FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 11, 2020 _________________________________ Christopher M. Wolpert Clerk of Court EMMA ROSA AMAYA JIMENEZ; JANE DOE, a minor child,
Petitioners,
v. Nos. 17-9548 & 18-9541 (Petition for Review) WILLIAM P. BARR, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Petitioners are a mother and her minor daughter from Honduras who
unsuccessfully sought asylum, withholding of removal, and protection under the
Convention Against Torture (CAT) on domestic violence grounds. Their petition for
review challenges (1) the September 28, 2017, Board of Immigration Appeals (BIA)
decision dismissing the appeal of the denial of their claims for asylum and
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. withholding of removal; and (2) the May 31, 2018, BIA decision denying their
motion to reopen their removal proceeding based on ineffective assistance of counsel.
Petitioners have also filed a motion to remand to the BIA. Exercising jurisdiction
under 8 U.S.C. § 1252, we deny the petition for review, as well as the motion to
remand.
I. Background
Petitioner Jane Doe is the minor daughter of Petitioner Emma Rosa Amaya
Jimenez. She is now six years old, and her mother is thirty-four years old. Natives
and citizens of Honduras, they entered the United States illegally via Texas on
December 13, 2014. The Department of Homeland Security initiated removal
proceedings against them by serving them with a Notice to Appear (NTA) alleging
they were present in the United States without being admitted or paroled after
inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners conceded removability
before the immigration court but applied for asylum, withholding of removal, and
protection under the CAT. Jane Doe is a derivative beneficiary on her mother’s
application for asylum, see id. § 1158(b)(3), but she filed her own I-589 application
for withholding of removal and protection under the CAT.
The Immigration Judge (IJ) held a hearing on Petitioners’ applications in
October 2016. Ms. Amaya Jimenez testified. The crux of her testimony was that she
was in a physically and emotionally abusive relationship with a man named Oscar
Alirio Hernandez for about two years. She received such a severe beating during her
pregnancy that she had to go to the hospital. Mr. Hernandez is Jane Doe’s father, but
2 his name is not on Jane Doe’s birth certificate because he did not want her to “carry
his name.” Pet’rs’ App. at 150. Mr. Hernandez regularly hit her, Jane Doe, and her
two older children, who ultimately moved in with her brother. She contacted an
attorney for help through her sister and also filed a police report against
Mr. Hernandez, but both avenues only led to further violence. Ultimately, she fled
with Jane Doe to the United States, leaving her other children behind with her
brother.
On cross-examination, Ms. Amaya Jimenez could not explain numerous
discrepancies in the police report. She acknowledged that the attorney she contacted
for help is also the father of her oldest daughter. She further acknowledged that
when she got to the United States, she told immigration officials she was going to
Colorado to live with a man named Carlos Villatoro, who was her “partner” and Jane
Doe’s father. Id. at 159-60. She explained that a relative met Mr. Villatoro online
and he agreed to help Petitioners, so they lived with him for about a year. She stated
that she did not tell immigration officials she was afraid of returning to Honduras
because “they didn’t ask.” Id. at 160. She periodically referred to Mr. Hernandez as
her “ex-husband,” see, e.g., id. at 156, but denied being legally married to him.
A licensed clinical social worker also testified at the hearing. The social
worker met with Ms. Amaya Jimenez twice to conduct a clinical interview and a
mental health status examination, but she did not review any written documentation.
The social worker concluded that Ms. Amaya Jimenez suffered from post-traumatic
stress disorder and major depression. She found Ms. Amaya Jimenez’s account to be
3 credible, but indicated that her assessment would have been different had she known
about the statements at the border regarding Mr. Villatoro.
The IJ issued a detailed written decision denying Petitioners’ requests for
relief and ordering their removal to Honduras. The IJ found that Petitioners
presented insufficient corroborating evidence to prove eligibility for asylum. The IJ
highlighted several evidentiary deficiencies that “created substantial concerns” for
her. Pet’rs’ App. at 11. For example, the police report submitted during the hearing
has internal discrepancies with respect to the date of the incident and Jane Doe’s age
and is also inconsistent with Ms. Amaya Jimenez’s testimony. Moreover, only one
document in the record—that questionable police report—even contains
Mr. Hernandez’s name. Mr. Hernandez is not listed as the father on Jane Doe’s birth
certificate, and Ms. Amaya Jimenez identified Mr. Villatoro as Jane Doe’s father
when she spoke to border agents. Furthermore, Ms. Amaya Jimenez was not
forthcoming about her familial or previous romantic relationship with some of the
people who submitted affidavits to support her application. Consequently, the IJ
expressed “serious questions about the harm [Ms. Amaya Jimenez] alleged she
endured at the hands of [Mr. Hernandez]” and even questioned whether he “truly
exists.” Id. at 10. The IJ also considered the above-listed factors, together with
inconsistencies in the timeline of events, to be “serious indicators of adverse
credibility” when considered collectively. Id. at 13. As a derivative beneficiary on
her mother’s unsuccessful application, Jane Doe was not entitled to asylum either.
4 Because Ms. Amaya Jimenez could not meet the lesser burden of proof to
establish eligibility for asylum, the IJ determined she is necessarily ineligible for
withholding of removal, which has a higher burden of proof. The IJ also deemed
Ms. Amaya Jimenez to be ineligible for protection under the CAT due to her failure
to present credible evidence that she will be tortured upon return to Honduras.
Having “advance[d] the same basis for a claim of relief” in her I-589 application as
her mother, id. at 13 n.1, Jane Doe was similarly ineligible for both types of relief.
Petitioners appealed the denial of asylum and withholding of removal to the
BIA.1 A single member of the BIA affirmed the IJ’s decision and dismissed the
appeal on September 28, 2017. The BIA noted the IJ’s adverse credibility
determination and the IJ’s conclusion that, “even assuming that [Ms. Amaya
Jimenez’s] testimony was credible,” she had not met her burden of proof for her
asylum claim because (1) she did not submit sufficient corroborating evidence and
(2) the evidence she submitted contained discrepancies and inconsistencies. Id. at
102. The BIA then summarized the hearing testimony and the IJ’s decision in detail.
Ultimately, the BIA agreed with the IJ’s reasoning and upheld the denial of relief.
On October 26, 2017, Petitioners filed a timely petition for review with this
court. On December 26, 2017, they filed a motion to reopen their removal
proceedings based on ineffective assistance of counsel. They argued that the attorney
1 The BIA noted that Petitioners’ notice of appeal “cursorily expressed disagreement” with the IJ’s ruling that they were not entitled to protection under the CAT. Pet’rs’ App. at 16 n.2. But it deemed that matter waived because the brief did not “provide[] any meaningful challenge” to the ruling. Id. 5 who represented them before the IJ and the BIA did not thoroughly review the
evidence and the translations thereof, conduct appropriate due diligence, or “tailor[
the evidence] to their specific factual scenario in any way.” Id. at 26. These failures,
they said, prejudiced them and denied them a fundamentally fair proceeding. On
May 31, 2018, the BIA denied the motion to reopen.
Petitioners now petition for review of both BIA decisions. They also move for
a remand to the BIA to brief two recent legal developments.
II. Analysis
A. Motion to Remand
Because it implicates the agency’s jurisdiction, we turn first to Ms. Amaya
Jimenez’s motion to remand to the BIA to allow her to (1) add a jurisdictional
argument based on Pereira v. Sessions, 138 S. Ct. 2105 (2018);2 and (2) rebrief
whether she and her daughter are part of a particular social group given the Attorney
General’s opinion in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which vacates
the decision she relied upon to support her asylum claim, Matter of A-R-C-G, 26 I. &
N. Dec. 388 (BIA 2014).3 Ms. Amaya Jimenez contends that both issues will be
“determinative” of this appeal, Mot. to Remand at 8, but that is not the case.
2 Petitioners make a similar argument to this court in the jurisdictional section of their opening brief. 3 Ms. Amaya Jimenez could not raise these arguments in a motion to reconsider before the BIA because the deadline to file a motion to reconsider is thirty days after the BIA’s removal order; both Matter of A-B- and Pereira were issued after that date. 6 This court recently rejected the Pereira-based jurisdictional argument in
Lopez-Munoz v. Barr, 941 F.3d 1013, 1017-18 (10th Cir. 2019). In Pereira, the
Supreme Court held that an NTA that does not specify the time and date at which
removal proceedings will be held is not “a notice to appear” under 8 U.S.C. § 1229(a)
and does not trigger the stop-time rule in 8 U.S.C. § 1229b for purposes of
cancellation of removal. 138 S. Ct. at 2113-14. Ms. Amaya Jimenez seeks to extend
the holding in Pereira beyond the context of the stop-time rule. She argues that
because her NTA was legally defective under the applicable regulations (8 C.F.R.
§§ 1003.13, 1003.14(a)) and statute (8 U.S.C. § 1229(a)), the IJ lacked jurisdiction
over her removal proceeding. This court squarely rejected this theory in
Lopez-Munoz, joining the growing number of circuit courts that have “declin[ed] to
read Pereira as an implicit pronouncement on an immigration judge’s jurisdiction.”
941 F.3d at 1018.
It would be similarly unproductive for Petitioners to rebrief whether they are
part of a particular social group—women in Honduras unable to leave a
relationship—given recent changes in the law. The Attorney General stated in
Matter of A-B- that “[g]enerally, claims by aliens pertaining to domestic violence . . .
perpetrated by non-governmental actors will not qualify for asylum.” 27 I. & N. Dec.
at 320. This decision thus makes it much harder for women alleging domestic abuse
to obtain asylum on that ground. In any event, neither the IJ nor the BIA based its
ruling on membership in a particular social group; the determinative factor was
Ms. Amaya Jimenez’s lack of credibility and failure to meet her burden of proof.
7 Furthermore, the government did not rely up Matter of A-B- in its briefing on appeal,
and it does not factor into this court’s ruling either.
For these reasons, we deny the motion to remand.
B. Petition for Review
This case involves a single BIA member’s brief order under 8 C.F.R.
§ 1003.1(e)(5). We review that order as the final agency determination, limiting our
review to the issues specifically addressed therein. Diallo v. Gonzales, 447 F.3d 1274,
1278-79 (10th Cir. 2006). We may, however, consult the IJ’s decision “to give substance
to the BIA’s reasoning.” Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). For
instance, because the BIA incorporated the IJ’s rationale by reference and repeated a
condensed version of the IJ’s reasoning, we may consult the IJ’s “more complete
explanation of those same grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204
(10th Cir. 2006).
We review the BIA’s legal conclusions de novo. Elzour v. Ashcroft,
378 F.3d 1143, 1150 (10th Cir. 2004). We review the BIA’s findings of fact—including
its credibility determinations—under the substantial evidence standard: “Under that test,
our duty is to guarantee that factual determinations are supported by reasonable,
substantial and probative evidence considering the record as a whole.” Id. “[T]he BIA’s
findings of fact are conclusive unless the record demonstrates that any reasonable
adjudicator would be compelled to conclude to the contrary.” Rivera-Barrientos v.
Holder, 666 F.3d 641, 645 (10th Cir. 2012) (internal quotation marks omitted). The
8 substantial evidence standard is “highly deferential.” Wiransane v. Ashcroft, 366 F.3d
889, 897 (10th Cir. 2004).
1. Adverse Credibility Determination
Petitioners contend on appeal that the BIA erred as a matter of law by not
conducting a meaningful review of the adverse credibility determination. However,
the BIA referenced the IJ’s determination that Ms. Amaya Jimenez’s testimony was
not credible and noted that the IJ was in the best position to assess her credibility.
The BIA then discussed a number of ways in which her testimony was
unsubstantiated or conflicted with the evidence, repeating a condensed version of the
IJ’s reasoning. The BIA’s analysis constitutes a meaningful review of the IJ’s
credibility determination.
Petitioners further contend that “no reasonable adjudicator could have reached
the conclusion that [Ms. Amaya Jimenez] was not credible.” Opening Br. at 24.
They effectively ask us to second-guess the adverse credibility determination. “We
may not weigh the evidence, and we will not question the immigration judge’s or
BIA’s credibility determinations as long as they are substantially reasonable.”
Woldemeskel v. INS, 257 F.3d 1185, 1192 (10th Cir. 2001). Here, the IJ considered
the totality of the circumstances and the relevant factors outlined in 8 U.S.C.
§ 1158(b)(1)(B)(iii) and supported the adverse credibility determination with
reasonable, substantial, and probative evidence. The IJ also documented a number of
inconsistencies and discrepancies between Ms. Amaya Jimenez’s testimony and the
evidence, as required. See Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir. 2004)
9 (“Because an alien’s testimony alone may support an application for withholding of
removal or asylum, the IJ must give specific, cogent reasons for disbelieving it.”
(citation and internal quotation marks omitted)). The BIA referred back to the IJ’s
detailed analysis. The agency’s credibility determination was substantially
reasonable.
Petitioners also advance a few more specific attacks on the adverse credibility
determination, which likewise lack merit. For instance, Petitioners take issue with
the IJ’s reference to the statement Ms. Amaya Jimenez made to border agents
regarding her intent to reside with Mr. Villatoro and his paternity of Jane Doe. They
claim the IJ “relied on this border statement to call into question the veracity of the
entire case,” in contravention of Uanreroro. Opening Br. at 32. It is true, as
Petitioners state, “that lying in an attempt to enter the United States does not on its
own provide substantial evidence to support an adverse credibility determination”
under Uanreroro. Id. at 30 (emphasis added). But the IJ did not run afoul of
Unanreroro because the border statement here was only a factor in the credibility
determination, which is permissible. See Uanreroro, 443 F.3d at 1211. Petitioners
also place the blame on their former counsel. But as explained infra in connection
with their motion to reopen, the BIA concluded that Petitioners did not show that the
outcome of the case would have been different but for former counsel’s ineffective
performance and indeed that former counsel’s performance was not even deficient.
We discern no error with respect to the agency’s adverse credibility
determination.
10 2. Insufficient Corroborating Documentation
Petitioners next argue that the BIA erred in finding that Ms. Amaya Jimenez
did not provide sufficient corroborating documentation for her asylum claim. It is
not necessary for us to reach this argument because we have upheld the alternative
ground for the BIA’s asylum determination: Ms. Amaya Jimenez’s lack of
credibility. But we note that the BIA pinpointed numerous evidentiary deficiencies
relating to the police report, Mr. Hernandez’s paternity of Jane Doe, the abuse
inflicted by Mr. Hernandez, and the court filing against Mr. Hernandez. The BIA
also highlighted the lack of supporting evidence from Mr. Villatoro and from
Ms. Amaya Jimenez’s sister, as well as Petitioners’ failure to disclose familial
relationships with the individuals who did provide evidence. And within its analysis,
the BIA referenced the IJ’s detailed decision extensively. Accordingly, substantial
evidence also supports the BIA’s finding as to insufficient corroborating evidence.
3. Jane Doe’s Independent Claims
Petitioners present a cursory, undeveloped argument that the BIA erred in
failing to consider Jane Doe’s independent claims for asylum, withholding of
removal, and protection under the CAT. We reject this argument.
Jane Doe’s asylum claim fails because she is a derivative beneficiary on her
mother’s asylum application under 8 U.S.C. § 1158(b)(3), which was unsuccessful.
The BIA correctly concluded that Petitioners had not presented a viable basis for an
independent asylum claim for Jane Doe. But even if she had asserted an independent
claim for asylum based on abuse inflicted by Mr. Hernandez, as Petitioners argue on
11 appeal, that claim would fail too. The only evidence presented to substantiate such
abuse was the brief testimony of Ms. Amaya Jimenez, and we have upheld the
agency’s determination that she was not credible.
Jane Doe’s claims for withholding of removal and protection under the CAT
fail because Petitioners did not advance a separate appellate argument relating to
these claims before the BIA. Any such arguments (which remain unknown) are
administratively unexhausted, and we lack jurisdiction to consider them in the first
instance. See 8 U.S.C. § 1252(d)(1); see also Robles-Garcia v. Barr, 944 F.3d 1280,
1283-84 (10th Cir. 2019).
4. Motion to Reopen
Finally, Petitioners argue that the BIA erred in denying Ms. Amaya Jimenez’s
motion to reopen based upon ineffective assistance of counsel. The BIA denied the
motion on several grounds. First, Petitioners did not comply with the requirements
of Matter of Assaad, 23 I. & N. Dec. 553 (BIA 2003), and Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988). Specifically, they did
not file a complaint with the applicable state bar before filing the motion to reopen,
and even after they purportedly filed one later, they did not include a copy in the
update to the motion to reopen. Second, Petitioners did not show that the outcome of
the case would have been different but for former counsel’s ineffective performance.
Last, former counsel’s performance was not even deficient. “Rather, [Ms. Amaya
Jimenez] herself contributed to many of the inconsistencies and discrepancies.”
Pet’rs’ App. at 131.
12 “We review the BIA’s decision on a motion to reopen only for an abuse of
discretion.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013) (alterations,
and internal quotation marks omitted). “The BIA abuses its discretion when its
decision provides no rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only summary or conclusory
statements.” Id. (internal quotation marks omitted). “The BIA does not abuse its
discretion when its rationale is clear, there is no departure from established policies,
and its statements are a correct interpretation of the law, even when the BIA’s
decision is succinct.” Id. (internal quotation marks omitted). “[M]otions to reopen
immigration cases are plainly disfavored,” and the moving party “bears a heavy
burden to show the BIA abused its discretion.” Id. (alterations and internal quotation
marks omitted).
Petitioners’ primary argument on appeal is that Lozada does not require a
party alleging ineffective assistance of counsel to actually file a copy of the bar
complaint with the BIA. According to Petitioners, the party alleging ineffective
assistance need only indicate in the motion whether a disciplinary complaint has been
filed and explain why not, if that is the case. But according to the BIA, documentary
evidence of the complaint was necessary here to allow it “to review the complaint to
ensure that it is not simply a pro forma filing, meritless, and/or involves collusion.”
Pet’rs’ App. at 130. In finding Petitioners’ submission to be deficient, the BIA cited
Matter of Rivera-Clavos, 21 I. & N. Dec. 599 (BIA 1996), which expresses the BIA’s
13 preference “to make final determinations of ineffective assistance of counsel claims
on the documentary submissions alone, where possible.” Id. at 604.
We need not decide what exactly Lozada requires under these circumstances.
Even if we assume compliance with Lozada, Petitioners have not met their heavy
burden of showing that the BIA abused its discretion. Petitioners argue that their
former counsel prejudiced them by not thoroughly reviewing the evidence submitted
to the court and the accompanying translations and by failing to conduct appropriate
due diligence. The BIA carefully articulated why the record reveals otherwise.
III. Conclusion
The court denies the petition for review of the BIA’s final removal order, as
well as the motion to remand. The court grants Petitioners’ sealed motion for leave
to proceed in forma pauperis. Since we have resolved the petition for review,
prepayment of fees is no longer an issue. The relevant statute, 28 U.S.C. § 1915(a),
does not permit litigants to avoid payment of fees; only prepayment of fees is
excused. Accordingly, Petitioners are required to pay all fees to the Clerk of this
Court.
Entered for the Court
Bobby R. Baldock Circuit Judge