Glenda Rosibel Molina-Rivera v. U.S Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 5, 2018
• Docket: 17-12201
• Status: Unpublished

Opinion

Case: 17-12201 Date Filed: 02/05/2018 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12201 Non-Argument Calendar ________________________

Agency No. A208-280-454

GLENDA ROSIBEL MOLINA-RIVERA, JOSTIN DANERY CASTRO-MOLINA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(February 5, 2018)

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM: Case: 17-12201 Date Filed: 02/05/2018 Page: 2 of 11

Glenda Rosibel Molina-Rivera and her minor son, Jostin Danery Castro-

Molina, who are natives and citizens of Honduras, seek review of the final order of

the Board of Immigration Appeals (BIA) affirming the denial by the Immigration

Judge (IJ) of Molina-Rivera’s application for asylum pursuant to the Immigration

and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a), withholding of removal

under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT), 8 C.F.R. § 208.16(c). The BIA affirmed the IJ’s denial of

Molina-Rivera’s application based on its conclusions that she was not credible, had

failed to establish a nexus between the alleged harm and a statutorily protected

ground, and had failed to establish that she would, more likely than not, be

subjected to torture with the acquiescence of a public official upon her return to

Honduras.

We review the BIA’s decision as the final judgment in an immigration

appeal. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (per

curiam). When the BIA adopts or explicitly agrees with the IJ’s findings or

reasoning, we review both the BIA and the IJ to the extent of the adoption or

agreement. Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (per

curiam). Here, because the BIA did not explicitly agree with or adopt the IJ’s

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reasoning, we will review only the BIA’s decision. See Gonzalez, 820 F.3d at 403;

Singh, 561 F.3d at 1278.

We review factual determinations, including credibility determinations,

under the substantial evidence test. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1254–

55 (11th Cir. 2006) (per curiam). We must affirm the BIA’s decision “if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. We will view the record evidence “in the light most

favorable to the agency’s decision and draw all reasonable inferences in favor of

that decision.” Id. at 1255. Accordingly, in order for us to conclude that a finding

of fact should be reversed, we must determine that the record “compels” reversal.

Id. “[T]he mere fact that the record may support a contrary conclusion is not

enough to justify a reversal.” Id.

Credibility is judged using a totality of the circumstances test, and a trier of

fact may base a credibility determination upon several factors, including the

witness’s demeanor and candor, the inherent implausibility of the witness’s

account, the internal consistency of the witness’s own statements and the

consistency of those statements with other evidence in the record, and any

inaccuracies or falsehoods contained in the testimony. INA § 208(b)(1)(B)(iii), 8

U.S.C. § 1158(b)(1)(B)(iii). The trier of fact may consider inconsistencies,

inaccuracies, or falsehoods without regard to whether they go to the heart of the

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applicant’s claim. Id. “Indications of reliable testimony include consistency on

direct examination, consistency with the written application, and the absence of

embellishments.” Ruiz, 440 F.3d at 1255. An applicant’s “tenable” explanation of

the implausible aspects of her claim do not necessarily compel reversal of an

adverse credibility determination, especially if there is a lack of corroborating

evidence. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006) (per

curiam). Moreover, an adverse credibility finding must be based on the record, not

on speculation or conjecture. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1278 (11th

Cir. 2009).

An applicant’s credible testimony alone may be sufficient to sustain her

burden of proof in establishing her eligibility for relief from removal. Ruiz, 440

F.3d at 1255. On the other hand, an adverse credibility determination alone may

be sufficient to support the denial of relief, though such determination does not

alleviate the burden to consider the other evidence presented by the applicant. Id.

If an applicant produces evidence beyond her own testimony, it is not sufficient to

rely solely on the adverse credibility finding in denying the application. Id. Once

an adverse credibility determination has been made, the burden is on the applicant

to show that the determination was not supported by “specific, cogent reasons” or

was not based on substantial evidence. Id.

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In order to establish eligibility for asylum, the applicant must produce

specific and credible evidence to demonstrate (1) past persecution on account of a

statutorily protected ground, or (2) a well-founded fear of future persecution on

account of a statutorily protected ground. Id. at 1257; 8 C.F.R. § 208.13(a), (b). If

the applicant demonstrates past persecution, there is a rebuttable presumption that

she has a well-founded fear of future persecution. Ruiz, 440 F.3d at 1257; 8 C.F.R.

§ 208.13(b). If the applicant cannot show past persecution, then she must

“demonstrate a well-founded fear of future persecution that is both subjectively

genuine and objectively reasonable.” Ruiz, 440 F.3d at 1257. The subjective

component can be proved by an applicant’s credible testimony that she genuinely

fears persecution, while the objective component can be fulfilled either by

establishing past persecution or establishing that there is a good reason to fear

future persecution. Id. If an individual subject to removal is granted asylum, that

individual’s child, if accompanying her, may also be granted asylum, even if the

child is not otherwise eligible. INA § 208(b)(3)(A), 8 U.S.C. § 1158(b)(3)(A).

Persecution is an “extreme concept” requiring more than a few isolated

incidents of verbal harassment or intimidation, and mere harassment does not

amount to persecution. De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008

(11th Cir. 2008). In determining whether an individual subject to removal has

suffered past persecution, the IJ must view the record as a whole and consider the

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cumulative effect of the allegedly persecutory acts. Id. There is no rigid

requirement of physical injury. Id.

The applicant must also demonstrate that a statutorily enumerated ground

“was or will be at least one central reason for persecuting” her. INA

§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). Evidence that is consistent with

acts of private violence or the petitioner’s failure to cooperate with guerillas, or

that merely shows a person has been the victim of criminal activity, does not

constitute evidence of persecution based on a statutorily protected ground. Ruiz,

440 F.3d at 1257–58.

An applicant seeking withholding of removal must show that her “life or

freedom would be threatened in that country because of [her] race, religion,

nationality, membership in a particular social group, or political opinion.” INA

§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). This showing can also be made by

establishing past persecution or a likelihood of future persecution upon removal

based on a protected ground. Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308

(11th Cir. 2013) (per curiam).

An individual subject to removal may obtain CAT relief if she establishes

that it is more likely than not that she would be tortured 1 if removed to the

1 Under 8 C.F.R. § 208.18(a)(1), “Torture” is

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proposed country of removal. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,

1242 (11th Cir. 2004); 8 C.F.R. § 208.16(c)(2). Acquiescence requires that a

public official, “prior to the activity constituting torture, have awareness of such

activity and thereafter breach his or her legal responsibility to intervene and

prevent such activity.” 8 C.F.R. § 208.18(a)(7).

Here, the BIA offered “specific, cogent reasons” for its adverse credibility

finding and substantial evidence supports that finding. See Ruiz, 440 F.3d at 1255.

The BIA identified three bases supporting the IJ’s adverse credibility

determination: (1) the inconsistencies in Molina-Rivera’s testimony regarding

when the gang’s threats and extortionate demands began, (2) Molina-Rivera’s

embellishment regarding the length of her relationship with Castillo, and

(3) Molina-Rivera’s denial of knowledge regarding whether other businesses in her

city were extorted by the gang.

With respect to the first basis, the record reflects several inconsistencies

regarding when the gang’s threats and extortionate demands began. Molina-Rivera

testified at the removal hearing that the gang began extorting her mother’s business

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, 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. 7 Case: 17-12201 Date Filed: 02/05/2018 Page: 8 of 11

when it opened in 1999, but also testified that the extortion began in 2001, after a

gang member raped her sister. Her written supplement to her initial application

indicated that her “real problems” began in 2004, as a result of Danny’s family’s

anger about her mother’s relationship with Lito. During her testimony at the

removal proceeding, she stated that the extortion began prior to her mother’s

relationship with Lito, but death threats began in 2004. She also stated that she

believed that Danny was involved in the gang’s extortion, which began prior to her

mother’s relationship with Lito, but that she did not notice that Danny was

associated with the gang until 2004, after the relationship began. Molina-Rivera’s

sister indicated that the extortion began in 2002. As a whole, the record contained

several inconsistencies regarding when the gang’s threats and extortion began—

1999, 2001, 2002 or 2004—and regarding what motivated the threats and

extortion—the fact that Molina-Rivera’s mother opened a business, the fact that

Molina-Rivera’s sister was raped, or that fact that Molina-Rivera’s mother began a

relationship with Lito.

Molina-Rivera explained these inconsistencies by arguing that the fact that

the gang’s extortion began before her mother’s relationship with Lito does not

contradict the fact that the relationship resulted in death threats against her

family—a separate matter from the gang’s extortion. However, substantial

evidence supports the BIA’s conclusion that Molina-Rivera testified inconsistently

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regarding the circumstances surrounding the gang’s threats and extortion, and all

inconsistencies, regardless of whether they go to the heart of the claim, are relevant

to the overall credibility determination. See INA § 208(b)(1)(B)(iii), 8 U.S.C.

§ 1158(b)(1)(B)(iii). Moreover, even if Molina-Rivera’s explanation may be

tenable, that alone is not sufficient to support a reversal of the credibility finding.

See Chen, 463 F.3d at 1233. Accordingly, these inconsistencies support the

finding that Molina-Rivera was not credible. See id.

With respect to the second basis for the adverse credibility finding, Castillo

stated in his affidavit that he had known Molina-Rivera for 15 years. In her

testimony at the removal hearing, Molina-Rivera initially stated that she had

known Castillo for six or seven years, but eventually admitted that she had met him

in 2014, only two years before the hearing. She also acknowledged that she had

seen him only a few times. Castillo’s and Molina-Rivera’s exaggerations

regarding the length of their relationship constitute embellishments and support the

finding that Molina-Rivera was not credible. See Ruiz, 440 F.3d at 1255. Molina-

Rivera attempts to explain her embellishment by stating that she was confused

during her testimony. This explanation, while arguably tenable, does not, on its

own, compel reversal of the credibility determination. See Chen, 463 F.3d at 1233.

With respect to the third basis, the evidence that Molina-Rivera presented

indicated that Honduras was dominated by criminal gangs. That fact, which was

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contained in the record and not merely speculation or conjecture, provided a

reasonable basis for the BIA to conclude that Molina-Rivera would have known

whether other businesses were extorted. See Tang, 578 F.3d at 1278. Thus,

substantial evidence supports the conclusion that this portion of Molina-Rivera’s

testimony was implausible. Accordingly, the record does not compel reversal of

the adverse credibility finding. See Ruiz, 440 F.3d at 1255.

Moreover, as to the merits of her asylum and withholding of removal claims,

the record does not compel reversal of the finding that the gang’s threats and

assaultive conduct against Molina-Rivera were motivated by criminality and the

gang’s desire to extort the family business, rather than her membership in her

family as a particular social group. The totality of evidence presented suggests that

crime and violence at the hands of the gangs were common in Honduras. Molina-

Rivera’s own testimony, and the statements of her mother and sister, indicated that

she and her family had been victims of the gang’s crimes—namely, extortion and

assault—prior to her mother’s relationship with Lito, which is the event that

allegedly motivated the gang to target Molina-Rivera as a result of her membership

in her family. These facts constitute substantial evidence supporting the agency’s

conclusion that Molina-Rivera was a victim of criminality, and that her family

relationship was not a central reason motivating the gang’s actions against her. See

INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i); Ruiz, 440 F.3d at 1257.

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Because asylum and withholding of removal both require a nexus between the

alleged persecution and a protected ground, substantial evidence supports the

conclusion that Molina-Rivera’s claims for both kinds of relief fail on that basis.

See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.13(b); Ruiz,

440 F.3d at 1257.

Finally, the record does not compel reversal of the finding that Molina-

Rivera would not, more likely than not, be subjected to torture with the consent or

acquiescence of a public official upon her return to Honduras, and thus Molina-

Rivera was not entitled to CAT relief. Molina-Rivera testified that she never filed

a police report or attempted to alert law enforcement about the threats and

extortion, and thus she could not show that the police had acquiesced to the gang’s

actions against her. The background evidence also indicated that the Honduran

government had made attempts to control gang violence, though such attempts

were largely unsuccessful. These facts constitute substantial evidence supporting

the conclusion that Molina-Rivera had not established that a public official would

acquiesce to her torture. See 8 C.F.R. § 208.18(a)(7).

Accordingly, we deny Molina-Rivera’s petition.

PETITION DENIED.