nolasco-Gonzalez was not

credible, they held that she could not meet her burden for asylum, withholding of removal, or




                                                 -5-
Case No. 18-3624, Nolasco-Gonzalez v. Barr


Convention Against Torture relief. We review these findings also for substantial evidence. Zhao,

569 F.3d at 247.

       We begin with Nolasco-Gonzalez’s asylum claim. The Attorney General may grant

asylum to an applicant who proves she is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A refugee is

“a person who is unable or unwilling to return to her home country because of past persecution or

a well-founded fear of future persecution on account of [a protected ground].” Umana-Ramos v.

Holder, 724 F.3d 667, 670 (6th Cir. 2013) (quoting 8 U.S.C § 1101(a)(42)) (internal quotation

marks omitted). The principal evidence in the record about Nolasco-Gonzalez’s persecution was

her own testimony, and since she was found not credible, her testimony was insufficient to prove

either past persecution or a well-founded fear of future persecution. See Pilica v. Ashcroft,

388 F.3d 941, 954–55 (6th Cir. 2004).

       Sometimes corroborating evidence may rehabilitate non-credible testimony like Nolasco-

Gonzalez’s. See Marikasi v. Lynch, 840 F.3d 281, 289 (6th Cir. 2016). Nolasco-Gonzalez tries to

do that here with two short, cursory declarations. The two declarations are from her cousin and

her husband. While both reiterate Nolasco-Gonzalez’s story, neither appears to be based on

personal knowledge—particularly the one from her husband, who was living in the United States

and thus far removed from the events that Nolasco-Gonzalez described. Accordingly, these

declarations are not enough to rehabilitate Nolasco-Gonzalez’s non-credible testimony and make

the Immigration Judge’s adverse credibility finding unreasonable. Cf. Moreno, 694 F. App’x at

397–98 & n.2 (stating that an Immigration Judge did not act unreasonably by discounting

statements “not based on personal knowledge”). Without evidence of persecution, Nolasco-

Gonzalez’s asylum claim fails.




                                              -6-
Case No. 18-3624, Nolasco-Gonzalez v. Barr


          Since Nolasco-Gonzalez’s asylum claim fails, she cannot meet the higher standard for

withholding of removal. Wang v. Lynch, 824 F.3d 587, 593 (6th Cir. 2016). Similarly, if an

applicant fails to satisfy the threshold showing of credibility required for withholding of removal,

then she is not entitled to Convention Against Torture relief when that relief rests on the same

grounds. Zhao, 569 F.3d at 249. Here, Nolasco-Gonzalez bases her withholding of removal and

Convention Against Torture claims on the same ground: Dimas’s alleged conduct. Thus, Nolasco-

Gonzalez cannot meet her burden. See Bi Qing Zheng, 819 F.3d at 295–96.

                                          *       *      *

          An Immigration Judge viewing Nolasco-Gonzalez’s testimony firsthand found that she was

not credible. Since the record supports the Immigration Judge’s finding, we deny the petition for

review.




                                               -7-
