                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0519n.06

                                          No. 14-3646
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                          Jul 22, 2015
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk



ALVARO LOPEZ-SALGADO,                            )
                                                 )
           Petitioner,                           )         ON PETITION FOR REVIEW
                                                 )         OF AN ORDER OF THE
v.                                               )         BOARD OF IMMIGRATION
                                                 )         APPEALS
LORETTA LYNCH, Attorney General,                 )
                                                 )
                                                                    OPINION
           Respondent.                           )
                                                 )


BEFORE: BOGGS and MOORE, Circuit Judges, and REEVES, District Judge.*

       KAREN NELSON MOORE, Circuit Judge.                    Alvaro Lopez-Salgado, a Mexican

citizen, entered the United States without authorization in the early 2000s. He was served with a

Notice to Appear in October 2010. During a hearing before an Immigration Judge (“IJ”), Lopez-

Salgado conceded removability, declined to designate a country for removal, and requested as

relief withholding of removal or, in the alternative, voluntary departure. The IJ granted Lopez-

Salgado’s request for time to prepare and file an application for withholding of removal.

       After reviewing Lopez-Salgado’s application, the IJ issued an oral decision finding that

Lopez-Salgado had “lied about the essence of his claim” and was not credible. The IJ denied

Lopez-Salgado withholding of removal and voluntary departure. The Board of Immigration



       *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 14-3646
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Appeals (“BIA”) affirmed this decision on appeal. For the reasons discussed below, we DENY

Lopez-Salgado’s petition for review.

                                       I. BACKGROUND

       Alvaro Lopez-Salgado entered the United States in the early 2000s. C.A.R. at 170 (IJ

Hr’g Tr. at 29). Since that time, he has been living in Detroit, Michigan. Id. at 126 (IJ Dec. at

10). His parents and three sisters also live in Detroit; none have legal status. Id. at 178–79 (IJ

Hr’g Tr. at 37–38). He has legal custody of his two daughters; their mother is a United States

citizen, but she and Lopez-Salgado never married and are no longer together. Id. at 181–82 (IJ

Hr’g Tr. at 40–41). Lopez-Salgado was served with a Notice to Appear on October 11, 2010.

Id. at 118 (IJ Dec. at 2). Lopez-Salgado conceded removability, declined to designate a country

for removal, and requested as relief withholding of removal or, in the alternative, voluntary

departure. Id. at 160 (IJ Hr’g Tr. at 20). The IJ granted Lopez-Salgado 90 days to prepare and

file his withholding application, and scheduled a merits hearing for September 24, 2012.

       At this hearing, Lopez-Salgado testified that he had been threatened twice, in 1999 and

2001, by a man named Edgar, who was a member of a wealthy Chiapas family. Id. at 172–75 (IJ

Hr’g Tr. at 31–34). Edgar accused Lopez-Salgado of sexually harassing one of Lopez-Salgado’s

family members. Lopez-Salgado stated in his application that he was accused of harassing one

family member. During his hearing, Lopez-Salgado initially stated that he had been accused of

harassing his aunt, but later changed his story and stated that he was accused of harassing his

female cousin as well. Id. at 172, 215 (IJ Hr’g Tr. at 31, 74). Lopez-Salgado stated that he and



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Edgar had fought, but that he did not contact the police because of the influence of Edgar’s

family in Chiapas. Id. at 174–76 (IJ Hr’g Tr. at 33–35). Lopez-Salgado told his father about the

threats from Edgar, and his father advised him to come to the United States. Id. at 177–78 (IJ

Hr’g Tr. at 36–37).

       Lopez-Salgado then testified that, once he was in the United States, he was threatened in

2009 by a man from Chiapas, Rigoberto, who Lopez-Salgado believed had ties to Edgar’s

family. Id. at 182–85; 202 (IJ Hr’g Tr. at 41–44, 61). Rigoberto was deported back to Mexico

prior to 2012, and Lopez-Salgado testified that he was afraid of Rigoberto if he were also to be

deported back to Mexico. Id. at 187 (IJ Hr’g Tr. at 46).

       Lopez-Salgado is the father of two daughters, who were born in the United States in 2005

and 2006. He did not marry their mother, Yesenia Perez, a United States citizen, although they

lived together for about four years. Id. at 179–80 (IJ Hr’g Tr. at 38–39). Lopez-Salgado testified

that Perez was a threatening person and that she abused drugs; at the time of the hearing, Lopez-

Salgado had sole physical custody of his daughters. Id. at 181 (IJ Hr’g Tr. at 40). He testified to

the IJ that, if removed, he would bring his daughters to Mexico with him, and that he was

worried about their wellbeing in Mexico. Id. at 189–91 (IJ Hr’g Tr. at 48–50). He requested

withholding of removal based on his membership in the particular social group of “Mexican

citizens, returning to Mexico with their U.S. citizen children, who have spent the recent years in

the United States and are considered foreigners in Mexico.”         Id. at 228 (Exh. 4). In the




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alternative, he requested voluntary departure. In April 2013, after the hearing, Lopez-Salgado

was awarded sole legal custody. Id. at 27 (Mot. to Remand Exh. A. at 1).

        The IJ denied Lopez-Salgado’s request for voluntary departure and for withholding of

removal. The IJ found that Lopez-Salgado was not credible, and that he had lied about key

portions of his claim in an attempt to qualify for withholding of removal. Id. at 120–21 (IJ Dec.

at 4–5). The IJ cited numerous inconsistences in Lopez-Salgado’s testimony, including the dates

that he left Chiapas and entered the United States; his high school graduation year; the timeline

of when his three sisters came to the United States; and the threats he received from Edgar and

Rigoberto. Id. at 128–35 (IJ Dec. at 12–19). Additionally, the IJ found “specifically that the

respondent would not take his children back to Mexico.” Id. at 133 (IJ Dec. at 17). Lopez-

Salgado testified that his sisters and parents were familiar with the problems he had in Mexico,

but none of his family members testified at his hearing or provided sworn or unsworn statements

of support. Id. at 126–27 (IJ Dec. at 10–11). The IJ also found that, “because [Lopez-Salgado]

lied in order to try to get withholding of removal, he ipso facto cannot demonstrate his good

moral character for the last five years” and thus would be ineligible for voluntary departure. Id.

at 121 (IJ Dec. at 5).

        Lopez-Salgado appealed the IJ’s decision to the BIA and asked that his case be heard by

a three-member panel. Id. at 46–47 (BIA Br. at 2–3). In his BIA brief, Lopez-Salgado requested

that the BIA vacate the IJ’s finding of “bad moral character”; reverse the IJ’s finding that he

would not take his children with him to Mexico; grant him withholding of removal or voluntary



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departure; remand the case and require the IJ to provide notice and an opportunity to provide

corroborating evidence; and find that Lopez-Salgado did suffer persecution on account of a

protected ground. Id. at 66 (BIA Br. at 22). On February 3, 2014, Lopez-Salgado filed a motion

to remand on the basis of new evidence—the fact that he had been awarded sole legal custody of

his daughters. Id. at 19 (Mot. to Remand at 2).

       The BIA issued its decision on June 5, 2014, dismissing Lopez-Salgado’s appeal and

denying his motion to remand. Id. at 3–7 (BIA Dec. at 1–4). The BIA found that the IJ’s

credibility determination was based on “specific and cogent reasons” and therefore was not

clearly erroneous. Id. at 3–4 (BIA Dec. at 1–2). The BIA also agreed with the IJ that Lopez-

Salgado had not established eligibility for voluntary departure, because “false testimony for the

purpose of obtaining any benefits under [the Immigration and Nationality Act (“INA”)]”

precluded a finding of good moral character, a prerequisite for voluntary departure. Id. at 6 (BIA

Dec. at 4). Finally, the BIA found that the issue of child custody was not central to this case, and

that the motion to remand was properly denied.

                                         II. ANALYSIS

A. Standard of Review

       “Where the BIA reviews the immigration judge’s decision and issues a separate opinion,

rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision

as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).

However, “[t]o the extent the BIA adopted the immigration judge’s reasoning,” we “also



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review[] the immigration judge’s decision.” Id. We review legal conclusions made by the BIA

and the IJ de novo, giving “substantial deference” to their “interpretation of the INA and

accompanying regulations,” and review their factual findings for substantial evidence. Urbina-

Mejia v. Holder, 597 F.3d 360, 364 (6th Cir. 2010). Credibility determinations are reviewed for

substantial evidence. Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir. 2012). “We cannot

reverse such [factual] findings simply because we would have decided them differently.”

Urbina-Mejia, 597 F.3d at 364. Rather, these findings are “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

B. The BIA’s and IJ’s Adverse Credibility Finding Was Not Clearly Erroneous

       The IJ may:

       base a credibility determination on the demeanor, candor, or responsiveness of the
       applicant . . . [,] the inherent plausibility of the applicant’s . . . account, the
       consistency between the applicant’s . . . written and oral statements . . . [,] the
       internal consistency of each such statement, the consistency of such statements
       with other evidence of record . . . [,] and any inaccuracies or falsehoods in such
       statements, without regard to whether an inconsistency, inaccuracy, or falsehood
       goes to the heart of the applicant’s claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii). “An adverse credibility determination is fatal to claims for asylum

and relief from removal, preventing such claims from being considered on their merits.” Slyusar

v. Holder, 740 F.3d 1068, 1072 (6th Cir. 2014).

       Here, Lopez-Salgado makes three arguments related to his credibility. First, he argues

that the IJ erred by finding him not credible, since the sole alleged inconsistencies in his

testimony were related to “dates of events . . . which occurred over a decade ago.” Pet’r Br. at


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31. Second, he contends that the IJ relied on this erroneous credibility finding to find him

lacking in good moral character and thus ineligible for voluntary departure. Id. at 35–36. Third,

he argues that the BIA erred by not remanding the case to the IJ for additional fact-finding. Id. at

38–42. These arguments fail.

       Lopez-Salgado first contends that many of the inconsistencies between his application

and his testimony are the result of omissions in his application, rather than evidence of deliberate

falsehoods. Additionally, he cites an opinion from this court to support the proposition that “the

limited space provided by the initial application makes the mere omission of some of these

incidents not only insignificant, but expected.” Id. at 34 (citing Ileana v. INS, 106 F. App’x 349,

357 (6th Cir. 2004)). These claims are off the mark. The IJ’s and BIA’s findings were not based

on mere omissions or insignificant discrepancies, but misstatements that went to many aspects of

Lopez-Salgado’s case.     The BIA took note of the fact that Lopez-Salgado had provided

inconsistent information on when he had left Mexico and when the rest of his family had

immigrated to the United States. C.A.R. at 4 (BIA Dec. at 2). The IJ also recounted how Lopez-

Salgado could “not keep his story straight” regarding why he left Mexico. Id. at 130–31 (IJ Dec.

at 14–15). In fact, Lopez-Salgado appeared to make up a person’s name (Edgar) out of whole

cloth—he did not name Edgar in his application for withholding of removal. These are not

trivial inconsistencies. They indicate an inability to recount a consistent narrative about why

Lopez-Salgado came to the United States, when he came, who he came with, and why he should




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not be removed. These inconsistencies provide substantial evidence to support the IJ’s and

BIA’s adverse credibility finding.

       Next, Lopez-Salgado argues that the IJ relied on an erroneous adverse credibility finding

in order to deny him voluntary departure. We have already made clear that the IJ’s adverse

credibility determination—i.e., that Lopez-Salgado lied about essential aspects of his claim—

was supported by substantial evidence. Only individuals found to have good moral character

may be granted voluntary departure. “One of the seven specific categories of aliens precluded

from establishing good moral character is an alien ‘who has given false testimony for the

purpose of obtaining any benefits under this Act.’” In re Ortega-Cabrera, 23 I. & N. Dec. 793,

796 (BIA 2005) (quoting 8 U.S.C. § 1101(f)(6)). “We find that Congress intended this category

to include an alien who testifies falsely with the intent to obtain an immigration benefit at the

proceeding in which good moral character is a requirement for relief.” Id. Lopez-Salgado fits

within this group: the IJ found that he had lied in an attempt to receive withholding of removal,

a benefit under the INA.

       Lopez-Salgado’s third argument, that the BIA erred in denying his motion for remand on

the basis of new evidence that he was granted sole custody of his children, is likewise

unpersuasive. The BIA noted that the IJ’s adverse credibility determination was largely not

based on evidence related to Lopez-Salgado’s custody arrangement, and thus the new evidence

did not challenge the IJ’s credibility determination. C.A.R. at 6 (BIA Dec. at 4). Since the

credibility determination was the basis for the IJ’s denials of withholding of removal and of



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voluntary departure, “the respondent [did] not proffer[] sufficient evidence or argument to

indicate that, if considered by the Immigration Judge, there would be a reasonable likelihood that

his applications for relief would succeed on the merits.” Id. The BIA properly denied the

motion for remand.

C. The IJ Was Not Required to Provide Lopez-Salgado with Notice and an Opportunity
   to Present Corroborating Evidence

       The IJ’s adverse credibility finding rested in part on the fact that Lopez-Salgado did not

provide corroborating evidence from any members of his immediate family, all of whom live in

Detroit and would have had “some knowledge of what happened to [Lopez-Salgado], or what he

claims happened to him in Mexico.” Id. at 126 (IJ Dec. at 10). Lopez-Salgado argues that he

should have received notice and opportunity either to produce such corroborating evidence or to

explain why such evidence was unavailable.

       In our recent decision in Gaye v. Lynch, we stated that “[§ 1158(b)(1)(B)(ii)] does not

suggest that the alien is entitled to notice from the IJ as to what evidence the alien must present.

. . . We hold that federal law does not entitle illegal aliens to notice from the Immigration Court

as to what sort of evidence the alien must produce to carry his burden.” __ F.3d ___, ___, 2015

WL 3555937, at *7 (6th Cir. 2015). That holding governs this case, notwithstanding Lopez-

Salgado’s contentions to the contrary. Lopez-Salgado essentially argues that he was otherwise

credible, even absent reasonably available corroborating evidence. That is not a fair portrayal of

what actually occurred. Both the IJ and the BIA found Lopez-Salgado to lack credibility in




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many respects. There is, as we have noted, substantial evidence supporting this finding. There is

no meaningful distinction from Gaye.

D. We Do Not Have Jurisdiction to Review Lopez-Salgado’s Claim Related to His
   Membership in a Particular Social Group

       In order “[t]o prevail on a petition for withholding of removal under the INA, an alien

must show that there is a ‘clear probability,’ that is, that ‘it is more likely than not,’ that []he

would be subject to persecution on the basis” of his “race, religion, nationality, membership in a

particular social group, or political opinion.” Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th

Cir. 2006) (citations omitted). Lopez-Salgado claimed membership in the particular social group

of “Mexican citizens, returning to Mexico with their U.S. citizen children, who have spent the

recent years in the United States and are considered foreigners in Mexico.” C.A.R. at 228 (Exh.

4). But Lopez-Salgado, by his own admission, “did not push his particular social group claim to

the Board” on appeal. Pet’r Br. at 50. That means that we do not have jurisdiction to reach this

question now.

       Under the INA, we “may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).

The BIA held here that “the respondent did not meaningfully challenge the portion of the

Immigration Judge’s decision denying his application for withholding of removal based on

claimed membership in a particular social group. We thus deem this issue waived on appeal.”

C.A.R. at 5 n.4 (BIA Dec. at 3). Lopez-Salgado did not, in other words, exhaust his claim

because he did not present it before the BIA.


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          In his opening brief, Lopez-Salgado nonetheless points to two BIA decisions that he

alleges fundamentally changed the law governing particular-social-group claims. He then, in his

reply brief, alleges that the government waived its right to challenge this particular argument,

because it did not discuss either of these two BIA decisions in depth in its brief. This argument

makes little sense.     Lopez-Salgado, not the government, waived the instant claim by not

presenting it before the BIA. That is the end of the matter in terms of what we may or may not

review.

E. The BIA Did Not Err By Not Referring Lopez-Salgado’s Case to a Three-Member
   Panel

          Finally, Lopez-Salgado argues that the BIA erred in failing to refer his case to a three-

member panel. As Lopez-Salgado notes, we have “not yet formally issued a precedent decision

addressing . . . [whether we have] jurisdiction over this issue.” Pet’r Br. at 27; see Nabhani v.

Holder, 382 F. App’x 487, 491 (6th Cir. 2010). Our sister circuits are split on this question. See

id. We see no need to wade into this divide today. Lopez-Salgado’s claim would fail even if we

had jurisdiction over it. See, e.g., Denko v. I.N.S., 351 F.3d 717, 732 (6th Cir. 2003) (assuming

without deciding that we have jurisdiction to review a decision by the BIA to designate a case for

summary affirmance without opinion). In his brief, Lopez-Salgado correctly identifies 8 C.F.R.

§ 1003.1(e)(6) as the regulation providing circumstances in which a case may be assigned to a

three-judge panel. He then points to 8 C.F.R. § 1003.1(e)(6)(v)—the provision providing for

panel review of “a clearly erroneous factual determination by an immigration judge”—in order

to argue that “[a] panel was necessary to review the clearly erroneous factual claims” made in


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this case. Pet’r Br. at 26. We have already held that the IJ’s factual findings were not clearly

erroneous, as they were supported by substantial evidence. See Nabhani, 382 F. App’x at 492.

Lopez-Salgado’s challenge is without merit.

                                     III. CONCLUSION

       For the foregoing reasons, we DENY Lopez-Salgado’s petition for review.




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