Moller v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: May 29, 2024
• Docket: 21-6564
• Status: Unpublished

Opinion

21-6564 Moller v. Garland BIA Hochul, IJ A087 644 855

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th day of May, two thousand twenty- four.

PRESENT: RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, MYRNA PÉREZ, Circuit Judges. _____________________________________

ANDELINE JOAN FREDELINE MOLLER, Petitioner,

v. 21-6564 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Jose Perez, Esq., Law Offices of Jose Perez, P.C., Syracuse, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; David J. Schor, Senior Litigation Counsel; Sarah K. Pergolizzi, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DISMISSED IN PART and DENIED IN

PART.

Petitioner Andeline Joan Fredeline Moller, a native and citizen of Namibia,

seeks review of a September 22, 2021 decision of the BIA affirming an April 5, 2019

decision of an Immigration Judge (“IJ”) denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Moller, No. A087 644 855 (B.I.A. Sept. 22, 2021), aff’g No. A 087 644

855 (Immigr. Ct. Buffalo Apr. 5, 2019). We assume the parties’ familiarity with

the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified and supplemented by the

2 BIA. 1 See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings for

substantial evidence, and we review questions of law and the application of law

to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he

administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary . . . .” 8 U.S.C. § 1252(b)(4)(B).

I. Asylum

It is undisputed that Moller filed her application in 2017, more than one year

after her most recent entry into the United States in 2009. Under 8 U.S.C.

§ 1158(a)(2)(B), an applicant is ineligible for asylum unless she “demonstrates by

clear and convincing evidence” that her application was filed “within 1 year after

the date of [her] arrival in the United States.” An application “may be

considered” outside the one-year deadline if the applicant demonstrates “changed

circumstances which materially affect the applicant’s eligibility for asylum.” Id.

§ 1158(a)(2)(D); see also Matter of D-G-C-, 28 I. & N. Dec. 297, 300 (B.I.A. 2021)

(interpreting the statute to require that the applicant’s circumstances be

1 Moller’s arguments about nexus to a protected ground, internal relocation, and government responsibility for past and feared harm—issues the BIA did not reach—are thus misplaced. 3 “qualitatively different” and that this difference “must significantly affect the

applicant’s eligibility for asylum”).

Our jurisdiction to review the agency’s findings regarding the timeliness of

an asylum application and the circumstances excusing untimeliness is limited to

“constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); see id.

§ 1158(a)(3). A question of law may arise where “facts important to the subtle

determination of ‘exceptional and extremely unusual hardship’ have been totally

overlooked and others have been seriously mischaracterized.” Mendez v. Holder,

566 F.3d 316, 323 (2d Cir. 2009).

Moller, who alleged a series of politically motivated violent acts against

herself, her family, and her friends beginning in the 1960s, argues that the agency

ignored or mischaracterized evidence as to a material change in circumstances

excusing the untimely filing. Although the agency did not expressly discuss all

of Moller’s allegations, we do not require the agency to “expressly parse or refute

on the record each individual argument or piece of evidence offered by the

petitioner.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (citation

omitted). Moller’s contention that the agency overlooked or mischaracterized

significant evidence is further unavailing because the agency expressly considered

4 dramatic recent events and whether they reflected a change in circumstances that

materially affected Moller’s eligibility for asylum. Accordingly, the petition is

dismissed for lack of jurisdiction with respect to the denial of asylum.

II. Withholding of Removal and CAT Relief 2

An applicant has the burden to establish her eligibility for withholding of

removal and CAT relief. See 8 U.S.C. § 1231(b)(3)(C); 8 C.F.R. § 1208.16(b), (c)(2).

“The testimony of the applicant may be sufficient to sustain the applicant’s burden

without corroboration, but only if the applicant satisfies the trier of fact that the

applicant’s testimony is credible, is persuasive, and refers to specific facts

sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C.

§ 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C); 8 C.F.R. § 1208.16(c)(2).

Accordingly, “in some cases . . . an applicant may be generally credible but [her]

2 The BIA erred in finding that Moller waived her CAT claim: the IJ denied CAT relief because Moller failed to satisfy the lesser burden for withholding of removal; thus, Moller’s appellate arguments challenging the denial of withholding necessarily challenged the sole basis for the denial of CAT relief. Remand to correct that error is unnecessary because, for the reasons discussed below, Moller failed to satisfy her burden to show a likelihood of persecution, which is a lesser degree of harm than torture. See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010); see also Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (explaining that remand is futile when the agency “articulates an alternative and sufficient basis for [its] determination” (citation omitted)). 5 testimony may not be sufficient to carry the burden of persuading the fact finder

of the accuracy of [her] claim of crucial facts if [she] fails to put forth corroboration

that should be readily available.” Wei Sun v. Sessions, 883 F.3d 23, 28 (2d Cir.

2018); see also Pinel-Gomez v. Garland, 52 F.4th 523, 529–30 (2d Cir. 2022) (explaining

that the agency may find testimony credible but “still decide that the testimony

falls short of satisfying the applicant’s burden of proof, either because it is

unpersuasive or because it [does] not include specific facts sufficient to

demonstrate that the applicant is a refugee” (internal quotation marks and citation

omitted)). “Where the trier of fact determines that the applicant should provide

evidence that corroborates otherwise credible testimony, such evidence must be

provided unless the applicant does not have the evidence and cannot reasonably

obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii).

Thus, a lack of corroboration can be an independent basis for the denial of

relief if the agency identifies reasonably available evidence that should have been

presented. See id.; Wei Sun, 883 F.3d at 27‒28. Before denying a claim based

solely on an applicant’s failure to provide corroborating evidence, the IJ must,

either in his or her decision or otherwise in the record, “(1) point to specific pieces

of missing evidence and show that it was reasonably available, (2) give the

6 applicant an opportunity to explain the omission, and (3) assess any explanation

given.” Wei Sun, 883 F.3d at 31. Where the IJ has identified the missing

evidence, we may reverse the agency’s decision only if “a reasonable trier of fact

is compelled to conclude that such corroborating evidence is unavailable.”

8 U.S.C. § 1252(b)(4); see Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011).

Moller argues that her credible testimony was sufficient to satisfy her

burden for withholding of removal and CAT protection. However, as noted, the

agency is entitled to require reasonably available corroborating evidence even for

credible testimony. Wei Sun, 883 F.3d at 28. The agency identified specific

missing documentation: statements from Moller’s siblings, or other evidence that

she and her relatives were assaulted and that any of her deceased relatives were

intentionally killed. The only statement from a sibling in the record is an undated

and unsworn statement from one of Moller’s twelve surviving siblings, who did

not mention many of Moller’s allegations of past harm (e.g., that their aunt and

one of their brothers were beaten to death in their homes in 2016 and 2017, and

that one of their cousins was killed by poisoning in their mother’s home in 2016),

and did not explain the basis for her knowledge of the events that she did mention.

While Moller also presented statements from her husband and son, they

7 principally addressed Moller’s father’s 1989 death and did not claim personal

knowledge of that event; they did not mention the alleged murders and assaults

of Moller’s other relatives in 2016 and 2017. The agency reasonably required

statements from other siblings and concluded that such statements were

reasonably available, given evidence that Moller’s siblings are all well-educated

and her testimony that they have a close relationship, she learned of some events

underlying her claims from siblings who did not provide statements, and one or

more of those siblings attempted to obtain other supporting documents on her

behalf. Moller does not argue here that such statements were not reasonably

available, or that she was not given a fair opportunity to explain their

unavailability.

There was no other evidence corroborating Moller’s allegation that she and

her relatives were intentionally harmed: news reports about her father’s death

reflected that he was a well-respected figure who died in a car crash, his death

certificate stated the cause of death was then under investigation, and Moller did

not provide additional evidence corroborating the allegations about harm to

herself or other members of her family. 3 Other records related to Moller’s

3 Moller asserts here that she presented evidence that an expert determined that 8 mother—who died of natural causes—show that she was a well-known figure and

do not mention persecution. While Moller alleged that three family friends were

murdered, she did not corroborate her family’s connection to those individuals,

and there was no corroboration that one of the victims died or that another was

intentionally killed. Further, the country conditions evidence was not consistent

with Moller’s assertion of multiple politically motivated murders committed on

behalf of the Namibian government in 2016 and 2017, as the U.S. State Department

Reports for 2016 through 2018 recorded no instances of arbitrary or unlawful

killings by the government or its agents during that period.

In sum, the agency did not err in concluding that Moller failed to satisfy her

burden to show that she suffered past persecution or will more likely than not be

persecuted or tortured in the future because she did not corroborate significant

aspects of her claim, and the record does not compel the conclusion that

corroborating evidence was unavailable. See 8 U.S.C. § 1252(b)(4); 8 C.F.R.

§§ 1208.16(b)–(c), 1208.17; see also 8 U.S.C. § 1231(b)(3)(A); Wei Sun, 883 F.3d at 28.

For the foregoing reasons, the petition for review is DISMISSED IN PART

her brakes failed because of intentional tampering. The only evidence to that effect, however, was Moller’s own testimony about what a mechanic said to her. 9 and DENIED IN PART. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court