Gloria Diaz-Rivas v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 18, 2019
• Docket: 17-14847
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14847 ________________________

Agency No. A208-172-899

GLORIA DIAZ-RIVAS, LILIANA SOFIA GUTIERREZ DIAZ, Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 18, 2019)

Before JORDAN, GRANT, and BALDOCK, ∗ Circuit Judges.

GRANT, Circuit Judge:

∗Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by designation. Case: 17-14847 Date Filed: 04/18/2019 Page: 2 of 42

Gloria Diaz-Rivas seeks review of a final order by the Board of Immigration Appeals (BIA) affirming the denial of her application for asylum and withholding

of removal.1 Diaz-Rivas argues that the BIA erred in concluding (1) that part of her testimony was not credible and (2) that she failed to establish that she was persecuted because of her membership in a particular social group. She also asserts that the Immigration Judge (IJ) who heard her case denied her due process and equal protection of the laws. Because the record does not compel reversal of the BIA’s factual findings and because Diaz-Rivas’s constitutional challenges lack

merit, we deny the petition for review. I. Diaz-Rivas, a native and citizen of El Salvador, arrived in the United States on May 13, 2015. About one month later, U.S. immigration officials conducted a “credible fear interview” to assess her eligibility for asylum and withholding of removal. The Immigration and Nationality Act (INA) requires an alien seeking asylum to establish that she was persecuted “on account of” her “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Similarly, an applicant for withholding of removal must

1 Diaz-Rivas’s daughter, Liliana Sofia Gutierrez Diaz, seeks relief as a derivative beneficiary of Diaz-Rivas’s asylum application and so her claim rises or falls with Diaz-Rivas’s request. See 8 U.S.C. § 1158(b)(3)(A). Her derivative claim does not encompass Diaz-Rivas’s claim for withholding of removal. See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007) (per curiam) (holding that “there are no derivative benefits associated with a grant of withholding of removal”). Moreover, Diaz-Rivas did not challenge the IJ’s denial of her claim for relief under the Convention Against Torture and so we, like the BIA, consider that issue waived. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam). 2 Case: 17-14847 Date Filed: 04/18/2019 Page: 3 of 42

show that her life or freedom would be threatened “because of” one of these protected grounds. 8 U.S.C. § 1231(b)(3)(A).

During the credible fear interview, Diaz-Rivas stated that she fled El Salvador because members of the gang MS-13 threatened to kill her family. According to Diaz-Rivas, the gang kidnapped and killed her brother-in-law, Fidel, for failing to pay extortion money, then threatened her family after they reported his disappearance to the police. When the interviewing officer asked whether she feared returning to El Salvador for any other reason, Diaz-Rivas replied, “No, just

what I told you. The reason we flee from there. They want to kill us. There I had my life. My home. We weren’t rich or anything, but I was happy with my life.” Diaz-Rivas also asserted that her cousin sexually abused her when she was a child but confirmed that no one else in her family had ever harmed her. Following her release from detention, Diaz-Rivas retained counsel, who she thought would file an asylum application on her behalf. But counsel never did so, which led to an order of removal. When immigration officials sought to deport her, Diaz-Rivas obtained new lawyers, who filed an appeal with the BIA based on ineffective assistance of counsel. In support of that appeal, Diaz-Rivas submitted two affidavits describing a new reason that she fears returning to El Salvador. Specifically, Diaz-Rivas stated that her former partner, Jose Luis Gutierrez, forced her “to have sex with him about ten times a month over the course of twenty years.” She further stated, “I’m scared to return because Jose Luis says that I am still with him and that I must still see him” and “I am afraid I will be forced into sex with the father of my children again.” The BIA remanded Diaz-Rivas’s case to

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the Atlanta Immigration Court for further proceedings so that she could apply for relief from removal.

Four months later, Diaz-Rivas filed an application for asylum and withholding of removal. The IJ scheduled a November 16, 2016 hearing to evaluate those claims. About a month out, Diaz-Rivas moved for a continuance to secure additional records from El Salvador and retain a psychological expert, which the IJ denied. In doing so, the IJ remarked that “in these cases, I can tell you, there are a whole slew of them . . . . They have just been reopened and they

are sitting here with motions to continue plenty. The case is going forward, okay?” At the hearing, Diaz-Rivas testified that she feared returning to El Salvador because of the gang threats and the risk that Jose Luis would continue to abuse her. Following about three hours of testimony from Diaz-Rivas and an expert on Central American society, the IJ denied her claims on both grounds. Relevant to this petition, the IJ found that Diaz-Rivas’s testimony was “not credible insofar as she claims that she was raped” by Jose Luis. Regarding the gang threats, the IJ determined that Diaz-Rivas failed to prove that MS-13 persecuted her on account of her membership in her family, which Diaz-Rivas argued was a “particular social group” under the INA. Diaz-Rivas appealed to the BIA, which affirmed the IJ’s decision. First, the BIA upheld the IJ’s adverse credibility finding, noting that Diaz-Rivas’s claims had “evolved significantly since her credible fear interview.” Second, the BIA affirmed the IJ’s determination that MS-13 “was not and would not be centrally motivated” by her “family ties.” In the BIA’s view, the evidence showed that the

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gang threatened Diaz-Rivas and her family as “reprisal for contacting law enforcement” and would have done so “irrespective of whether the individual who

contacted law enforcement was related to the subject of the report.” II. This Court reviews the BIA’s order “as the final judgment, unless the BIA expressly adopted the IJ’s decision.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (per curiam) (citing Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009)). “Where the BIA agrees with the IJ’s reasoning, we

review the decisions of both the BIA and the IJ to the extent of the agreement.” Id.; see also Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (“Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s decision as well.”). In other words, where the BIA affirms the IJ’s determinations for the IJ’s stated reasons, “we review the IJ’s analysis as if it were the Board’s.” Najjar, 257 F.3d at 1284. Although we review the BIA’s legal conclusions de novo, D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004), its factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We thus review the BIA’s findings of fact under the “highly deferential” substantial evidence test, which requires affirming those determinations so long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quoting Najjar, 257 F.3d at 1284). In doing so, “we consider only ‘whether there is substantial evidence for

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the findings made by the BIA, not whether there is substantial evidence for some other finding that could have been, but was not, made.’” Adefemi v. Ashcroft, 386

F.3d 1022, 1029 (11th Cir. 2004) (en banc) (quoting Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1324 (11th Cir. 2001)). Given this generous standard, “we 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 1027. We cannot “‘re-weigh the evidence’ from scratch.” Mazariegos, 241 F.3d at 1323 (quoting Lorisme v. INS, 129 F.3d 1441, 1445 (11th

Cir. 1997)). Indeed, “the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings.” Adefemi, 386 F.3d at 1027. Rather, when “the record could support or contradict the conclusion of the Board, we must affirm its decision.” Recinos v. U.S. Att’y Gen., 566 F.3d 965, 967 (11th Cir. 2009) (citing Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)). III. A. Diaz-Rivas first argues that the BIA erred in upholding the IJ’s adverse credibility determination. As the BIA observed, Diaz-Rivas initially stated that, besides her cousin, “no one else in her family mistreated her” and that, apart from the gang threats, “she did not fear returning to El Salvador for any other reason.” Only later did she claim that her former partner, Jose Luis, had repeatedly raped her and that she feared returning to El Salvador because he could harm her again. The BIA found it “significant” that Diaz-Rivas changed course on “an entire basis

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for fearing return” to her home country, not just a minor detail or event. In the BIA’s view, these inconsistencies supported the IJ’s conclusion that Diaz-Rivas’s

allegations of rape were not credible.2 As a result, she failed to establish her eligibility for asylum or withholding of removal on that basis. See Lyashchynska v. U.S. Att’y Gen., 676 F.3d 962, 967 (11th Cir. 2012) (explaining that an “adverse credibility determination coupled with a lack of corroborating evidence for a claim of persecution means that the applicant’s claim fails”). Based on the entire record, we cannot say that “any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The INA expressly permits an IJ to base credibility findings on inconsistencies across an applicant’s statements, regardless of whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). And this Court has upheld adverse credibility findings based on inconsistencies like the one here, where the applicant’s initial interview statement “was not merely a less detailed version of the facts” provided in later statements, but instead “contradicted” the applicant’s hearing testimony. Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1051 (11th Cir. 2009) (per curiam); see also Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1232 (11th

Cir. 2006) (upholding credibility determination based on “inconsistencies and discrepancies” between credible fear interview, asylum application, and hearing testimony). There is no question that Diaz-Rivas’s claims raise serious allegations

2 Diaz-Rivas also argues that the IJ erred in concluding that her allegations of rape were not credible because the IJ drew an erroneous distinction between rape and “force in marital relationships.” But we need not consider that objection because we are reviewing the decision of the BIA, which did not rely on that reasoning and instead affirmed the IJ’s credibility determination based on the inconsistencies in Diaz-Rivas’s statements. 7 Case: 17-14847 Date Filed: 04/18/2019 Page: 8 of 42

that warrant careful consideration. That said, we are bound by our standard of review, and we cannot say that any reasonable adjudicator would be compelled to

reach a different conclusion than the BIA. See D-Muhumed, 388 F.3d at 818 (explaining that “this court may not substitute its judgment for that of the BIA with respect to credibility findings” (citing Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977))). Diaz-Rivas contends that the BIA should not have seized on her failure to mention Jose Luis’s sexual abuse during the credible fear interview because,

although the INA permits an IJ to base credibility findings on any “relevant factor,” the statute does not explicitly mention omissions of information. 8 U.S.C. § 1158(b)(1)(B)(iii). We need not reach the merits of that statutory interpretation because Diaz-Rivas did not merely omit information; rather, she contradicted herself regarding the very reasons she sought asylum. Cf. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009) (distinguishing between testimony that elaborates on an initial interview and testimony that “cannot be squared” with interview statements). Although we have cautioned against faulting an applicant for not detailing every aspect of her claim during an initial interview, id. at 1279, there is no dispute that “the consistency between” an applicant’s statements may support an adverse credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Tang, 578 F.3d at 1279 (“An IJ may of course consider whether there are contradictions between the airport interview and later testimony.”). At bottom, Diaz-Rivas insists that her initial failure to disclose Jose Luis’s sexual abuse should not diminish her credibility because she had a good reason for

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withholding that information. According to Diaz-Rivas, she did not want to discuss the details of that abuse in front of her daughter, who attended part of the

credible fear interview. That explanation sounds reasonable. It does not, however, compel a conclusion that Diaz-Rivas was credible in light of the contradiction between her statements. Even “tenable” explanations of inconsistencies do not compel reversing credibility determinations. Chen, 463 F.3d at 1233. And taken on its own terms, her rationale still fails to explain why she declined to raise this abuse during the portion of the credible fear interview that her daughter did not

attend. Cf. Shkambi, 584 F.3d at 1051 (finding that applicant’s “fear” of Albanian government did not adequately explain his inconsistencies given that he was assured that his testimony “would not be disclosed to the Albanian government”). Because substantial evidence supports the BIA’s credibility determination, we “must affirm” that conclusion. Adefemi, 386 F.3d at 1029. B. Diaz-Rivas next objects to the BIA’s conclusion that she was not persecuted on account of her membership in a particular social group. In Diaz-Rivas’s view, MS-13 targeted her precisely because of her relationship with her brother-in-law, Fidel. In other words, the gang persecuted her on account of her family membership. For its part, the BIA assumed that a family can qualify as a particular social group but determined that Diaz-Rivas’s family ties did not motivate her persecution. Instead, the evidence showed that MS-13 threatened her as “reprisal for contacting law enforcement following her in-law’s disappearance” and that

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“such reprisal efforts” would have occurred “irrespective of whether the individual who contacted law enforcement was related to the subject of the report.”3

To be clear, an asylum applicant’s protected trait “need not be the only motivation for the persecution.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007). If MS-13 threatened Diaz-Rivas on account of her

police report and her membership in a particular social group, she could still qualify for relief. But where multiple motivations may be at work, the INA instructs that the protected trait must have been “at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). We have not construed the term “central” in any published decision, but the plain meaning of the word in ordinary usage indicates that an applicant’s protected

trait must have been “essential” to her persecution. American Heritage Dictionary 301 (5th ed. 2016); see also New Oxford American Dictionary 281 (3d ed. 2010) (defining “central” to mean, among other things, “principal or essential”). Indeed, other courts have interpreted the term “central” in this same way, including the Ninth Circuit in an opinion on which the dissent relies at length: “A ‘central’ reason is a reason of primary importance to the persecutors, one that is essential to

3 As support for its conclusion, the BIA cited Matter of L-E-A-, 27 I. & N. Dec. 40 (BIA 2017), which held that a family can constitute a “particular social group” in certain circumstances. After the close of briefing in this appeal, the Acting Attorney General directed the BIA to refer Matter of L-E-A- to him for reconsideration, which “automatically stayed” that decision pending his review. 27 I. & N. Dec. 494, 494 (A.G. 2018). That stay does not preclude our resolution of this case because substantial evidence supports the BIA’s conclusion that Diaz-Rivas was not persecuted because of her family ties—in other words, she fails to qualify for asylum and withholding of removal regardless of whether her family constitutes a “particular social group.” To conclude otherwise, we would need to decide ourselves whether an applicant’s family constitutes a particular social group in these circumstances—a task that the Attorney General is poised to undertake and that the dissent has not carried out. 10 Case: 17-14847 Date Filed: 04/18/2019 Page: 11 of 42

their decision to act.” Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (emphasis added). In other words, a motive qualifies as central “if the persecutor

would not have harmed the applicant if such motive did not exist.” Id. The BIA has also adopted that view, explaining that “an alien must demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.” Matter of N-M-, 25 I. & N. Dec. 526, 531 (BIA 2011) (citing Parussimova, 555 F.3d at 741). Even Diaz-Rivas agrees that a central reason must be an “essential” one. See Pet’r Reply Br. at 15 (arguing that a central reason must be an “essential

(as opposed to a mere remote, non-essential reason)” for the persecution). We therefore consider whether substantial evidence supports the conclusion that Diaz- Rivas’s family ties were not an essential reason for the gang threats. Diaz-Rivas’s own testimony suggests that MS-13 would have threatened her for reporting Fidel’s disappearance whether or not she was related to him. Diaz- Rivas testified that, after the gang “disappeared” Fidel—in other words, killed him—she and other family members “looked for him” and “reported it to the police.” In response, the gang “started threatening” to “disappear” the family “for looking for” Fidel. The fact that MS-13 only started threatening Diaz-Rivas after she reported Fidel’s disappearance supports the inference that the gang did not target her because of her family ties. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 823 (11th Cir. 2007) (finding that a family’s political opinion did not motivate persecution that occurred “only after they refused to pay” a tax and “long after” the persecutors “would have imputed a political opinion to” the family). To put a finer point on it, the gang did not start threatening her until after she filed the report,

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even though it knew about her family ties well before that. And operating, as we must, under a highly deferential standard of review, we certainly cannot say that

“any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Nor does other evidence in the record compel the dissent’s view that MS-13 would have persecuted Diaz-Rivas based on her family ties alone. See Dissenting Op. at 32. To the contrary, it demonstrates that the gang’s threats were conditional: Diaz-Rivas stated that the “threats started after” Fidel disappeared and

that the gang told her that “if we kept looking for him . . . the same thing was going to happen to us.” The fact that MS-13 would have stopped persecuting Diaz-Rivas so long as she stopped her search makes plain that, at least under the record before us, her family ties were not a central reason for the threats. The dissent points out that Diaz-Rivas stated during her credible fear interview that MS-13 members were unhappy even before she reported them to the police “because they wanted more and more rent”—that is, extortion money. Even so, that is less evidence that the gang punished Diaz-Rivas for her family membership, as opposed to her own failure to pay “rent.” To the extent that the gang threatened Diaz-Rivas because of her refusal to pay extortion, that might show that she was “the victim of criminal activity,” but it would not “constitute evidence of persecution based on a statutorily protected ground.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (citing Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004)). In any event, the record does not compel the

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conclusion that the gang’s earlier unhappiness with the family motivated—much less centrally motivated—its subsequent threats on Diaz-Rivas’s life.4

Indeed, Diaz-Rivas herself testified that “many people disappear in El Salvador because they make a report to the police” without suggesting that such reprisals depend on the family background of the person who made the report. So

too here, with Diaz-Rivas explaining that MS-13 targeted her “because” she involved the police and threatened to kill her “for looking for” her brother-in- law—without stating that her familial connection also mattered to the gang. Her testimony is not surprising; we find it hard to conclude that kinship ties are necessary to provoke retaliation when gang members learn that someone— anyone—has reported their crimes to the police. To be sure, Diaz-Rivas may not

have reported Fidel’s disappearance in the first place absent their familial ties. “The issue before us,” however, is the “motivation of the alleged persecutors” in targeting Diaz-Rivas, not the motivation of Diaz-Rivas in looking for Fidel. Rivera, 487 F.3d at 821 (emphasis added). In sum, we find that substantial evidence supports the BIA’s factbound conclusion that Diaz-Rivas’s family ties were not a central reason for the gang threats. The dissent appears ready to reverse the BIA so long as there exists some plausible—even possible—interpretation of the record that diverges from the agency’s conclusion. Our deferential mode of review, however, requires much

4 The dissent also faults the BIA because certain lines of testimony were not “mentioned or discussed” in its decision. Dissenting Op. at 32. Yet we have consistently explained that the agency need not specifically address “each piece of evidence the petitioner presented.” Shkambi, 584 F.3d at 1048 (citation omitted). And here, the BIA expressly based its nexus determination on “the record in its entirety,” citing both Diaz-Rivas’s and her expert’s testimony. 13 Case: 17-14847 Date Filed: 04/18/2019 Page: 14 of 42

more. Supra, at 5–6. That remains true “even if the evidence could,” as the dissent insists that it does, “support multiple conclusions.” Adefemi, 386 F.3d at

1029; see also, e.g., Perlera-Escobar v. Exec. Office for Immigration, 894 F.2d 1292, 1299 (11th Cir. 1990) (“Although other inferences about the guerrillas’ motives may be drawn, it is not our task to do so as long as substantial evidence supports the BIA’s conclusion.”). C. Diaz-Rivas also lodges two constitutional complaints about the IJ’s

decision—namely, that the IJ denied her due process and equal protection of the laws.5 Taking those issues in turn, we first conclude that the IJ afforded Diaz- Rivas due process, which, in the removal context, “requires that aliens be given notice and opportunity to be heard.” Fernandez-Bernal, 257 F.3d at 1310 n.8 (citing Reno v. Flores, 507 U.S. 292, 306 (1993)); see also Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th Cir. 2011) (per curiam) (“Due process is satisfied

5 This Court has held that, unlike “deportable” aliens, “excludable” aliens (those effectively stopped at the border) “have no constitutional rights with respect to their applications for admission, asylum, or parole.” Jean v. Nelson, 727 F.2d 957, 984 (11th Cir. 1984). That said, we decided Jean before Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which eliminated “many of the legal distinctions between ‘deportation’ and ‘exclusion’ proceedings” and “merged those two proceedings into the more general ‘removal’ proceedings.” Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1306 n.3 (11th Cir. 2001). Because this Court has subsequently and repeatedly held that “the Fifth Amendment entitles petitioners in removal proceedings to due process of the law,” without distinguishing between deportable and excludable aliens, we think that Diaz-Rivas has stated at least colorable constitutional claims, regardless of whether she might be deemed a deportable or excludable alien. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) (per curiam) (citing Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007)). We thus retain jurisdiction to consider the merits of her constitutional arguments. See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 n.2 (11th Cir. 2007) (explaining that this Court retains jurisdiction to review “colorable” constitutional claims, meaning ones that “have some possible validity” (quoting Mehilli v. Gonzales, 433 F.3d 86, 94 (1st Cir. 2005))). 14 Case: 17-14847 Date Filed: 04/18/2019 Page: 15 of 42

only by a full and fair hearing.” (quoting Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987))). Diaz-Rivas does not suggest that she lacked notice of the

government’s charges or was refused a hearing on the merits—indeed, the IJ allowed her (through counsel) to present evidence, including expert testimony, for about three hours. See Alhuay, 661 F.3d at 549 (rejecting due process objection where the IJ gave the petitioner “ample opportunity to testify and to present evidence on her behalf”). Instead, Diaz-Rivas contends that the IJ did not give her a fair shake,

insisting that he disregarded key components of her arguments and evidence. This Court has occasionally vacated agency decisions when they were “so lacking in reasoned consideration and explanation that meaningful review was impossible.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015); see also Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (explaining that the IJ “must ‘consider the issues raised and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted’” (quoting Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992))). In these situations, the IJ’s decision must be so deficient in reasoning that “we are unable to review” it, such as where the IJ “misstated the contents of the record,” made findings “without logical explanation,” and utilized reasoning “unresponsive to any argument reflected in the record.” Tan, 446 F.3d at 1375–77. We think that the IJ’s decision steered clear of those pitfalls. Diaz-Rivas’s arguments essentially dispute the IJ’s refusal to credit (as opposed to consider) certain evidence as probative or persuasive. See, e.g., Sama v. U.S. Att’y Gen., 887

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F.3d 1225, 1234 (11th Cir. 2018) (rejecting due process argument where the petitioner merely disputed “the weight the Board gave to different portions of the

record”); Jeune v. U.S. Att’y Gen., 810 F.3d 792, 804 (11th Cir. 2016) (“That the BIA reached a conclusion different from that of the Petitioner regarding the import of the background evidence does not mean that the BIA’s decision was not supported by reasoned consideration.”). As just one example, Diaz-Rivas cites her belief that the IJ “disregarded” her expert’s testimony as one of the IJ’s several “misstatements of the record.” Yet the record shows that the IJ considered and

specifically recounted that testimony in rendering his decision. Cf. Sama, 887 F.3d at 1235 (noting that the agency “explicitly considered at least some of the evidence that” the petitioner argued it ignored). In fact, the IJ expressly stated that he did “not mean to ignore the testimony of” Diaz-Rivas’s expert, but simply did “not find that the expert’s testimony” was “sufficient for the Court” to rule in her favor. The fact that this evidence failed to carry the day does not mean that the IJ misstated or refused to consider it. See Sama, 887 F.3d at 1234; Jeune, 810 F.3d at 804. Diaz-Rivas also advances a few more specific complaints, none of which amounts to a due process violation. She argues that the IJ failed to conduct an “individualized determination” of her claim and exhibited “bias” against Salvadoran women based on his reference to a “whole slew” of “these cases” and observation that “nobody wants to go forward” on them. The record, however, contains no support for her speculation that this remark refers to cases involving Salvadoran women (in fact, it appears that the IJ was likely referencing cases that

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were reopened based on ineffective assistance of counsel). Moreover, Diaz-Rivas asserts that the IJ should have granted her a continuance so that she could secure

additional records from El Salvador and retain a psychological expert. We have, however, repeatedly held that “the failure to receive relief that is purely discretionary in nature,” such as a continuance, does not violate due process. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (quoting Garcia v. U.S. Att’y Gen., 329 F.3d 1217, 1224 (11th Cir. 2003)); see also Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006) (holding that petitioners’ due

process rights were not violated “when the IJs did not continue their removal proceedings”). D. Finally, Diaz-Rivas argues that the Atlanta Immigration Court (AIC) denied her equal protection because it grants asylum claims at a much lower rate on average than other Immigration Courts throughout the country. 6 According to

Diaz-Rivas, the AIC’s “shockingly low asylum grant rate of only 2% compared to the average grant rate of 43% in other Immigration Courts” reflects a discriminatory intent against asylum applicants in Atlanta “relative to similarly-

situated asylum claimants in other Immigration Courts throughout the country.”

6 We agree with the dissent that the agency could have considered an as-applied challenge insofar as Diaz-Rivas contends that a constitutional violation occurred in her case. We disagree, however, that she has done so. But we would not need to remand in any event given that this Court reviews “constitutional challenges de novo.” Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003). And we note that the BIA cannot entertain just any systemic challenge to the patterns and practices of an immigration court. See 8 C.F.R. § 1003.1(b)(2) (confining the BIA’s appellate authority, as relevant here, to “Decisions of Immigration Judges in removal proceedings”). 17 Case: 17-14847 Date Filed: 04/18/2019 Page: 18 of 42

Notwithstanding Diaz-Rivas’s concern, we cannot say that an equal protection violation occurred in this case based on those statistics alone. Even if we assumed

that these numbers betray a troubling approach to asylum adjudication in Atlanta generally, they do not demonstrate any discriminatory intent in denying Diaz- Rivas’s claims. Moreover, we have previously rejected similar equal protection arguments based on “differing treatment between IJs in Atlanta and those in other jurisdictions.” Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1218 (11th Cir. 2006) (per curiam); see also Zafar, 461 F.3d at 1367 (rejecting equal protection argument

based on the practice of IJs in “other jurisdictions” compared to IJs in Atlanta). We decline to change course here. *** In reaching these conclusions, we do not discount the threats that Diaz-Rivas has endured or the danger that she faces. We hold only that the BIA did not err in finding that Diaz-Rivas failed to meet the requirements for asylum and withholding of removal. And given our standard of review, we cannot reweigh the merits of that debate for ourselves. PETITION DENIED.

18 Case: 17-14847 Date Filed: 04/18/2019 Page: 19 of 42

JORDAN, Circuit Judge, concurring in part and dissenting in part:

I concur in the majority’s affirmance of the adverse credibility finding

concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied

due process. After reviewing the record and the facts surrounding MS-13’s

persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA

erred in ruling that family ties were not at least one of the central reasons for Ms.

Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA

concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore

respectfully dissent in part.

I

The majority concludes that family ties were not a central reason why MS-13

persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have

independently persecuted her for reporting her brother-in-law’s disappearance to the

authorities. In my view, this construes the “at least one central reason” standard too

narrowly—in conflict with our sister circuits—and ignores the realities of a mixed-

motive analysis.

A

To interpret the “at least one central reason” standard, I begin with the text of

8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The

relevant language states that “the applicant is a refugee” if he or she can “establish 19 Case: 17-14847 Date Filed: 04/18/2019 Page: 20 of 42

that race, religion, nationality, membership in a particular social group, or political

opinion was or will be at least one central reason for persecuting the applicant.” §

1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or

is not a central reason, but the language preceding the term “central” is instructive,

and indicates that there can be more than one central reason. See INS v. Phinpathya,

464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary

meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an

intent to consider mixed motives, and the introductory phrase “at least” further

clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA

2007) (noting that an earlier proposed version of the standard read “a central reason,”

but that Congress modified it to read “at least one central reason”).

Although we have not had the occasion to interpret this language in a

published opinion, several other courts have. For example, the Fourth Circuit has

said that, based on the statute’s text, an applicant’s “persecution may be on account

of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d

53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova

v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by

more than one central reason[.]”). Indeed, other circuits have reversed immigration

courts for failing to consider these textual distinctions. See Acharya v. Holder, 761

F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into

20 Case: 17-14847 Date Filed: 04/18/2019 Page: 21 of 42

‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner

v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance

improperly demanded that persecution occur solely due to a protected basis. There

is no such requirement in the statute[.]”).

The history of the standard is also instructive. Prior to Congress passing the

REAL ID Act in 2005, an applicant could demonstrate that he or she had been

persecuted on account of a protected ground by showing that “the persecution was,

at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d

1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard,

an applicant could avoid removal by showing that one of the persecutor’s motives

was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24

I. & N. Dec. at 211, 214 n.9. See also In Re S-P-, 21 I. & N. Dec. 486, 496 (BIA

1996). A few courts have recognized that the current “at least one central reason”

standard “places a more onerous burden on the asylum applicant than the ‘at least in

part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also

Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself

recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-,

24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because

“[i]n many cases, of course, persecutors may have more than one motivation.” Singh

v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).

21 Case: 17-14847 Date Filed: 04/18/2019 Page: 22 of 42

B

With the text of the statute and its history in mind, I turn to what a “central”

reason looks like. “[One] definition of the word ‘central’ includes

‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at

212 (second alteration in original). Some dictionaries define “central” as being “of

primary importance” and note that “essential” and “principal” are synonyms.

Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some

courts and the BIA have explained what a central reason is not. For example, a

protected ground cannot “play a minor role” or be merely “incidental or tangential

to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation

marks omitted). Stated differently, a central reason is not “minor” and is not

“peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova,

555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009).

Notably, however, these limitations (essential, principal, not incidental, etc.) only

express what it means for a reason to be “central.” The preceding phrase “at least

one” still requires a mixed-motive analysis when the facts of the case warrant.

In a mixed-motive case, to show that a protected ground was “at least one

central reason,” the applicant is not required to show that the protected reason was

the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.

Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22 Case: 17-14847 Date Filed: 04/18/2019 Page: 23 of 42

even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y

Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not

required to] show that a protected ground for persecution was not ‘subordinate’ to

any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the

statute’s language to not require that the applicant show the protected ground

“account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or

dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at

least one central’ reason for persecution” and would “vitiate[ ] the possibility of a

mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be

nearly impossible for an applicant to show that one reason motivated the persecutor

more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir.

2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the

legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742

(“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what

motivated them to act,’ and we do not believe the Real ID Act demands such an

unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).

II

In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz-

Rivas and her family. The first, in time, was the family’s failure to pay “rents” to

the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s 23 Case: 17-14847 Date Filed: 04/18/2019 Page: 24 of 42

disappearance to the authorities. These events transpired quickly, as the brother-in-

law refused to pay MS-13 sometime in March of 2015, he was “disappeared” around

March 16, 2015, and the family reported his disappearance the very next day.

The BIA, in affirming the IJ’s determination that Ms. Diaz-Rivas failed to

establish the required nexus between her persecution and family ties, determined that

the predominant reason why MS-13 threatened Ms. Diaz-Rivas and her family was

because they involved the authorities. But the BIA committed an error of law by

failing to conduct a proper mixed-motive analysis. Based on my review of the

record, there is no way to accurately determine which reason was more or less MS-

13’s motivation, and the “at least one central reason” standard does not require us—

or Ms. Diaz-Rivas—to attempt such a futile endeavor. Again, Ms. Diaz-Rivas did

not need to show that her kinship was MS-13’s primary or dominant motivation. See

Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova,

555 F.3d at 740–41. Because the BIA and IJ misapplied the relevant legal standard,

I would reverse and remand for application of the correct standard.

Like the IJ and the BIA, the majority concludes that Ms. Diaz-Rivas’ family

ties were not “central,” but it articulates a slightly different rationale. The majority

rules that “central” means “essential,” and concludes that Ms. Diaz-Rivas’ family

24 Case: 17-14847 Date Filed: 04/18/2019 Page: 25 of 42

ties were not essential to her persecution because MS-13 would have persecuted her

regardless of her family’s refusal to pay rents due to the fact she reported her brother-

in-law’s disappearance to the authorities. See Maj. Op. at 12–13. As I read its

opinion, the majority essentially creates a rule that, if an unprotected ground would

have been independently sufficient to instigate the applicant’s persecution, then the

protected reason claimed by the applicant cannot be “central.” The majority cites

no authorities to support such a rule, and the case it does rely on does not even

interpret the “at least one central reason” standard. See Rivera v. U.S. Att’y Gen.,

487 F.3d 815, 821 (11th Cir. 2007).

On its face, the majority’s rule replaces the phrase “at least one central” in the

statute with the word “essential.” See Maj. Op. 11. In doing so, the majority relies

on the fact that Ms. Diaz-Rivas used the word “essential” in her reply brief. Id. But

we are not bound by a party’s concession in our interpretation of a statute. See

Massachusetts v. United States, 333 U.S. 611, 624–25 & n.23 (1948). That is

because “[w]e do not cede our authority to interpret statutes to the parties or their

attorneys.” See Dana’s R.R. Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1255 (11th

Cir. 2015) (Ed Carnes, C.J., dissenting). For example, the majority’s interpretation

of the “at least one central reason” may not apply to a future litigant who clearly

articulates that “essential” is merely a synonym for “central” and not a wholesale

replacement for the standard. I agree that synonyms can be helpful in understanding

25 Case: 17-14847 Date Filed: 04/18/2019 Page: 26 of 42

the terms in a statute, but if Congress intended for us to consider whether an

unprotected reason would have independently caused the applicant’s persecution, it

could have (and, I submit, would have) used the term “essential.” It did not. Just as

we do not “soften the import of Congress’ chosen words even if we believe the words

lead to a harsh outcome,” we should not exchange Congress’ chosen words when

the text is actually beneficial to the litigant. See Lamie v. U.S. Tr., 540 U.S. 526,

538 (2004).

Barring an applicant from protection based on the existence of an unprotected

ground takes the statute’s “at least one central reason” standard and recasts it into a

“the central reason” standard. See Acharya, 761 F.3d at 299. In practice, the

majority’s proposal requires the applicant to show that the protected reason is the

persecutor’s “primary” or “dominant” reason. Both of these are improper. See id.;

Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova,

555 F.3d at 740–41.

The Fourth Circuit, in multiple cases, has considered whether family ties were

“at least one central reason” for MS-13’s decision to persecute an applicant. These

cases include Salgado-Sosa v. Sessions, 882 F.3d 451, 457–59 (4th Cir. 2018);

Zavaleta-Policiano, 873 F.3d at 247–49; Cordova v. Holder, 759 F.3d 332, 339–40

26 Case: 17-14847 Date Filed: 04/18/2019 Page: 27 of 42

(4th Cir. 2014); and Crespin-Valladares v. Holder, 632 F.3d 117, 127–28 (4th Cir.

2011). See also Hernandez-Avalos, 784 F.3d at 949 (concerning the “Mara 18”

gang). These decisions run contrary to the majority’s analysis here.

For example, in Salgado-Sosa, 882 F.3d at 457–59, the Fourth Circuit

reviewed the BIA’s determination that the applicant’s family ties were not a central

reason for his persecution. There, the applicant and his family refused to pay MS-

13’s “war tax,” causing the gang to attack the family. See id. at 454. The applicant

and his stepfather reported one attack to the police and later testified against the

gang. See id. In retaliation, the gang attacked the applicant’s family home and the

family fought back, injuring at least one of the gang members. See id. The IJ

concluded, and the BIA affirmed, that the gang was motivated by the applicant

refusing to pay the tax and taking action against the gang, as opposed to his family

ties. See id. at 455–456. The Fourth Circuit reversed. Although informing the

police, testifying, and fighting back against MS-13 were among the motives to

persecute the applicant, the Fourth Circuit concluded that “[t]he record compels the

conclusion that at least one central reason for [the applicant’s] persecution is

membership in his family[.]” Id. at 453, 457–58. In my mind, Salgado-Sosa is

virtually indistinguishable from the facts here, and I would follow it. See also

Crespin-Valladares, 632 F.3d at 127 (holding that the BIA erred by concluding that

27 Case: 17-14847 Date Filed: 04/18/2019 Page: 28 of 42

the applicant’s relation to a witness who testified against MS-13 was not a central

reason because the gang was also motivated by the applicant’s own testimony).

In Hernandez-Avalos, 784 F.3d at 947, the applicant applied for asylum after

gang members in El Salvador threatened her for refusing to allow her son to join the

gang. The BIA found that her relationship with her son was not a central reason the

gang persecuted her, and that she was threatened “because she would not consent to

her son engaging in a criminal activity.” Id. at 949. The Fourth Circuit rejected the

BIA’s “excessively narrow reading” of the standard and said that it relied on “a

meaningless distinction under the facts.” Id. at 949, 950. It then concluded that the

applicant satisfied the nexus requirement because her relation to her son was at least

one of “multiple central reasons for the threats [she] received.” Id. at 950 (emphasis

added). See also Cordova, 759 F.3d at 339–40.

Cases applying the “at least one central reason” standard to other protected

grounds similarly contradict the majority’s interpretation. See Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (sexual orientation); Oliva,

807 F.3d at 58, 60–61 (moral and religious beliefs); Castro v. Holder, 597 F.3d 93,

100–01 (2d Cir. 2010) (political opinion); De Brenner, 388 F.3d at 635–37 (political

opinion). In these cases, our sister circuits ruled that the existence of an unprotected

ground “would not be conclusive[.]” Castro, 597 F.3d at 103. That is because an

applicant “need only demonstrate that [her protected reason] was ‘at least one central 28 Case: 17-14847 Date Filed: 04/18/2019 Page: 29 of 42

reason’ for the abuse; [s]he need not show it was the only reason.” Bringas-

Rodriguez, 850 F.3d at 1073.

In all of these cases, the IJ and/or BIA pointed to one or more unprotected

reasons why the applicant was persecuted, and in all of these cases, our sister circuits

concluded that the IJ and/or BIA interpreted the “at least one central reason” standard

too narrowly. The same result, I believe, is warranted here. The majority’s view is

irreconcilable with the principles that a protected reason can be one of multiple

central reasons and that the existence of an unprotected motive does not preclude the

applicant from showing that the protected ground was also central. See, e.g.,

Hernandez-Avalos, 784 F.3d at 950 (citing Cordova, 759 F.3d at 339).

C

The majority, like the IJ and the BIA, goes to great lengths to assert that Ms.

Diaz-Rivas’ decision to report her brother-in-law’s disappearance was the central

reason she was persecuted. See Maj. Op. at 12–14. This misses the point. The text

of § 1158(b)(1)(B)(i) compels us to recognize that the existence of an unprotected

central reason does not defeat her claim because a second central reason may justify

asylum. “When an asylum-seeker claims that a persecutor had multiple motivations,

only some of which are based on protected grounds, the immigration judge cannot

merely attribute the persecution to a non-protected ground.” Gomez-Rivera v.

29 Case: 17-14847 Date Filed: 04/18/2019 Page: 30 of 42

Sessions, 897 F.3d 995, 1000 (8th Cir. 2018) (Kelly, J., dissenting) (citing

Marroquin-Ochoma, 574 F.3d at 577). “Rather, it remains necessary to carefully

examine the record to determine whether the evidence shows that the persecution

also occurred on account of a protected ground.” De Brenner, 388 F.3d at 636.

There is some support for considering whether a particular motive was an

independently sufficient reason, but only as applied to the protected reason claimed

by the applicant—not to the unprotected one. In Parussimova, 555 F.3d at 741, the

Ninth Circuit ruled that a reason is central if (a) “the persecutor would not have

harmed the applicant if such motive did not exist,” or (b) “that motive, standing

alone, would have led the persecutor to harm the applicant.” The majority cites only

the initial portion of the Ninth Circuit’s disjunctive standard, reasoning that MS-13

would have still retaliated against Ms. Diaz-Rivas for her reporting her brother-in-

law’s disappearance absent her family ties, but it ignores the second. See Maj. Op.

at 11. In addition to not being faithful to what Parussimova held, the majority’s

approach fails both in practice and in theory.

First, MS-13 would not have targeted Ms. Diaz-Rivas, for either reason,

absent her family ties because she would not have reported her brother-in-law

missing absent those family ties. Take Temu v. Holder, 740 F.3d 887, 891–92 (4th

Cir. 2014), where the BIA had concluded that the applicant was beaten not due to

his mental illness, but as a result of erratic behavior caused by his mental illness. 30 Case: 17-14847 Date Filed: 04/18/2019 Page: 31 of 42

The Fourth Circuit reversed, saying that it “struggle[d] to see how a rational

factfinder” could reach that conclusion, and that the BIA’s reasoning “demand[ed]

logical acrobatics.” Id. at 892. Citing Ms. Diaz-Rivas’ decision to report her

brother-in-law’s disappearance, while discounting the causal relationship between

her kinship and that decision, takes an “overly restrictive view of [Ms. Diaz-Rivas’]

case.” Oliva, 807 F.3d at 59 (“A close examination of the record illuminates the

inextricable relationship between Oliva’s membership in his proposed social groups

and his refusal to pay rent.”). See also De Brenner, 388 F.3d at 637 (highlighting

the BIA’s failure to acknowledge the causal relationship between the protected

ground and the unprotected ground); Hernandez-Avalos, 784 F.3d at 950 (same).

Second, the majority fails to consider evidence in the record when it suggests

that Ms. Diaz-Rivas never “stat[ed] that her familial connection also mattered to the

gang.” See Maj. Op. at 14. During her credible fear interview, Ms. Diaz-Rivas

stated that she was being persecuted by MS-13 based on her family ties before she

went to the authorities. Specifically, the interviewer asked Ms. Diaz-Rivas whether

MS-13 “became upset with your family after you asked for protection from the

military.” Ms. Diaz-Rivas responded: “Yes.” The interviewer then clarified by

asking: “Was [MS-13] upset with your family once they found out that you had

contacted the family [sic] or were they unhappy with you even before that?” Ms.

Diaz-Rivas responded: “No, they already were [mad] because they wanted more and

31 Case: 17-14847 Date Filed: 04/18/2019 Page: 32 of 42

more rent.” This testimony is supported by the undisputed fact that MS-13

“disappeared” Ms. Diaz-Rivas’ brother-in-law for refusing to pay rents before there

was any motive to retaliate against the family for involving the authorities. I note

that Ms. Diaz-Rivas also called an expert witness to testify that her family’s refusal

to pay rents, apart from going to the authorities, put her at risk of persecution. See

W.G.A. v. Sessions, 900 F.3d 957, 966 (7th Cir. 2018) (citing the “timing of the

persecution” and expert reports to conclude that the applicant met the nexus

requirement). This evidence strongly suggests that “[Ms. Diaz-Rivas’ family ties],

standing alone, would have led [MS-13] to harm [her].” Parussimova, 555 F.3d at

741.

Ms. Diaz-Rivas’ statements and expert testimony, to my knowledge, are the

only evidence in the record as to whether Ms. Diaz-Rivas would have been

persecuted by MS-13 based only on her family ties. But that evidence is not

mentioned or discussed, in that context, by the IJ or the BIA. Compare Zavaleta-

Policiano, 873 F.3d at 248–49 (concluding that the BIA failed to address the

applicant’s statement that MS–13 started threatening her immediately after her father

fled to Mexico), with Gomez-Garcia v. Sessions, 861 F.3d 730, 734 (8th Cir. 2017)

(affirming the BIA’s conclusion that the applicant’s political affiliation was not

central because “[t]here [was] no evidence in the record that MS-13 threatened [the

applicants] before they reported [the gang’s] burglary”).

32 Case: 17-14847 Date Filed: 04/18/2019 Page: 33 of 42

As the majority points out, we defer to the BIA’s interpretation of the facts,

even if our own interpretation would support a different conclusion. We do not,

however, defer to the agency’s determination that certain testimony did not warrant

consideration. This is especially true if that testimony is the evidence in the record

that the applicant’s alleged reason was central to her persecution. See W.G.A., 900

F.3d at 967; Zavaleta-Policiano, 873 F.3d at 248–49. It is our responsibility to

“ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the

factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009).

I also disagree with the majority’s repeated claim that, because MS-13

threatened Ms. Diaz-Rivas after she reported the disappearance, we can necessarily

infer that that is the reason that MS-13 persecuted her. See Maj. Op. at 12–13. With

our standard of review in mind, the IJ and the BIA did not cite the fact that MS-13

only threatened Ms. Diaz-Rivas after she reported her brother-in-law missing to

conclude she did not meet the nexus requirement. Although the IJ and BIA noted

the sequence of events leading to Ms. Diaz-Rivas’ claims, the majority now seizes

on this undisputed chronological fact to support its new conclusion that Ms. Diaz-

Rivas going to the authorities was the only central reason she was persecuted.

Moreover, the short timing between these events makes it impossible to

conclude that MS-13 was not also motivated by her family’s refusal to pay rents. In

early March of 2015, Ms. Diaz-Rivas’ brother-in-law refused to pay rents, causing 33 Case: 17-14847 Date Filed: 04/18/2019 Page: 34 of 42

the gang to quickly threaten and disappear him, and Ms. Diaz-Rivas reported his

disappearance the very next day. By comparison, the majority cites Rivera, 487 F.3d

at 823, for its timing argument, but in that case the persecution occurred “several

years . . . after [the persecutor] would have imputed [the applicant’s] political

opinion.” And to the extent that the majority points to Ms. Diaz-Rivas’ “own failure

to pay ‘rent’” as another reason why she was persecuted, that argument contradicts

the record. See Maj. Op. at 13. The IJ’s order and Ms. Diaz-Rivas’ testimony make

clear that Ms. Diaz-Rivas’ brother-in-law, the patriarch of the family, refused to pay

rents to MS-13, and Ms. Diaz-Rivas alleges that she was persecuted because of her

family’s refusal to pay rents. See A000387, A000391 (“In this case, the respondent

was never asked to pay any extortion. The demand was made to Felix, who is

respondent’s brother-in-law.”). See also A000089, A000434.

For these reasons, I would hold that the BIA’s determination—that “[t]here is

no indication [that MS–13] had an animus against [Ms. Diaz-Rivas] and her family

members based on their biological ties, historical status, or other features unique to

the family unit”—misapplies the “at least one central reason” standard and is not

based on substantial evidence. I would therefore reverse the BIA’s determination

that Ms. Diaz-Rivas’ family ties were not at least one central reason for her

34 Case: 17-14847 Date Filed: 04/18/2019 Page: 35 of 42

persecution and remand the case for the BIA to determine whether her family unit is

a “particular social group” under the statute. 1

III

Ms. Diaz-Rivas also contends that the Atlanta immigration court treats asylum

claims dissimilarly compared to immigration courts around the country, in violation

of her equal protection rights under the Fifth Amendment. Ms. Diaz-Rivas raised

the same equal protection claim before the BIA, but the BIA dismissed it, stating

that it “lack[ed] the authority to consider [it].” The BIA cited Matter of C-, 20 I. &

N. Dec. 529, 532 (1992), where it ruled that an IJ and the BIA “lack jurisdiction to

rule upon the constitutionality of the [Immigration and Nationality] Act and the

regulations.” See also Johnson v. Robinson, 415 U.S. 361, 368 (1974) (noting “the

principle that adjudication of the constitutionality of congressional enactments has

generally been thought beyond the jurisdiction of administrative agencies”)

(alteration omitted).

1 The majority notes that I do not resolve whether Ms. Diaz-Rivas’ family constitutes a “particular social group.” See Maj. Op. at 10 n.3. It seems to me that this is the correct approach. Like other circuits that have faced this issue, I would remand it to the BIA. See Oliva, 807 F.3d at 62; Flores- Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015); Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (collecting cases where the BIA addressed whether family was a particular social group). In any event, “every circuit to have considered the question has held that family ties can provide a basis for asylum.” Crespin–Valladares, 632 F.3d at 125. See also Matter of L-E-A-, 27 I. & N. Dec. 40, 43 (BIA 2017) (citing cases from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits). So, if the majority is looking for legal guidance on this issue, there is plenty of it.

35 Case: 17-14847 Date Filed: 04/18/2019 Page: 36 of 42

The prohibition on Article I tribunals adjudicating the constitutionality of a

congressional enactment does not bar consideration of Ms. Diaz-Rivas’ equal

protection claim. Ms. Diaz-Rivas does not argue that a federal law is

unconstitutional, but rather that a particular immigration court is unconstitutionally

discriminating against asylum applicants in the way that it applies a federal law. See

McGrath v. Weinberger, 541 F.2d 249, 251 (10th Cir. 1976) (“A fundamental

distinction must be recognized between constitutional applicability of legislation to

particular facts and constitutionality of the legislation . . . . We commit to

administrative agencies the power to determine constitutional applicability, but we

do not commit to administrative agencies the power to determine constitutionality

of legislation.”) (quoting 3 K. Davis, Administrative Law Treatise § 20.04, at 74

(1958)). See also Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136, 1139

(3d Cir. 1979) (concluding that an Article I review commission had jurisdiction to

consider a motion to suppress under the Fourth Amendment “not by reviewing the

constitutionality of its statute but by interpreting the statute and by applying

constitutional principles to specific facts”).

Based on my understanding of the relevant law, there is no general prohibition

on the BIA considering constitutional issues, apart from constitutional challenges to

particular statutes which would raise separation of powers concerns. In fact, the BIA

has ruled on similar constitutional challenges in the past. See Matter of Awadh, 15

36 Case: 17-14847 Date Filed: 04/18/2019 Page: 37 of 42

I. & N. Dec. 775, 777 (BIA 1976) (ruling on the respondent’s claim that an IJ

enforced a statute discriminatorily, but stating that it lacked jurisdiction to consider

the constitutionality of the same statute). And other BIA opinions suggest that it has

jurisdiction to consider some equal protection claims. See In Re Salazar-Regino, 23

I. & N. Dec. 223, 231–32 (BIA 2002); In Re Delia Lazarte-Valverd, 21 I. & N. Dec.

214, 219–21 (BIA 1996) (Schmidt, Chairman, concurring); Matter of Moreira, 17 I.

& N. Dec. 370, 373 (BIA 1980); Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976).

See also Matter of Gutierrez, 16 I. & N. Dec. 226, 227 (BIA 1977) (considering a

Sixth Amendment claim).

In any event, we have jurisdiction to review constitutional claims raised

during immigration proceedings. See 8 U.S.C. § 1252(a)(2)(D) (allowing the

appropriate court of appeals to “review [ ] constitutional claims or questions of law

raised upon a petition for review”); Moore v. Ashcroft, 251 F.3d 919, 923–24 (11th

Cir. 2001) (considering an equal protection claim on appeal from the BIA). On

appeal, Ms. Diaz-Rivas requests that we remand her asylum claims to the

immigration court in San Francisco, California, where her attorneys are located.

Although I do not believe we have ordered or encouraged the BIA to remand a case

to another immigration court, at least one court has afforded similar relief. See

Floroiu v. Gonzalez, 481 F.3d 970, 976 (7th Cir. 2007) (per curiam) (“strongly

encourag[ing] the BIA to assign the [applicants’] case to a different judge on

37 Case: 17-14847 Date Filed: 04/18/2019 Page: 38 of 42

remand”); 28 U.S.C. § 2106 (granting appellate courts the power to “require such

further proceedings to be had as may be just under the circumstances”).2

The due-process clause of the Fifth Amendment contains an implied equal

protection component that prevents federal government officials from acting with

discriminatory animus. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). “The

constitutional guarantee of equal protection under the law has been held applicable

to aliens as well as citizens for over a century.” Yeung v. I.N.S., 76 F.3d 337, 339

(11th Cir. 1995), as modified on reh’g (11th Cir. 1996) (citing Yick Wo v. Hopkins,

118 U.S. 356, 373–74 (1886)). See also Plyler v. Doe, 457 U.S. 202, 210 (1982)

2 Another avenue for relief may be for Ms. Diaz-Rivas to file an action in an appropriate federal district court. For example, 5 U.S.C. § 702—a provision of the Administrative Procedure Act— provides that “[a] person suffering legal wrong because of agency action . . . is entitled to judicial review thereof, and [a]n action in a court of the United States seeking relief other than money damages and stating a claim” is not barred by sovereign immunity. A separate provision of the APA provides that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity[.]” § 706(2)(B). District courts have considered similar constitutional claims as violations of these provisions. See Stevens v. Holder, 950 F. Supp. 2d 1282, 1290–91 (N.D. Ga. 2013) (concluding that the plaintiff stated an equal protection claim based on an immigration judge excluding the plaintiff from certain hearings). See also CASA de Md., Inc. v. Trump, — F. Supp. 3d —, 2018 WL 6192367, at *1 (D. Md. Nov. 28, 2018) (claim that the government discriminatorily altered Temporary Protected Status designations, in violation of equal protection and the APA); Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1092 (N.D. Cal. 2018) (same); Centro Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393, 414 (D. Mass. 2018) (same). The possible existence of another avenue for relief, however, does not foreclose Ms. Diaz-Rivas’ current equal protection claim. In Babcock & Wilcox Co., 610 F.2d at 1136, for example, a party argued that an Article III court, as opposed to an Article I review commission, could better develop the factual record for a Fourth Amendment challenge to a search warrant. The Third Circuit disagreed, stating that the Article I commission could “consider motions to suppress evidence without acting beyond its jurisdiction.” Id. at 1139.

38 Case: 17-14847 Date Filed: 04/18/2019 Page: 39 of 42

(“[W]e have clearly held that the Fifth Amendment protects aliens whose presence

in this country is unlawful from invidious discrimination by the Federal

Government.”). In this context, the Fifth Amendment protects an asylum applicant

from “be[ing] intentionally treated differently from others similarly situated [when]

there is no rational basis for the difference in treatment.” Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000) (per curiam).

The majority concludes that Ms. Diaz-Rivas’ equal protection claim is

foreclosed by binding precedent and that she failed to present evidence of

discriminatory intent. I strongly disagree on both grounds: the precedent does not

govern, and the evidence is more than sufficient.

First, the majority mistakenly relies on two published cases in which we have

denied equal protection claims alleging that the Atlanta immigration court treated

asylum applicants dissimilarly compared to other immigration courts. See

Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1218–19 (11th Cir. 2006); Zafar v.

U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006). Those cases do not control.

In Zafar, 461 F.3d at 1367, we affirmed the dismissal of the petitioner’s claim that

the Atlanta immigration court failed to administratively close certain immigration

proceedings, when other immigration courts routinely did. We reasoned that the

petitioner cited no authority to establish an equal protection violation and that there

was “no support in the record” for his argument. Id. A year later, in Haswannee, 39 Case: 17-14847 Date Filed: 04/18/2019 Page: 40 of 42

471 F.3d at 1218–19, we rejected an almost identical claim for the same reasons,

citing our holding in Zafar.

Unlike the petitioners in Haswanee and Zafar, Ms. Diaz-Rivas has cited

authority, outlined the relevant legal framework, and presented evidence to establish

her equal protection claim. She alleged that (a) asylum applicants are treated

differently at the Atlanta immigration court compared to immigration courts in other

cities, and (b) the difference in treatment is for the purpose of discrimination. Ms.

Diaz-Rivas then presented statistics showing that, from 2014 through 2016, the

Atlanta immigration court only granted 2% of asylum claims while, over the same

three-year period, immigration courts around the U.S. collectively granted 46% of

asylum claims. These statistics did not exist when we rejected different (and

conclusory) claims in Haswannee, 471 F.3d at 1218–19, and Zafar, 461 F.3d at

1367. That, by itself, makes Haswanee and Zafar distinguishable.

Second, Ms. Diaz-Rivas’ statistics constitute probative evidence of disparate

treatment and discriminatory intent. See McCleskey v. Kemp, 481 U.S. 279, 297–98

(1987); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270

(1977). “Of course, statistics do not tell the whole story.” United States v. City of

Miami, Fla., 614 F.2d 1322, 1339 (5th Cir. 1980). “Without such a subjective look

into the minds of the decisionmakers, the deceptively objective numbers [may]

afford at best an incomplete picture.” Harris v. Alabama, 513 U.S. 504, 513 (1995). 40 Case: 17-14847 Date Filed: 04/18/2019 Page: 41 of 42

But “while statistics alone usually cannot establish intentional discrimination, under

certain limited circumstances they might.” Spencer v. Zant, 715 F.2d 1562, 1581

(11th Cir. 1983). See also Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. 1982).

“Sometimes a clear pattern, unexplainable on grounds other than [discrimination],

emerges from the effect of the [government] action even when the governing

legislation appears neutral on its face.” Arlington Heights, 429 U.S. at 266. In those

cases, statistics showing discriminatory treatment can be “a telltale sign of

purposeful discrimination.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,

340 n.20 (1977).

In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through

2016 asylum applicants outside of Atlanta’s immigration court were approximately

23 times more likely to succeed than asylum applicants in Atlanta—are disquieting

and merit further inquiry by the BIA. See City of Miami, 614 F.2d at 1339. If these

statistics pertained to a federal district court, the Administrative Office would begin

an investigation in a heartbeat.

The government may well be able to explain why asylum applicants so rarely

succeed in Atlanta, and, because undocumented immigrants are not a suspect class,

any disparate treatment “[is] subject to minimal scrutiny under the rational basis

standard of review.” Yeung, 76 F.3d at 339. At this stage, however, I am not aware

of a convincing basis to explain the disparity that Ms. Diaz-Rivas presents, and the 41 Case: 17-14847 Date Filed: 04/18/2019 Page: 42 of 42

government has not offered one. At the very least, these troubling statistics “indicate

plainly enough that this Court should not accept,” United States v. Bethlehem Steel

Corp., 315 U.S. 289, 333 (1942) (Frankfurter, J., dissenting), the government’s

conclusory argument that this disparity merely results from “the inherent human

biases of all judges.” Appellee’s Br. at 36. I add that, even if the government’s

unsupported suggestion has a hint of truth, the situation remains deeply troubling, as

it would appear that the immigration judges in Atlanta are inherently biased (the

government’s phrasing) against asylum applicants in the same way.

On remand, I would order the BIA to consider the merits of Ms. Diaz-Rivas’

equal protection claim or further justify its conclusion that it lacks the jurisdiction to

do so. To do otherwise is to ignore the very real possibility that “[a]ll is not well”

in the Atlanta immigration court. William Shakespeare, Hamlet, Act I, Scene 2, Line

254 (1601).

IV

With respect, I dissent from the majority’s interpretation of the “at least one

central reason” standard and its resolution of Ms. Diaz-Rivas’ equal protection

claim.