Clemencia Garcia-Morales v. Jefferson B. Sessions, III

712 F. App'x 559
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 15, 2017
Docket16-4121
StatusUnpublished
Cited by1 cases

This text of 712 F. App'x 559 (Clemencia Garcia-Morales v. Jefferson B. Sessions, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clemencia Garcia-Morales v. Jefferson B. Sessions, III, 712 F. App'x 559 (6th Cir. 2017).

Opinion

SUTTON, Circuit Judge. '

Border Patrol agents arrested Clemen-cia Yolanda Garcia-Morales when she illegally crossed the border from Mexico into Arizona. She applied for asylum. An immigration judge rejected her application after she failed to prove that she was a Guatemalan national. The Board of Immigration Appeals affirmed the immigration judge’s decisión and denied her motion to remand. We deny the petition for review.

In January 2014, Border Patrol agents apprehended Garcia-Morales in Arizona. She told them that she had come to the United States to find work and did not fear being returned to her home country. On March 17, 2014, she attended a hearing in which she raised her intention to apply for asylum. After being released on bond, she relocated to Memphis, Tennessee. By November, she was represented by counsel from the Memphis Immigration Advocates. She appeared with her counsel before an immigration judge on December 2, 2014. He scheduled her.asylum application hearing for May 20, 2015. On April 21, 2015, Garcia-Morales moved for a continuance to give her more time to “obtain documentation from Guatemala.” A.R. 167. The judge granted the continuance and scheduled the application hearing for August 20, 2015.

At the August hearing, Garcia-Morales said that she feared returning to Guatemala for two reasons. A man in Guatemala raped her when she was 16 and had harassed her in the years since. In addition, she feared her sister-in-law, who had threatened her, extorted money from her family, and was affiliated with a gang.

The immigration judge asked Garcia-Morales about her identification documents. She admitted she did not have any Guatemalan identification and that she had not asked her Guatemalan father to procure a copy of her birth certificate until a week or two before the hearing. The judgé asked the government if it had any identification documents for Garcia-Morales. The government produced a Mexican birth certificate for a woman born the same year as Garcia-Morales but with a different name on the certificate, found in a backpack Garcia-Morales had been carrying when the border agents arrested her.

She asked for a second continuance to give her more time to obtain a Guatemalan birth certificate. The judge denied the motion and rejected her application because she had not shown she was a Guatemalan national.

Garcia-Morales appealed to the Board of Immigration Appeals. She attached a copy of a Guatemalan birth certificate, issued in 2015, that she received after her immigration hearing. The Board affirmed the immigration judge’s decision to reject the application, deny the continuance, and designate Mexico as the primary removal country. It also denied her motion to remand the case. This petition for relief followed.

Denial of asylum. We treat Board opinions as final agency determinations. But we include the immigration judge’s decision in our review where the Board adopts the immigration judge’s reasoning, as happened here. Review is deferential. We respect the Board’s (and immigration judge’s) findings of fact unless the record requires otherwise. See 8 U.S.C. § 1252(b)(4)(B); Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).

To warrant asylum, Garcia-Morales must be a refugee under the Immigration and Naturalization Act. 8 U.S.C. § 1158(b)(1). That requires her to prove she is from the country from which she seeks asylum. See 8 U.S.C. § 1101(a)(42); In re O-D-, 21 I. & N. Dec. 1079, 1083 (BIA 1998). An applicant’s testimony as to her nationality may suffice where her testimony is “believable, consistent, and sufficiently detailed to provide a plausible and coherent account.” See In re M-D-, 21 I. & N. Dec. 1180, 1182 (BIA 1998). However, a failure to produce reasonably available corroborating evidence may justify an adverse finding. See Shkabari v. Gonzales, 427 F.3d 324, 331 (6th Cir. 2005).

The record supports the Board’s finding that Garcia-Morales did not show that she was a Guatemalan national. She had no official Guatemalan identification at the time of the hearing. She did not collect that evidence during the months leading up to the hearing before the immigration judge, even after being given a continuance to allow more time to collect documentation supporting her asylum claim. Though Garcia-Morales submitted letters from her family, her sister’s Guatemalan passport, and court documents from proceedings against her sister-in-law, such documents do not compel the conclusion that she was a Guatemalan national.

This missing evidence was important because Garcia-Morales had two backpacks at her arrest in Arizona, one of which included a Mexican birth certificate. Although neither the Board nor the immigration judge expressly made a credibility finding, both pointed to the Mexican birth certificate as reason to require greater corroboration from Garcia-Morales. The Board and the immigration judge determined that a Guatemalan identity document was reasonably available and should have been timely provided. The record does not compel the conclusion that the Board and the immigration judge erred in requiring greater corroboration to show that she was from Guatemala.

Garcia-Morales points out that the record does not contain the Mexican birth certificate the immigration authorities mentioned in their credibility determination, But the hearing transcript confirms that the Mexican birth certificate was in her file, that the immigration judge reviewed the birth certificate, considered it at length, and shared it with Garcia-Morales’ counsel, all without protest as to its contents or objection as to its use. Having failed to object to its contents or use then, she has forfeited any objection now. Ayyoub v. INS, 93 Fed.Appx. 828, 834 (6th Cir. 2004).

Even now, Garcia-Morales does not argue that the immigration judge’s consideration of the document was improper. Her pro se brief does, not mention it, and her counseled brief does nothing more than mention, in the fact section of the brief, that the birth certifícate was not in the record. A party forfeits an issue that it does not raise in its briefs. Bi Feng Liu v. Holder, 560 F.3d 485, 489 n.4 (6th Cir. 2009).

Motion for continuance. Garcia-Morales argues that the immigration judge and the Board abused their discretion when they denied her second motion for a continuance. To obtain a continuance to collect corroborating evidence, the petitioner must show good cause and make “a reasonable showing that the lack of preparation occurred ■ despite a diligent good faith effort to be ready to proceed” as scheduled. In re Sibrun, 18 I. & N. Dec. 354, 356 (BIA 1983); see also Badwan v. Gonzales, 494 F.3d 566, 570 (6th Cir. 2007); 8 C.F.R.

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712 F. App'x 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clemencia-garcia-morales-v-jefferson-b-sessions-iii-ca6-2017.