Ana Amaya-Artiga v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: June 10, 2024
• Docket: 23-1233
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-1233 ____________

ANA EVELIN AMAYA-ARTIGA, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A099-678-534) Immigration Judge: Ramin Rastegar ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 7, 2024 ____________

Before: CHAGARES, Chief Judge, CHUNG and FISHER, Circuit Judges

(Filed: June 10, 2024)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.

Ana Evelin Amaya-Artiga (“Amaya-Artiga”) petitions for review of a Board of

Immigration Appeals (“BIA”) decision dismissing her appeal from an Immigration

Judge’s (“IJ”) order of removal. For the reasons that follow, we will deny the petition for

review.

I.1

Amaya-Artiga is a native and citizen of El Salvador who came to the United States

in 2006. Removal proceedings were initiated upon her arrival and she was ordered

removed in absentia, but the proceedings were later reopened. Amaya-Artiga conceded

removability and moved for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”) based on past persecution and a fear of future

persecution by gang members due to her membership in various particular social groups

(“PSGs”).

The IJ denied relief, concluding, among other things, that Amaya-Artiga was not

credible, her claims were not corroborated, her PSGs were not cognizable, there was no

nexus between the PSGs and any harm she experienced, and there was no showing of a

likelihood of torture. Amaya-Artiga appealed to the BIA, which dismissed her appeal.

She timely filed this petition for review.

1 We write for the parties and therefore recite only those facts pertinent to our decision. 2 II.

A.

Amaya-Artiga first claims that the agency erred by rejecting her claims for asylum

and withholding of removal based upon her lack of credibility. We review the BIA’s

adoption of the IJ’s adverse credibility finding with “exceptional deference” under the

substantial evidence standard.2 Alimbaev v. Att’y Gen., 872 F.3d 188, 196 (3d Cir.

2017). Our deferential standard of review reflects the principle that the IJ is “uniquely

qualified to decide whether . . . testimony has about it the ring of truth.” Id. at 197

(quotation marks omitted). Thus, “[t]he agency’s ‘findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.’” Nasrallah

v. Barr, 590 U.S. 573, 584 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)).

Here, as the BIA observed, the IJ based the credibility finding on “specific and

cogent reasons, including significant evasiveness, vague and inconsistent statements,

omissions, and lack of corroboration.” Appendix (“App.”) 8. Among other things, the IJ

identified numerous glaring inconsistencies between Amaya-Artiga’s testimony and her

written application. Her application stated, for instance, that she was threatened by the

gang “at least twice a month,” Administrative Record (“AR”) 162, yet she testified that

she was threatened “only on three occasions,” AR 146. The application reflected that she

was “beaten and assaulted at gunpoint” by gang members, AR 163, while she testified

2 Where, as here, “the ‘BIA’s opinion directly states that the BIA is deferring to the IJ, or invokes specific aspects of the IJ’s analysis and factfinding in support of the BIA’s conclusions,’ we review both decisions.” Uddin v. Att’y Gen., 870 F.3d 282, 289 (3d Cir. 2017) (quoting Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir. 2012)). 3 that “[t]hey didn’t hit [her],” AR 145. Amaya-Artiga’s affidavit stated that three of her

children “had to flee” El Salvador due to threats from gang members, AR 219, but she

testified that “[she] d[id]n’t know why they came” to this country, AR 129.

Amaya-Artiga does not dispute the existence of these discrepancies, but she

attempts to minimize them. She acknowledges that, with respect to the frequency and

degree of persecution, her testimony described less severe harm than her written

application. But she contends she should be credited because she diminished, rather than

exaggerated, her claims. She also argues that her children’s reasons for leaving El

Salvador are irrelevant to her asylum claim and should not be considered in assessing her

credibility.

We are not persuaded. A credibility determination may rely on any inconsistency

or omission, so long as the totality of the circumstances establishes that the petitioner is

not credible. See Sunuwar v. Att’y Gen., 989 F.3d 239, 250 (3d Cir. 2021); 8 U.S.C.

§ 1158(b)(1)(B)(iii). Considering the totality of the circumstances, there is substantial

support for the IJ’s finding that Amaya-Artiga was not credible. Her arguments do not

compel a contrary conclusion. See Nasrallah, 590 U.S. at 584.

B.

Amaya-Artiga next claims that the agency erred in concluding she did not meet

her burden of proof for asylum and withholding of removal because she failed to present

reasonably available documentary evidence specific to her claims or to explain the

absence of such evidence. Indeed, the IJ noted that Amaya-Artiga failed to provide “any

document of any sort to establish any of the things that she alleges or has alleged today.”

4 App. 23. The BIA agreed, observing that she failed to satisfy her burden of proof due to

“the absence of credible testimony and any evidence which independently establishes her

burden.” App. 9. Amaya-Artiga does not dispute that she did not submit documentary

evidence to specifically corroborate her claims.3 Rather, she argues that it was error to

expect any corroboration at all.

We disagree. Amaya-Artiga testified, for instance, that three of her adult children

reside in the United States and one of them has also applied for asylum. It was

reasonable for the IJ to question why she did not provide statements from those children

to support her claims. See Chukwu v. Att’y Gen., 484 F.3d 185, 192 (3d Cir. 2007)

(holding that it is reasonable to expect corroboration where facts central to the claim are

easily subject to verification). Amaya-Artiga bore the burden of proof. 8 U.S.C.

§ 1158(b)(1)(B)(i). While testimony without corroboration may be sufficient to sustain

that burden where a petitioner is credible, see id. § 1158(b)(1)(B)(ii), Amaya-Artiga was

not credible and so was required to meet her burden with additional evidence specific to

her claims. She failed to do so.

C.

Amaya-Artiga last claims that the IJ erred in denying CAT relief. To determine

whether a petitioner has met her CAT burden, the agency must address: (1) what is likely

to happen if the petitioner is removed, and (2) whether what is likely to happen amounts

3 Amaya-Artiga argues that she submitted a report showing that many individuals in El Salvador are victims of gang crime. A general report about crime in El Salvador, without more, does not demonstrate that Amaya-Artiga personally experienced or will experience persecution, and is therefore insufficient to sustain her burden of proof. 5 to torture. Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017).

Like her claims for asylum and withholding of removal, the agency determined

that the CAT claim failed because Amaya-Artiga did not sustain her burden of proof: her

claim was based on non-credible testimony and was unsupported by objective evidence.

Amaya-Artiga contends the agency committed reversible error by failing to conduct the

two-step Myrie analysis when it rejected her claim. We are unpersuaded. Although the

IJ did not cite Myrie, his analysis amounted to a conclusion that Amaya-Artiga failed

Myrie step one, because he determined that she did not meet her burden to prove what is

likely to happen to her if removed. She offers nothing to undermine that sound

conclusion.

III.

For the foregoing reasons, we will deny the petition for review.