Rivera-Coca v. Lynch

844 F.3d 374, 2016 U.S. App. LEXIS 23414, 2016 WL 7487727
CourtCourt of Appeals for the First Circuit
DecidedDecember 30, 2016
Docket16-1115P
StatusPublished
Cited by10 cases

This text of 844 F.3d 374 (Rivera-Coca v. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rivera-Coca v. Lynch, 844 F.3d 374, 2016 U.S. App. LEXIS 23414, 2016 WL 7487727 (1st Cir. 2016).

Opinion

SELYA, Circuit Judge.

The petitioner, German Donaldo Rivera-Coca, is a Honduran national. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA), which denied his application for asylum and withholding of removal. Concluding, as we do, that the BIA’s order is supported by substantial evidence, we deny the petition.

I. BACKGROUND

We rehearse the facts as recounted by the petitioner and then limn the travel of the case. The petitioner owned a small accounting firm in Puerto Cortes, Honduras, which frequently did business with that nation’s Liberal Party (though the petitioner states that he is not politically inclined and does not support any particular political party). Early in 2011, the petitioner discovered political propaganda posters supporting the rival National Party displayed on the walls and windows of his office. He tore down the posters but they soon reappeared.

After the petitioner removed the posters a second time, three or four men, dressed in clothing typically worn by National Party activists, came to his office and assaulted him. The petitioner says that he reported the matter to the police and that he sought medical treatment. He asserts that, despite his report, the police never investigated the matter.

A few days later, the petitioner discovered that the posters were once more in evidence. He removed them but, shortly thereafter, he started receiving threats. We briefly describe the threats. The petitioner testified that a handwritten note was delivered to his office and—although the original note was never produced—he claimed that it said that he “had to be very careful” and that those who do not respect “the blue ones” regret it. 1 The petitioner did not report this message to the police.

One evening in March of 2011, a stranger dressed in what the petitioner described as typical National Party attire (a white shirt and blue jeans) approached the petitioner on the street. The stranger told the petitioner that he was “going to die if [he did not] join [them].” Once again, the petitioner did not report this threat to the police.

The petitioner’s family also became involved: on a few unspecified occasions, National Party activists told the petitioner’s wife that they knew where her husband lived and where he was. In addition, caravans of cars bearing National Party flags *377 stopped in front of the family’s home. The occupants of the cars shouted, “I know who you are and I know who you’re dealing with.”

Concerned about the situation, the petitioner took his family to his mother-in-law’s house (five or six hours away). Despite this relocation, caravans of cars continued to appear. Men shouted from the cars, “Never mind where you go. Never mind where you are. We know where you are.”

The petitioner decided to flee to the United States. Leaving his family in Honduras, he entered the United States without documentation in May of 2011. He was apprehended and questioned by Border Patrol agents. He told the agents that he intended to live and work in the United States for two years and that he did not fear returning to Honduras. But during an interview some months later, the petitioner changed his tune, saying that he in fact feared persecution and was afraid to return to Honduras.

In due course, the Department of Homeland Security initiated removal proceedings, charging that the petitioner was present in the United States without legal sanction. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). The petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). He argued that he had a well-founded fear of persecution based on his recent experiences in Honduras.

After a merits hearing, an immigration judge (IJ) denied the petitioner’s requests for relief and ordered his removal. In doing so, the IJ noted several inconsistencies in the petitioner’s testimony and expressed serious doubts about his credibility. The IJ went on to find that the petitioner’s testimony was not “otherwise credible,” that is, that the petitioner had not overcome the inconsistencies in his testimony through readily available corroborating evidence and, thus, had failed to carry his burden of proving eligibility for relief.'

The IJ did not stop there but, rather, used both a belt and suspenders. She held that even if the absence of corroborating evidence was overlooked and the petitioner’s testimony was deemed fully credible, the mistreatment that he allegedly suffered did not rise to the level of past persecution. By the same token, that mistreatment did not justify a well-founded fear of future persecution. She added that no probative evidence showed that the petitioner was likely to be targeted should he be repatriated, especially given the recent election (2013) of a new president in Honduras and the ascension to power of a new administration.

With this preface in place, the IJ ruled that the petitioner was not entitled to asylum, withholding of removal, or CAT protection. The petitioner countered by appealing to the BIA. He asseverated that the IJ committed clear error in evaluating his credibility, in requiring corroborating evidence, in concluding that past persecution had not been demonstrated, and in concluding that no well-founded fear of future persecution existed.

The BIA dismissed the petitioner’s appeal. Its- reasoning was relatively narrow: it affirmed the IJ’s holding that, even presuming the petitioner to be credible, he had not .carried either his burden of explaining the lack of corroborating evidence or of showing that what he had experienced rose to the level of persecution. Re-latedly, it affirmed the IJ’s ruling that the petitioner had not demonstrated an objectively reasonable basis to support his claim of a well-founded fear of future persecution.

*378 This timely petition for judicial review followed. See 8 U.S.C. § 1252(a).

II. ANALYSIS

In this venue, the petitioner challenges the denial of his claims for asylum and withholding of removal. He does not challenge the denial of his CAT claim. We limit our analysis accordingly and treat the CAT claim as waived. See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010).

In the immigration context, judicial review normally focuses on the decision of the BIA, which constitutes the agency’s final order. See Wan v. Holder, 776 F.3d 52, 55 (1st Cir. 2015). But where, as here, the BIA merely adds its gloss to the IJ’s findings and conclusions, we treat the two decisions as a unit and review'them together. See id. at 55-56.

We start with the petitioner’s asylum claim because a claim for withholding of removal “imposes a ‘more stringent burden of proof on an alien than does a counterpart claim for asylum.’” Morgan v. Holder, 634 F.3d 53

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844 F.3d 374, 2016 U.S. App. LEXIS 23414, 2016 WL 7487727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-coca-v-lynch-ca1-2016.