Aguedita Ordonez Tevalan v. Attorney General United States

837 F.3d 331, 2016 U.S. App. LEXIS 17224, 2016 WL 5122358
Court of Appeals for the Third Circuit·Decided September 21, 2016·No. 15-2187·Published·Cited by 27 cases

Opinion

OPINION

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on a petition for review of two decisions and orders of the Board of Immigration Appeals (“BIA”). Aguedita Odilia Ordo-nez-Tevalan (“Ordonez”) petitions for review of the BIA’s decision and order dismissing her appeal from a decision and order of an immigration judge (“IJ”) denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In addition, Julio Gonzalez Ordonez (“Gonzalez”), Ordonez’s youngest son, petitions for review of the BIA’s decision and order dismissing his appeal from the IJ’s decision and order denying his derivative application for asylum, withholding of removal, and protection under the CAT.

While this petition was pending in this Court, petitioners and the Attorney General filed a joint motion with the BIA to reopen the BIA proceedings. The BIA granted that motion and reissued its decisions and orders without change. The petitioners did not file a petition for review in this Court of the reissued decisions and orders. Thereafter the Attorney General filed a motion with this Court to dismiss the petition for review of the original decisions and orders for lack of jurisdiction. We hold that because the reissued decisions and orders did not alter the prior decisions and orders that petitioners challenge in their petition,' we have jurisdiction over their petition. Therefore we will deny the Attorney General’s motion to dismiss the petitions on jurisdictional grounds. We, however, will deny the petition for review on the merits. ‘

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Ordonez is a native and citizen of Guatemala who has three sons. Ordonez first entered the United States on March 28, 2014, unaccompanied by her children and apparently without inspection, but on that day Border Patrol agents detained her. She claims that during this detention she expressed fear of returning to Guatemala because of abuse she had suffered there. Nevertheless, the Department of Homeland Security, after serving her with a Notice and Order of Expedited Removal, removed her on April 2, 2014. But on June 1, 2014, within less than two months of her removal, Ordonez reentered the United States with her youngest son, Gonzalez, who was then six years old, apparently again without inspection. This entry also was not successful, as the Border Patrol detained her and Gonzalez on June 1, 2014. In -immigration court proceedings that followed, the IJ in his decision stated that, as *335 Ordonez “explained it, she returned with [her son] because she was told that it was more likely that she would be released if she were to show up with a child[,]” (AR 81). Ordonez, however, left her other two sons in Guatemala with her parents. Following Ordonez’s second detention, the Department of Homeland Security initiated proceedings against her to restore the pri- or order of removal, and served Gonzalez with a notice to appear in immigration court to answer the charge that he was removable under 8 U.S.C § 1182(a)(6)(A)(I).

On September 25, 2014, while these removal proceedings were pending, Ordonez filed an application seeking asylum, withholding of removal, and protection under the CAT. 1 Gonzalez applied for similar relief as a derivative applicant on his mother’s application.

In the immigration court, Ordonez resisted removal and sought protective relief based on her alleged fear of abusive conduct by her former boyfriend, Jose Lopez, with whom she had a relationship from approximately 1998 to 2000. Ordonez contended before the IJ that during that time frame, Lopez subjected her to verbal, physical, and sexual abuse. Ordonez testified in the immigration court that in April 2000, she ended her relationship with Lopez and thereafter she had no contact or communication with him until January 2014, when, apparently by chance, she encountered him. Ordonez asserts that during this encounter, Lopez grabbed her on the street, kicked her, threw her to the ground, and attempted to rape her, but she managed to escape. Ordonez claims that later in the same month, Lopez found her at her home and raped her. She alleges that he threatened to kill her and any of her children who were with her if he saw her again. As a result of these alleged actions and threats, Ordonez asserts that she stopped leaving her house alone and fled to this country to escape Lopez.

Following oral testimony and the filing of affidavits, an IJ on December 3, 2014, denied Ordonez’s claims for relief. In his oral decision, the IJ first noted that Ordo-nez was placed .only in withholding of removal proceedings in accordance with 8 C.F.R. § 208.31(e). because she was ineligible for asylum due to the reinstatement of the prior order for her removal. See 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 208.16. In addressing the merits of the case, the IJ concluded that Ordonez was not credible given her vague recollections of dates, inconsistencies between her testimony and documentary evidence, and his belief that her testimony regarding the Border Patrol’s conduct during her first attempt to enter this country was “inconsistent with what the Court knows to be the practice of the Border Patrol.” (AR 91). Accordingly, he rejected her application. The IJ further determined that even if her testimony had been credible, she still failed to establish a basis for withholding of her. removal. Finally, the IJ denied'Ordonez relief on her CAT claim because he determined that there was no basis to find that any harm she had suffered in Guatemala or would suffer if she returned t,o that county had been or would be inflicted or instigated by or with the consent, acquiescence, or willful blindness of any public official or person acting in an official capacity.

The IJ also determined that Gonzalez’s claims failed because of Ordonez’s lack of credibility. The IJ found support for this *336 outcome by observing that Gonzalez’s two older brothers continued to live in Guatemala without incident, a circumstance from which an inference could be drawn that he could safely return to that country. Petitioners appealed to the BIA from the IJ’s decisions and orders.

On May 4, 2015, the BIA dismissed petitioners’ appeals. In reaching its result, the BIA discerned “no clear error” in the IJ’s “consideration of the totality of the circumstances,” (AR 5), and concluded that the IJ “provided specific, cogent reasons for finding [Ordonez] not credible under section 208(b) (1) (B) (iii) of the Immigration and Nationality Act (‘INA’),” (AR 5). Moreover, the BIA concluded that Ordonez had “not presented independent evidence showing that a probability as opposed to a possibility of torture is more likely than not, by or with the consent or acquiescence (to include the concept of willful blindness) of an official of the Guatemalan government” if she returned to Guatemala. (AR 5). As a result, the BIA dismissed Ordo-nez’s appeal in its entirety.

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Aguedita Ordonez Tevalan v. Attorney General United States, 837 F.3d 331, 2016 U.S. App. LEXIS 17224, 2016 WL 5122358 (3d Cir. 2016).

837 F.3d 331 (Aguedita Ordonez Tevalan v. Attorney General United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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