           United States Court of Appeals
                      For the First Circuit

No. 13-1337

                     ELISEO ESTEBAN MARTINEZ,

                            Petitioner,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                            Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE

                   BOARD OF IMMIGRATION APPEALS


                              Before

                   Howard, Ripple* and Thompson,
                          Circuit Judges.




     Timothy J. Nutter, on brief for petitioner.
     Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, and Jamie M. Dowd, Senior Litigation Counsel, Office of
Immigration Litigation, and Dana M. Camilleri, Trial Attorney,
Office of Immigration Litigation, Civil Division, United States
Department of Justice, on brief for respondent.



                         November 4, 2013




     *
         Of the Seventh Circuit, sitting by designation.
               RIPPLE, Circuit Judge. Eliseo Esteban Martinez, a native

and citizen of Guatemala, was refused entry into Canada from the

United States.       He was taken into United States custody, where he

admitted to a Border Patrol agent that he was in the United States

illegally to make money for his family.      Mr. Martinez later sought

relief under the Convention Against Torture (“CAT”), claiming that

he was likely to be tortured by gang members if he were returned to

Guatemala.       At a hearing before an immigration judge (“IJ”), the

Department of Homeland Security (“Department” or “DHS”)1 contested

Mr. Martinez’s claims.        The IJ found that Mr. Martinez was not

credible and, consequently, denied relief and ordered removal. The

Board of Immigration Appeals (“BIA” or “Board”) dismissed his

appeal.2      Mr. Martinez now petitions for review of the decision of

the Board.3      Because the administrative record does not require the

conclusion that Mr. Martinez is credible and because the Board did

not commit legal error in denying his request for relief under the

CAT, we deny the petition for review.




       1
        For ease of reading, we use the terms “Department” or “DHS”
as inclusive of its predecessor entities, including the Immigration
and Naturalization Service, as well as its current subdivisions,
including the United States Citizenship and Immigration Services.
       2
             The Board had jurisdiction under 8 C.F.R. § 1003.1(b)(3),
(9).       See also 8 U.S.C. § 1103(g).
       3
            We have jurisdiction under 8 U.S.C. § 1252(a)(5).

                                    -2-
                                 I

                             BACKGROUND

A.   Mr. Martinez’s Entry into Custody

           On April 14, 2007, Mr. Martinez was traveling with others

to a church conference in North Carolina from Massachusetts when

the vehicle in which he was riding became lost. Traveling north on

an interstate highway, rather than south, it came to the United

States-Canadian border.    The occupants were refused entry into

Canada and, upon attempting to reenter the United States, were

taken into United States custody.         Mr. Martinez gave a sworn

statement to a United States Immigration and Naturalization Service

official on a Form I-877, in which he stated that he is a citizen

of Guatemala who had entered the United States illegally by

crossing the Mexican border in February 2002.       He also admitted

that he had attempted to enter the United States illegally three

times before his most recent entry.4      Mr. Martinez explained that

he had entered the United States to earn income for his family.

Mr. Martinez did not sign his Form I-877.

           In removal proceedings following his apprehension at the

Canadian border, Mr. Martinez filed an application for withholding




      4
        Mr. Martinez stated that he had been “encountered at least
three times by U.S. Border Patrol and returned to Mexico all three
times” though he “was never detained.”

                                -3-
of removal on September 20, 2007.5       An IJ held a hearing on

Mr. Martinez’s application on October 12, 2010.   Mr. Martinez was

represented by counsel at the hearing and was the only witness to

testify.     He ultimately presented two versions of the relevant

events–one in his application and initial testimony before the IJ,

and the other in testimony on redirect following cross-examination

by the Department.

B.   Mr. Martinez’s Initial Account of Events

            Mr. Martinez’s application for relief under the CAT,

signed under penalty of perjury, asked him to list each entry he

had made into the United States.      He listed only one entry, on

February 2, 2002, which he had made by crossing the Mexican border

near San Ysidro, California.    Mr. Martinez claimed that he left

Guatemala after having been threatened and attacked by gang members

there.     At trial, Mr. Martinez repeated that he had entered the

United States in 2002.     He stated that he had not returned to

Guatemala after leaving that country in January 2002. Mr. Martinez

also stated in his application that he had been arrested only

once–for driving without a license in Massachusetts in 2004.




      5
        Though he now seeks protection under the CAT, Mr. Martinez
also applied for asylum under 8 U.S.C. § 1158(a) and withholding of
removal under 8 U.S.C. § 1231(b)(3)(A). He later acknowledged that
his asylum claim was not timely and that he was seeking withholding
of removal only under the CAT, not the Immigration and Nationality
Act. See A.R. at 65.

                                -4-
            On   his    application   and   in   his   initial   testimony,

Mr. Martinez described a series of threats and attacks against him

by gang members.       He stated that the attacks had begun when he was

waiting alone in a truck in Guatemala City in January 2001 while

working as a loader for a potato farmer. Four heavily tattooed men

with guns and knives had approached him and attempted to take the

truck, but Mr. Martinez had resisted.            The men then removed him

from the truck and began beating him.            They threatened that he

either could give them the truck or join their criminal activities

by becoming part of their gang, the Mara Salvatrucha (“MS-13”).

After he refused, they beat him until he could not stand and then

left him with a warning that they would return to hear his

response.

            Continuing his account, Mr. Martinez stated that, three

days later, the same four men had attacked him while he was waiting

alone in the truck in a parking lot near the potato warehouse where

he worked in Guatemala City.       When he again refused to join their

gang, they beat him over the head with a pistol and threatened to

kill him.   The men kicked and beat him on the ground to the point

that Mr. Martinez lost consciousness.        When Mr. Martinez returned

home, he discovered that the men had been there looking for him.

His father falsely had claimed to the men that he did not know

Mr. Martinez’s location.




                                      -5-
            The next day, the four men approached Mr. Martinez while

he was walking home from work.   After he refused to join the gang,

they beat and kicked him.   They also instructed him to meet them in

a nearby village, Aldea Ceresos, if he wanted to avoid further

attacks.    Mr. Martinez instead remained inside his home for three

weeks out of fear.

            Mr. Martinez then ventured out to a festival in a nearby

village, Aldea Villanueva, with three friends.6        The four men

located him in the crowd, pointed a gun at him and took him from

the festival to a dump area where they began beating him once more.

During the beating, one man cut Mr. Martinez’s hand with a knife.7

Mr. Martinez threatened to report the men to the police, and they

beat him until he lost consciousness.      After a group of ten to

fifteen people began approaching to see what was happening, the

four men left.   Mr. Martinez’s friends then brought him to the San

Marcos hospital where he spent two days recovering from his

injuries.    His hospital stay was in February 2001.

            Mr. Martinez reported that he was afraid for his life

after his hospitalization and remained inside his home for three

months.    During that time, the men asked for him at his home, but



     6
        In an affidavit attached to his application, Mr. Martinez
remembered that only three days passed between the attack and the
festival, not three weeks.
     7
        In his affidavit, Mr. Martinez stated that his wrist and
knee were cut during the attack, not his hand.

                                 -6-
they were told he was not there.    In May 2001, he ventured out to

a marketplace with a friend, where the four men found him and

pulled him from the crowd.       One of the men pointed a gun at

Mr. Martinez and the men beat him until a crowd began to notice

them.

            Two weeks later, in June 2001, the four men came to

Mr. Martinez’s home while his parents were away.     They threatened

to kill him or his family if he did not join them.       Mr. Martinez

filed a complaint with the police the day after this encounter. As

evidence of this event, he submitted with his application a police

report dated June 12, 2001, which noted that Mr. Martinez had

received threats from MS-13 gang members while leaving work, that

his right hand was injured and that the gang members had attempted

to extort money from him.8       In an affidavit attached to his

application,    Mr.   Martinez   reported   that   the   police   were

unsuccessful in their attempts to question the perpetrators.

            Three weeks after Mr. Martinez filed his police report,

his father was robbed and beaten by members of the gang who had

learned about the report.   The men told Mr. Martinez’s father that

they would continue beating him and would kidnap other family

members if Mr. Martinez did not join them.    Following his father’s




        8
       The police report did not mention the alleged encounter at
Mr. Martinez’s home.

                                 -7-
advice, Mr. Martinez then decided to come to the United States. He

left Guatemala “shortly thereafter.”9

           Mr. Martinez stated in his application that he had left

Guatemala on January 5, 2002, and he had been warned that, if he

returned to Guatemala, he would be killed.          He testified that he

finally was able to get into the United States in February 2002,

where he remained until he was taken into custody in 2007.

Mr. Martinez asserted that the police in Guatemala could not

protect him from torture by the gang because the police lacked

resources and capabilities.        Mr. Martinez contended that the

ability of the gangs in Guatemala to hurt him is evidenced by their

past attacks on him.

           In    addition   to   the     evidence   submitted   with   his

application and his own testimony before the IJ, Mr. Martinez

offered a letter from his father dated January 27, 2009.          In that

letter, Mr. Martinez’s father, Julian Esteban Chavez, stated that

Mr. Martinez had been threatened and persecuted by members of the

MS-13 gang.     Mr. Chavez further stated that Mr. Martinez had left

Guatemala in order to escape the gang and that returning there

would threaten Mr. Martinez’s safety.




     9
         A.R. at 114.

                                   -8-
C.   Mr. Martinez’s New Version of Events on Redirect

           During cross-examination, DHS confronted Mr. Martinez

with evidence that he had committed a motor vehicle violation,

driving   without    a   license,   in    September   2001.     DHS   asked

Mr. Martinez how he could have a criminal record in the United

States from 2001 if he first entered the country in February 2002.

Mr. Martinez then admitted that he had been arrested for driving

without authorization in 2001.      When DHS again asked how he could

have committed a motor vehicle violation in September 2001 if he

first had entered the United States in 2002, Mr. Martinez stated

that he had not understood the question.

           During redirect from his attorney, Mr. Martinez offered

a different account of events than the one he initially presented.

He testified that he had entered the United States twice before

February 2002.      The first time, in December 2000, he entered the

United States from Mexico but was apprehended by border patrol

agents near the border and was sent back to Mexico.           Mr. Martinez

then remained briefly in Mexico before returning to his home in

Guatemala, where the gang began harassing him in January 2001.

           After his encounters with the gang, Mr. Martinez entered

the United States illegally in July 2001.        He remained there until

November 2001.      Mr. Martinez testified that he had decided to

return to Guatemala after his September 2001 arrest for a motor

vehicle violation because he was “ignorant about the way things


                                    -9-
work[]” in the United States and “scared.”10    He left the United

States in November 2001 and went to Mexico.    Mr. Martinez spent a

few weeks in Mexico to earn money to reenter the United States,

then returned to Guatemala “to make more money.”11

            Mr. Martinez testified that he did not mention his

entries before 2002 in his application and initial testimony

because he thought that only his most recent entry was “permanent”

and therefore relevant.12   He attributed his earlier inconsistent

responses to a “misunderstanding” of “how things work here and what

they mean when they’re asking certain questions.”13

D.   The IJ and BIA Decisions

            On October 12, 2010, the IJ issued an oral decision

denying Mr. Martinez’s application for relief and ordering him

removed to Guatemala. The IJ concluded that the contradictions and

omissions in Mr. Martinez’s submissions and testimony evidenced he

was not credible.       The IJ noted that after being taken into

custody, Mr. Martinez stated that he had entered the United States

to earn income rather than to escape a threat in Guatemala.   The IJ

also observed that Mr. Martinez did not reveal that he had first


      10
           Id. at 86.
      11
        Id. at 87. The record does not explain why Mr. Martinez
chose to leave the United States but then began saving money to
reenter it.
      12
           Id. at 88.
      13
           Id. at 87-88.

                                -10-
entered the United States before February 2002 in his application

or his initial testimony; Mr. Martinez only admitted to prior

entries after being confronted with contradictory evidence. The IJ

found that Mr. Martinez’s voluntary return to Guatemala in November

2001, after the alleged gang attacks had occurred, undermined his

assertion that he feared being tortured or killed if he returned to

Guatemala.    The IJ concluded that Mr. Martinez had not met his

burden of establishing a clear probability that he would be

tortured by groups that the government of Guatemala is unable to

control if he were returned.

           The BIA dismissed Mr. Martinez’s appeal on February 14,

2013.   The BIA determined that the IJ had not clearly erred in its

adverse credibility finding because Mr. Martinez testified that he

had fled Guatemala to escape a criminal gang but, on his Form

I-877, he had stated that he entered the United States to work and

make money.   The BIA further determined that Mr. Martinez had not

offered   a   persuasive   explanation   when   confronted    during

cross-examination with inconsistencies between his actual history

and his sworn Form I-877 statement and his testimony.

           Mr. Martinez timely sought review in this court.




                                -11-
                                      II

                                  DISCUSSION

           As this case comes to us,14 Mr. Martinez presents two

issues for our decision.           First, he submits that the Board’s

determination    that   he   is    not   credible   is   not    supported   by

substantial evidence.     Second, he contends that the Board erred in

determining that he had failed to meet his burden of demonstrating

that he would be tortured with the consent or acquiescence of the

Guatemalan government.       He makes clear, however, that this second

point is contingent on our accepting his credibility argument.

                                      A.

           Mr. Martinez seeks relief under the CAT.             An applicant

for CAT protection “must bear the burden to prove, by objective

evidence, that it is more likely than not that he will be tortured

if he is deported.”     Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.

2004) (emphasis omitted).      “Torture is defined as any act by which

severe    pain   or   suffering,    whether    physical    or    mental,    is

intentionally inflicted on a person . . . when such pain or

suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting

in an official capacity.”      8 C.F.R. § 1208.18(a)(1).        Torture does




     14
          Mr. Martinez has conceded that he cannot establish
eligibility for asylum or for withholding of removal under the
Immigration and Nationality Act.

                                     -12-
not include “lesser forms of cruel, inhuman or degrading treatment

or punishment.”       Id. § 1208.18(a)(2).

           We    review        for     substantial        evidence       the      Board’s

determination that Mr. Martinez was not credible.                     See Liu Jin Lin

v.   Holder,    723    F.3d    300,     305    (1st   Cir.      2013).      Under    the

substantial evidence standard, the decision of the Board “must be

upheld if supported by reasonable, substantial, and probative

evidence on the record considered as a whole.”                           Immigration &

Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)

(internal quotation marks omitted).                Reversal is appropriate only

where “a reasonable factfinder would have to” reach a contrary

conclusion.       Id.;    see        also    Aguilar-Solis       v.   Immigration       &

Naturalization        Serv.,    168     F.3d       565,   571    (1st      Cir.     1999)

(instructing courts to accord “significant respect” to a hearing

officer’s credibility determination “as long as the findings on

which it rests have sufficiently sturdy roots in the administrative

record”).15


      15
        The Government contends that we should review the decision
of the Board and the IJ together, citing Tobon-Marin v. Mukasey,
512 F.3d 28, 30 (1st Cir. 2008). See Gov’t Br. 12. Tobon-Marin
instructs us to review both decisions when “the BIA adopted and
supplemented the IJ’s opinion with its own substantive gloss.”
Tobon-Marin, 512 F.3d at 30. That is not an apt description of the
record in this case.     The BIA rendered its own decision.      It
affirmed, but did not adopt, the decision of the IJ. The Board’s
determination on these issues therefore is the final agency
decision under review.     See Pulisir v. Mukasey, 524 F.3d 302,
307-08 (1st Cir. 2008); see also Lin v. Mukasey, 521 F.3d 22, 26
(1st Cir. 2008) (noting that, where the BIA does not adopt the IJ’s
opinion, we review the ruling of the BIA standing alone).

                                            -13-
             A   specific       statutory   provision   further    guides    our

assessment       of    whether    the   “roots”   of    the   assessment     are

“sufficiently sturdy.”           Section 1158(b) of Title 8 of the United

States Code governs adverse credibility determinations for claims,

such as this one, that were filed after May 11, 2005.              REAL ID Act

of 2005, Pub. L. No. 109-13, § 101(a)(3), 119 Stat. 302, 303

(codified at 8 U.S.C. § 1158(b)(1)(B)(iii)).            The statute requires

an immigration fact-finder to base credibility determinations on

the totality of the circumstances:

                  Considering the totality of the circumstances,
             and all relevant factors, a trier of fact may base
             a credibility determination on the demeanor,
             candor, or responsiveness of the applicant or
             witness,   the   inherent   plausibility   of   the
             applicant’s or witness’s account, the consistency
             between the applicant’s or witness’s written and
             oral statements (whenever made and whether or not
             under oath, and considering the circumstances under
             which the statements were made), the internal
             consistency of each such statement, the consistency
             of such statements with other evidence of record
             (including the reports of the Department of State
             on country conditions), 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); see also Jianli Chen v. Holder, 703

F.3d 17, 22 (1st Cir. 2012) (noting that courts should “proceed to

evaluate   the        adverse    credibility   determinations     under    these

guidelines and in light of the totality of the circumstances”).




                                        -14-
                                      B.

            Our examination of the record reveals that the Board’s

determination is supported by substantial evidence. Mr. Martinez’s

own testimony on redirect contradicts his application and his

initial testimony.         After being taken into custody, Mr. Martinez

stated that he entered the United States to earn income.             Later he

claimed to have entered to escape a gang in Guatemala.             He wrote in

his application and testified before the IJ that he entered the

United States in 2002, but then admitted after cross-examination

that he also entered the United States in 2000 and 2001.                    When

questioned, he did not provide a persuasive explanation for why he

voluntarily returned to Guatemala in November 2001 after fleeing

Guatemala in July 2001 because of threats and beatings by the gang.

Mr. Martinez cites no applicable First Circuit precedent for his

assertion     that   the   Board   erred    in   finding   Mr.   Martinez   not

credible.16

            Mr. Martinez attempts to explain the inconsistencies in

his submissions and testimony as simple misunderstandings resulting

from confusion.       He claims that he initially disclosed only his



     16
          Mr. Martinez cites several cases from other circuits
holding that an immigration judge should seek clarification before
basing an adverse credibility determination on a latent discrepancy
rather than a self-evident discrepancy. See Pet’r’s Br. 15. These
cases are not relevant here because Mr. Martinez’s testimony
contained self-evident discrepancies about his dates of entry into
the United States and because the IJ allowed counsel to seek
clarification during further questioning.

                                     -15-
February 2002 entry because he believed it was his only permanent,

and therefore relevant, entry. Although questions certainly may be

misinterpreted, his explanation is not so compelling that the

fact-finder was required to credit it.      See Rivas-Mira v. Holder,

556 F.3d 1, 5 (1st Cir. 2009) (holding that an IJ was not required

to   accept   a    petitioner’s   unconvincing    attempts     to   explain

significant anomalies).17     Mr. Martinez was represented by counsel

before the IJ and his testimony evidences no general difficulty

understanding and responding to questions.          Mr. Martinez’s many

missed opportunities to disclose his earlier entries into the

United    States    also   demonstrate   more    than   mere    confusion,

particularly because his affidavit and initial testimony covered a

time period that included his 2001 entry into the United States.

It is clear on the face of the record that the BIA and IJ weighed

and rejected the possibility that Mr. Martinez’s inconsistencies

were the result of mere confusion about the import of questions.

           Mr. Martinez also contends that the BIA and IJ erred in

giving undue weight to his unsigned Form I-877, which he completed


     17
        See also Wen Feng Liu v. Holder, 714 F.3d 56, 60-61 (1st
Cir. 2013) (affirming lack of credibility finding where petitioner
added details to his testimony only when confronted by a change in
the law); Qin v. Ashcroft, 360 F.3d 302, 308 (1st Cir. 2004)
(holding that “the IJ was entitled to, and did, disbelieve” a
petitioner’s assertions). Even statements that are not intended to
mislead can lack credibility. See Seng v. Holder, 584 F.3d 13, 19
(1st Cir. 2009) (“A statement may be untrue (and, thus, not
credible) because of lack of knowledge, faulty memory, garbled
expression, or other reasons, notwithstanding the declarant’s
intent to speak the truth.”).

                                  -16-
at the border.18 Mr. Martinez’s argument turns on the fact that the

Form I-877 statement was not signed by him or any witness.

Mr. Martinez did not make this argument before the IJ or the Board,

and it is therefore waived.19 In any event, the REAL ID Act permits

a fact-finder to weigh even informal statements.20            We note that,

although Mr. Martinez did not sign the statement, the interview was

conducted with Mr. Martinez under oath and with the assistance of

an   interpreter.      The   immigration    officer   who    conducted    the

interview did sign the form.            The IJ and the BIA knew the

circumstances of Mr. Martinez’s Form I-877 from the context of his

testimony before the IJ.        Mr. Martinez did not deny that he had

told a Border Patrol agent that he entered the United States to

earn income.     He also admitted that he returned voluntarily to

Guatemala in late 2001 in spite of the gang’s alleged threats

toward him earlier that year. The BIA’s reliance on Mr. Martinez’s

Form I-877 was not excessive in light of these circumstances.

            We must conclude that the Board’s decision to dismiss

Mr. Martinez’s appeal of the IJ’s adverse credibility determination

is   supported    by   substantial    evidence.       In    light   of   this


      18
           Pet’r’s Br. 15-16.
      19
        See 8 U.S.C. § 1252(d)(1); Olujoke v. Gonzáles, 411 F.3d
16, 22-23 (1st Cir. 2005).
      20
        See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Jianli Chen v.
Holder, 703 F.3d 17, 23 (1st Cir. 2012) (noting that “[i]t is
normally enough if the IJ reasonably finds a proffered piece of
evidence to be reliable and its use to be fundamentally fair”).

                                     -17-
determination, we cannot accept, as Mr. Martinez frankly concedes,

his second contention that he has met his burden of proof for

relief under the CAT.   See Segran v. Mukasey, 511 F.3d 1, 5 (1st

Cir. 2007).

                             Conclusion

          The conclusion of the BIA that Mr. Martinez was not

credible is supported by substantial evidence.   Accordingly, the

agency’s decision denying his application for relief under the CAT

must stand.

          PETITION DENIED.




                                -18-
