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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12758 Non-Argument Calendar ________________________
Agency No. A215-824-594
ROBERT JUVENER GARCIA-GUITY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(August 6, 2021)
Before MARTIN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM: USCA11 Case: 20-12758 Date Filed: 08/06/2021 Page: 2 of 18
Robert Juvener Garcia-Guity is a native and citizen of Honduras. He is
seeking review of the Board of Immigration Appeals’ (“BIA”) final order
affirming the Immigration Judge’s (“IJ”) denial of his application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). Garcia-Guity says the
IJ’s adverse credibility finding, which the BIA adopted, is not supported by
substantial evidence, and the BIA and IJ failed to give reasoned consideration to
evidence corroborating his asylum claims. He also argues the BIA failed to give
reasoned consideration to his claims for withholding of removal and CAT relief.
After careful consideration, we conclude the adverse credibility finding is
supported by substantial evidence. However, we agree with Garcia-Guity that the
BIA failed to give reasoned consideration to all of his corroborating evidence and
to his withholding of removal and CAT claims. Therefore, we grant his petition,
vacate the decision of the BIA, and remand for further proceedings.
I. BACKGROUND
Garcia-Guity is an asylum applicant facing removal. He alleges that he
came to the United States to escape persecution in Honduras on account of his race
(Black), ethnic group (Garifuna), and disability. He entered the United States in
September 2018.
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A. Credible Fear Interview
After Garcia-Guity arrived in the United States, an asylum officer conducted
a credible fear interview (“CFI”). The administrative record does not contain the
full transcript of Garcia-Guity’s CFI, only notes. The document containing these
notes has the following disclaimer:
THE FOLLOWING NOTES ARE NOT A VERBATIM TRANSCRIPT OF THIS INTERVIEW. THESE NOTES ARE RECORDED TO ASSIST THE INDIVIDUAL OFFICER IN MAKING A CREDIBLE FEAR DETERMINATION AND THE SUPERVISORY ASYLUM OFFICER IN REVIEWING THE DETERMINATION. THERE MAY BE AREAS OF THE INDIVIDUAL’S CLAIM THAT WERE NOT EXPLORED OR DOCUMENTED FOR PURPOSES OF THIS THRESHOLD SCREENING.
The CFI notes indicate that Garcia-Guity left Honduras because he was
afraid of the 18 gang. Garcia-Guity said the 18 gang was after him because he
reported them for beating him in 2014. According to the notes, Garcia-Guity said
the gang beat his leg repeatedly with a pipe, shattering his bone and knocking him
to the ground. The gang left him lying in the street until some people found him
and took him to the hospital. Doctors performed surgery on Garcia-Guity’s leg but
were unable to put his shattered bone back together. As a result, Garcia-Guity has
multiple pieces of platinum in his leg, which continue to cause him pain today. He
spent about a month in the hospital recovering. The gang also stole Garcia-Guity’s
wallet and cellphone and threatened to kill him if he reported them to the police.
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The notes say that when Garcia-Guity was asked why the gang was harassing him,
he responded: “They weren’t harassing me, but they were just stealing from
everybody in town.”
The CFI notes also indicate that Garcia-Guity said his family reported the
beating to the police, who came to the hospital to take his statement. However,
Garcia-Guity said he thinks the police told the gang that he reported them because
soon after he gave his statement, the gang sent him messages through his sister
saying not to return home or they would kill him. After leaving the hospital,
Garcia-Guity moved to San Pedro Sula, about four hours away from his
hometown. He underwent physical rehabilitation for his leg for about a year until
he was able to walk again, but with a limp.
Garcia-Guity was unable to get permanent work in San Pedro Sula as a
result of discrimination due to his limp and his race. The discrimination and
inability to work caused Garcia-Guity stress, which triggered his vitiligo, a disease
that causes white patches to break out on his skin. The vitiligo caused patches on
his face which led to more discrimination. For instance, he was told that he “didn’t
look right to work at restaurants” and that “even kids were afraid of [him].”
The CFI notes indicate that when Garcia-Guity was asked whether he had
ever been threatened or harmed on account of his race, he said he was
discriminated against for being Black but he “wasn’t threatened or harmed, just
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called names.” He said he did not believe he could safely return to Honduras
because gangs will find him anywhere.
B. Written Application and Hearing Before the IJ
Garcia-Guity filed a written application for asylum, which differed from his
CFI. He said that in 2014 he was attacked by gang members in his town who
called him a “damn negro” and a “damn Garifuna negro” as they beat him. They
beat him with a pipe, tried to shoot him, and threatened to kill him. The beating
stopped only because Garcia-Guity’s neighbor drove his car towards them, and he
believes they would have killed him otherwise. As a result of the beating, his leg
was completely broken and required metal inserts. The police took his statement
while he was in the hospital but did nothing further.
Garcia-Guity worked as a ship repairman who specialized in fiberglass but
the beating left him permanently disabled and unable to continue his job. This
stress aggravated his vitiligo and he developed large white patches on his face,
hands, and feet. Because of his skin condition and his leg, he was unable to find
employment.
Garcia-Guity’s written application also described discrimination and
harassment experienced by his family members as a result of being Black
Garifuna. For instance, the police detained his brother three times while he was
leaving work late at night and beat him twice. When his brother told the police he
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would report them, they threatened to beat him further.
Garcia-Guity also testified at his final merits hearing. He testified that he is
a member of the Garifuna race and ethnic group, that the Garifuna are descended
from escaped victims of the transatlantic slave trade, and that they have maintained
their own language and culture. He experienced racism from a young age. For
example, the Garifuna tried not to speak their language “in order to avoid any form
of abuse from white people” and they received “threats and fights” when they did
speak their language. In his twenties he was hired at a shipyard and became a
skilled maritime vessel fiberglass technician.
In 2012, Garcia-Guity moved within Honduras to La Cieba with his sister,
her family, and his father. They were one of two Garifuna families in the town and
they were the victim of racist abuse as soon as they arrived. The other Garifuna
family fled the town because of death threats. In 2013, Garcia-Guity’s sister,
Lesma, was raped multiple times and beaten by neighbors. They called her racial
slurs and left her lying on the ground with her hands and mouth tied up, her blouse
ripped, and no underwear. Garcia-Guity found her. When he called the police,
they said they had no patrolmen working that night and took no further action.
Later, Lesma told Garcia-Guity that the neighbors had continued to rape her by
breaking into the house while he was at work. They said that if she told Garcia-
Guity, they would kill him.
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Garcia-Guity also testified about the beating he suffered in 2014. He said
that gang members took his money, beat him severely, kicked him, and threw him
to the floor. One gang member put a gun to his head, called Garcia-Guity a racial
slur, said “this is it for you . . . because you didn’t want to leave,” and pulled the
trigger. The gun did not discharge. Garcia-Guity tried to run away but he was
struck on his leg and fell to the floor. The gang members continued to beat him
until he could not move his leg at all. They called him racial slurs throughout and
told him he was going to die. Garcia-Guity believes he was beaten by the same
people who raped his sister. The attack only stopped because a neighbor drove his
car at the assailants and took Garcia-Guity to the hospital. Doctors told Garcia-
Guity that he needed eight pints of blood and metal screws in his leg. While he
was in the hospital, the people who attacked him contacted his sister and said that
he was lucky the gun did not go off and that not to return home because “next time
they were not going to miss.”
Garcia-Guity moved to San Pedro Sula and did a year of physical therapy so
that he could walk. Nevertheless, he is still unable to walk normally and
experiences pain on a daily basis. After the attacks he was unable to get work and
fell into a depression. The stress he was under caused white spots to appear on his
face, hands, and legs. He still experienced racism in San Pedro Sula and in 2017
his apartment was burglarized and ransacked, he believes by the same people who
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attacked him in La Cieba. His landlady told him that people had been looking for
him, who said they knew where he lived, and that they were going to kill him.
After the break-in, Garcia-Guity left his apartment and struggled to obtain stable
housing. He had a difficult time getting and keeping a job because of his disability
and his race. Sometimes he slept on a park bench. He received a text from his
attackers saying they knew where he was working and what bench he was sleeping
on. Garcia-Guity fled Honduras in June 2018 because he did not feel safe
anywhere and felt like if he stayed he would be killed.
Garcia-Guity also testified about the circumstances of his credible fear
interview. He said the asylum officer did not allow him to fully explain his
answers and wanted him to answer only yes or no. The officer would stop him
whenever he tried to explain. Garcia-Guity testified that he tried multiple times to
explain what happened with his neighbors and his sister’s rape, but the officer did
not allow him to.
In addition to his testimony, Garcia-Guity presented several pieces of
evidence including letters from his family and others, medical records, news
articles, and country condition reports. For instance, his brother and sister
submitted letters corroborating that his attack was racially motivated. Garcia-
Guity also included reports from a Garifuna organization and a U.S. government
contractor explaining that the type of persecution he described is commonly
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experienced by the Garifuna people in Honduras.
C. The IJ’s Decision
The IJ denied Garcia-Guity’s applications for relief and ordered him
removed to Honduras. The IJ found Garcia-Guity not credible based on
inconsistencies between his testimony and the CFI notes, which the IJ found
reliable. The IJ stated that the “corroborating evidence contradict[ed] or
undermine[d] his claim of persecution.” The IJ found the letters Garcia-Guity
submitted from family members were of limited probative value because they were
prepared by interested witnesses. The IJ otherwise stated summarily that Garcia-
Guity’s evidence failed to reasonably corroborate his claims. The IJ found Garcia-
Guity ineligible for withholding of removal and CAT relief.
D. The BIA’s Decision
Garcia-Guity appealed to the BIA. The BIA affirmed the IJ’s decision with
respect to the credibility finding and noted that the inconsistencies between Garcia-
Guity’s testimony and the CFI notes supported that finding. The BIA agreed with
the IJ that the CFI record was reliable. The BIA also upheld the IJ’s determination
that Garcia-Guity failed to provide sufficient corroborating evidence. It agreed
with the IJ that the statements of family members were due less weight.
The BIA concluded that the IJ’s findings on credibility and corroborating
evidence supported its denial of the asylum and withholding of removal claims.
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The BIA also found that Garcia-Guity did not meaningfully challenge the IJ’s
determination that he had not met his burden for CAT relief and, as a result, had
not established eligibility for CAT relief.
This is Garcia-Guity’s petition for review.
II. STANDARDS OF REVIEW
When the BIA “explicitly agree[s] with . . . findings of the immigration
judge, we review the decisions of both the Board and the immigration judge as to
those issues.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).
Otherwise we review the BIA decision only. See id. We review de novo legal
determinations and factual findings for substantial evidence. Id. But to enable
meaningful review of its decision, the BIA must give “reasoned consideration” to
the petitioner’s claims and evidence. Ali v. U.S. Att’y Gen, 931 F.3d 1327, 1333
(11th Cir. 2019). Under a “reasoned-consideration examination,” we look to
whether the BIA has “considered the issues raised and announc[ed] its decision in
terms sufficient to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 803
(11th Cir. 2016) (quotation marks omitted). The BIA is not required to address
“each piece of evidence.” Id. (quotation marks omitted). But the BIA fails to give
reasoned consideration to a claim when it “misstates the contents of the record”
and when it “fails to adequately explain its rejection of logical conclusions.” Id.
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When the BIA does not give a petitioner’s claims reasoned consideration, we
vacate the agency’s decision and remand for further proceedings. Id. An IJ’s
determination of an applicant’s credibility is a factual finding that we review under
the substantial evidence standard. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286
(11th Cir. 2005).
III. DISCUSSION
A. Adverse Credibility Determination
Garcia-Guity says the BIA erred in affirming the IJ’s adverse credibility
finding because it was not supported by substantial evidence. On this record, we
are unable to agree. “Once an adverse credibility finding is made, the burden is on
the applicant [noncitizen] to show that the IJ’s credibility decision was not
supported by ‘specific, cogent reasons’ or was not based on substantial evidence.”
Forgue, 401 F.3d at 1287.
Here, the IJ and BIA gave specific, cogent reasons for finding Garcia-Guity
not credible. There are several inconsistencies between Garcia-Guity’s CFI and
his testimony at the removal hearing. For instance, in his CFI, Garcia-Guity said
that when the 18 gang beat him in 2014 “[t]hey weren’t harassing [him], but they
were just stealing from everybody in town.” And the notes reflect that he
specifically denied having been threatened or harmed based on his race. Yet at the
removal hearing, Garcia-Guity testified that this beating was racially motivated.
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As another example, the CFI notes recount that Garcia-Guity said the gang that
attacked him never threatened or harmed him again. At the removal hearing, in
contrast, he testified that the gang continued to contact him and look for him after
he moved to San Pedro Sula, including breaking into his apartment with the intent
to kill him.
In evaluating adverse credibility findings, this Court distinguishes between
testimony that “merely elaborates upon” prior statements and testimony that
“actually contradicts” and “cannot be squared with” prior statements. Shkambi v.
U.S. Att’y Gen., 584 F.3d 1041, 1050 (11th Cir. 2009) (per curiam) (quotation
marks omitted). The inconsistencies here fall into the second category. Rather
than merely elaborating on his statements during the CFI, Garcia-Guity’s
testimony during his removal hearing directly contradicts his prior statements.
Garcia-Guity’s testimony at his hearing describes persecution that is racially
motivated and sustained, while the notes from his CFI reflect that Garcia-Guity’s
2014 attack was an isolated incident not related to his race but instead part of crime
that many people in his town were experiencing.
Although Garcia-Guity testified that his CFI was rushed and he was not
permitted to fully explain his answers, this does not compel a conclusion that he
was credible. See Forgue, 401 F.3d at 1287 (“A credibility determination, like any
fact finding, may not be overturned unless the record compels it.” (quotation marks
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omitted)). Again here, and as the IJ and BIA recognized, Garcia-Guity’s CFI
answers (though often a single word) directly contradicted his testimony at the
removal hearing. For example, at the removal hearing Garcia-Guity testified that
the gang continued to threaten him after the 2014 attack. But the notes from his
CFI show that when asked whether the gang “threaten[ed] or harm[ed] [him]
again” Garcia-Guity replied “[n]o.” Neither does the fact that the CFI notes are not
a verbatim transcript compel a finding that Garcia-Guity is credible. As explained,
the CFI notes do not merely omit information revealed in Garcia-Guity’s hearing
testimony, but in multiple instances the notes directly contradict his subsequent
testimony.
B. Corroborating Evidence
“[I]n the absence of corroborating evidence, an adverse credibility
determination may be sufficient to support the denial” of asylum. Mohammed v.
U.S. Att’y Gen., 547 F.3d 1340, 1345 (11th Cir. 2008). However, “an adverse
credibility determination does not alleviate the IJ’s duty to consider other evidence
produced by an asylum applicant. That is, the IJ must still consider all evidence
introduced by the applicant.” Forgue, 401 F.3d at 1287. Garcia-Guity says the
BIA and IJ failed to give reasoned consideration to three pieces of evidence
corroborating his testimony: (1) written statements by his brother, sister, and uncle;
(2) a radiologist report and other medical records detailing the injuries to Garcia-
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Guity’s leg as a result of the 2014 beating; and (3) written statements by officers of
the Garifuna Nation and a United States government contractor in Honduras. We
are unable to agree with Garcia-Guity as to the statements from his family
members and the radiology report. However, we conclude that neither the BIA nor
the IJ gave reasoned consideration to the statements from the Garifuna Nation
officers and the United States government contractor.
Garcia-Guity is right that neither the IJ nor the BIA analyzed the radiologist
report. But the report only supports his claim that he was injured, not the
circumstances surrounding the injury. The report finds that “[m]ultiple views of
[Garcia-Guity’s] left femur demonstrate comminuted fracture of the mid femoral
shaft” and confirms the presence of an “[i]ntramedullary nail.” In other words, the
radiology report shows that Garcia-Guity had metal put in his leg. That supports
Garcia-Guity’s statement from his CFI that he had platinum inserted into his leg as
a result of the 2014 beating. But the inconsistency between his CFI and his
subsequent testimony relates to the reasons why the beating occurred—was it
racially motivated or an isolated incident unconnected to his race? The radiology
report provides no insight into how or why Garcia-Guity was injured. It thus does
not corroborate his subsequent testimony.
As for the written statements from his family members, the BIA evaluated
this evidence. The BIA concluded that the IJ “properly determined that the
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statements from his family members were afforded limited probative value as they
were prepared by interested witnesses” and cited to a case finding that letters from
interested witnesses not subject to cross-examination are afforded little weight.
We cannot say the BIA was “merely react[ing]” with respect to this evidence.
Jeune, 810 F.3d at 803 (quotation marks omitted).
Nevertheless, the BIA and IJ decisions fall short of reasoned consideration
because neither decision gives any consideration at all to the written statements
from the officers of the Garifuna Nation and the U.S. government contractor.1
Indeed, the decisions appear to contradict the statements of the officers and the
contractor. For example, the statement from the officers of the Garifuna Nation
says they “reviewed the case of Mr. Garcia Guity and can confirm that the abuses
he endured because of racism are consistent with the experiences of many of our
people in Honduras.” And the officers give examples of attacks similar to what
Garcia-Guity experienced, such as when one of the officer’s nephews was “beaten
so severely that he was hospitalized,” which “happened because of racism against
1 The government says we lack jurisdiction to consider this evidence because Garcia-Guity did not exhaust these arguments before the BIA. However, our precedent says we cannot consider claims not raised before the BIA. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam) (holding that the Court lacked jurisdiction to review adverse credibility determination where non-citizen did not challenge the IJ’s adverse credibility determination at all before the BIA). Before the BIA in his case here, Garcia-Guity challenged the adverse credibility determination as well as the IJ’s finding that he presented insufficient corroborating evidence. So the BIA was required to consider “all evidence” related to that claim. Forgue, 401 F.3d at 1287. We have jurisdiction to review whether it met that requirement. 15 USCA11 Case: 20-12758 Date Filed: 08/06/2021 Page: 16 of 18
Garifuna people.” The statement from the U.S. contractor Jim Bach provides
“context of the Garifuna people in Honduras and the fear claim that Robert Juvener
Garcia Guity has experienced.” Bach worked in Honduras for two years and
“spent quite a bit of time with Garifuna community members” during which he
“learn[ed] about . . . human rights abuses.” Bach’s statement describes how “[o]n
a daily basis The Garifuna are subject to various forms of prejudice and racism”
including “violence against individuals, especially those living outside of majority
Garifuna communities.”
These written statements are critical because, as described above, the only
other evidence describing the persecution of the Garifuna in Honduras—the
statements from Garcia-Guity’s family members—were found not probative.
Unlike Garcia-Guity’s family members, the officers of the Garifuna Nation and
Bach are not interested witnesses. And their statements lend support to Garcia-
Guity’s testimony that his 2014 beating was on account of his race, which is the
key discrepancy between his CFI and subsequent testimony. While the BIA is not
required to consider every piece of evidence, the statement that Garcia-Guity
proffered no evidence that corroborates his claim misstates the record. Jeune, 810
F.3d at 803. And the BIA’s failure to explain why it discounted these pieces of
evidence constitutes a failure to “adequately explain its rejection of logical
conclusions,” namely the conclusion that Garcia-Guity was the victim of, and
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feared being the future victim of, common forms of persecution experienced by the
Garifuna people. Id. Thus, the BIA and IJ decisions did not fully consider
whether his testimony was corroborated. In light of this deficiency, we are unable
to meaningfully review the BIA’s decision regarding Garcia-Guity’s claim for
asylum. Because the BIA rested its decision on the credibility determination and
lack of corroboration, it did not evaluate Garcia-Guity’s claim regarding future
persecution. Therefore, our holding that the BIA failed to give reasoned
consideration to Garcia-Guity’s corroborating evidence requires remand as to both
Garcia Guity’s past and future persecution claims.
We thus grant Garcia-Guity’s petition, vacate the decision of the BIA, and
remand for further proceedings.
C. Withholding of Removal and Relief Under the CAT
We also vacate the BIA’s decision and remand with respect to Garcia-
Guity’s claims that he is entitled to withholding of removal and relief under the
CAT. Remand is necessary on the withholding of removal question because the
BIA’s decision does not address withholding of removal at all. See Ali, 931 F.3d
at 1333 (explaining that remand for lack of reasoned consideration is proper where
“the agency decision is so fundamentally incomplete” (quotation marks omitted)).
And the BIA’s conclusion that Garcia-Guity did not meaningfully challenge the
IJ’s denial of his CAT claim is not supported by his briefing before the Board,
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which expressly argued that the IJ erred on this point and that his evidence
regarding his fear of persecution demonstrates his entitlement to relief under the
CAT as well. Thus, because we hold that the BIA failed to give reasoned
consideration to Garcia-Guity’s corroborating evidence regarding asylum, we
remand on the CAT issue as well.
IV. CONCLUSION
For these reasons, we GRANT Garcia-Guity’s petition for review,
VACATE the decision of the BIA, and REMAND for further proceedings
consistent with this opinion.