Wend Diaz-De Rojas v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 7, 2018
• Docket: 18-11097
• Status: Unpublished

Opinion

Case: 18-11097 Date Filed: 11/07/2018 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11097 Non-Argument Calendar ________________________

Agency No. A202-073-728

WENDY DIAZ-DE ROJAS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(November 7, 2018)

Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-11097 Date Filed: 11/07/2018 Page: 2 of 14

Wendy Diaz-De Rojas seeks review of the Board of Immigration Appeals’s

final order affirming the Immigration Judge’s denial of her application for asylum

and withholding of removal. On appeal, Diaz-De Rojas argues that the record

compels reversal of the agency’s adverse credibility finding and the resulting

denial of her asylum and withholding-of-removal claims. After careful review, we

hold (1) that we lack jurisdiction to review the BIA’s determination that Diaz-De

Rojas’s asylum claim was untimely and (2) that the record compels a finding of

past persecution and that the BIA did not expressly find that the government

rebutted the corresponding presumption of future persecution.

I

Wendy Diaz-De Rojas, a native and citizen of El Salvador, entered the

United States without inspection on September 1, 2014. Just more than a week

later, she was interviewed by a border patrol agent. According to the agent’s

record, Diaz-De Rojas stated that her purpose for entering was “to work and live in

the United States” for “eight years.” When asked if she feared persecution or

torture if she were to be sent back to her country, Diaz De-Rojas responded, “no.”

She said the same thing when asked if she had any fear about being returned to her

home country and when asked if she would be harmed if she were returned to her

home country.

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A couple of weeks after her border-patrol interview, Diaz-De Rojas had a

credible-fear interview with an asylum officer. According to the interview form,

Diaz stated that her husband, Jairo Rojas, abused her physically and

psychologically for many years beginning in 2012, and would continue to do so if

she were to return to El Salvador. Diaz also stated that Jairo “forced [her] to have

intercourse with him one time” and that at other times she consented “because

[she] was afraid that if [she] said no, he would hurt [her].” When asked if she ever

reported Jairo to the police, Diaz-De Rojas stated she did not because she “was

afraid people might start talking” about her, but she conceded that the police

“would have protected [her]” had she reported him. She also noted that she tried to

go to the police once, but Jairo threatened her, saying, “if you do that, I will do

something worse to you.” Finally, when asked why she told officials at the border

that she was not afraid to return to El Salvador, Diaz-De Rojas replied that she did

not remember them asking her that.

Nearly two years later, in June 2016, Diaz-De Rojas filed an application for

asylum, withholding of removal, and relief under the Convention Against Torture,

based on membership in a particular social group, specifically “Salvadoran women

in a domestic relationship which they cannot leave.” In the application, she

asserted that she was “abused physically and verbally, and threatened with

kidnapping and death numerous times by [her] ex-husband.” She further stated

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that Jairo raped her in 2012 after a heated argument, that she threatened to leave

him, and that he told her that she would end up in a coffin if she tried. In the

application, when asked if she feared harm or mistreatment if she were to return

home, she checked “yes” and explained that she was afraid of being “kidnapped,

raped, beaten and killed by [her] ex-husband, in retribution for leaving him.”

Diaz-De Rojas stated that she was also afraid to return because the police did not

protect women who were victims of domestic violence.

In support of her statements, Diaz-De Rojas attached several documents to

her application: a letter confirming her participation in domestic-violence

counseling group sessions; a psychological evaluation by a mental-health

professional; the El Salvador 2016 Human Rights Report, which noted that

“[v]iolence against women, including domestic violence, was a widespread and

serious problem”; and the El Salvador 2017 Crime & Safety Report, which noted

the prevalence of rape and stated that “many victims choose not to participate in

the investigation and prosecution of the crime for fear of not being treated

respectfully by authorities.”

Diaz-De Rojas also attached her divorce decree; a letter from her pastor that

stated that he witnessed her relationship with Jairo “became difficult by the year

2012”; a letter from her sister attesting that Diaz-De Rojas told her about Jairo’s

physical and sexual aggressions and that Diaz-De Rojas had no option but to come

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to the United States to get away from Jairo’s harassment; and a letter from her

mother stating that she noticed the physical and psychological abuse that Diaz-De

Rojas had suffered from Jairo and that Diaz-De Rojas would not be safe in El

Salvador because of him.

At her asylum and withholding-of-removal hearing, Diaz-De Rojas testified

that she remembered being asked by the border-patrol agent a few days after her

entry if she was afraid to return to El Salvador. When asked why she told the

agent “no” she stated that she was afraid and “didn’t understand the word in truth.”

Diaz-De Rojas also testified that she “was ill” when the border agent asked her if

she feared persecution or torture if she were sent back to her home country, and

that, while she generally understood the meaning of “persecuted or tortured,” on

“[t]hat day they asked [her she] didn’t understand the word.” Diaz-De Rojas also

recalled telling the border agent that she came to live and work in the United States

for a certain number of years.

At the end of the hearing, the IJ issued an oral decision denying Diaz-De

Rojas’s claims. The IJ first found that her asylum claim was time-barred because

she filed it more than a year after entering the United States. The IJ then made an

adverse credibility finding based on several inconsistencies between Diaz-De

Rojas’s testimony and her prior statements (both those given under oath and those

found in the psychological report). The inconsistencies included, among others,

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that Diaz-De Rojas (1) swore to a border-patrol agent that she did not fear harm if

she had to return to El Salvador but later testified that she did fear harm; (2) stated

in her credible-fear interview that the abuse began in 2012 but testified that the

abuse began in 2010; (3) told a psychologist that she slept in a car to escape Jairo’s

rage but testified that Jairo dragged her to their car and made her sleep there on

multiple occasions; and (4) told the asylum officer that the police would have

protected her had she gone to them but testified that she did not go to the police

because they would not do anything. The IJ also found that, even if Diaz were

credible and had suffered past persecution, she was not eligible for withholding of

removal or CAT relief because the government had shown that she could avoid

persecution by relocating in El Salvador and Diaz had not shown that more likely

than not she would be tortured with the acquiescence of the Salvadorian

government. Accordingly, it denied her claims for asylum, withholding of

removal, and CAT relief.

Diaz-De Rojas appealed the IJ’s decision. On appeal, the BIA affirmed the

IJ’s finding that she was ineligible for asylum and withholding of removal.1 First,

the BIA agreed with the IJ that Diaz-De Rojas was ineligible for asylum because

her claim was untimely and she did not establish that extraordinary circumstances

excused her late filing. Second, the BIA determined that she did not satisfy her

1 The BIA also noted that Diaz-De Rojas had waived her Convention Against Torture claim by failing to argue it on appeal. 6 Case: 18-11097 Date Filed: 11/07/2018 Page: 7 of 14

burden of proving eligibility for withholding of removal. The BIA concluded that

there was no clear error in the IJ’s adverse credibility finding because the IJ based

its findings on specific and cogent reasons, including inconsistencies in Diaz’s

testimony, statements to border patrol, statements in her credible-fear interview,

and statements in her psychological evaluation. The BIA concluded that these

inconsistencies sufficiently supported the IJ’s adverse credibility determination,

and further found that, without credible testimony, the record was insufficient to

establish that she suffered past persecution or would face future persecution on

account of a protected ground.

II

We first consider whether we have jurisdiction over Diaz-De Rojas’s asylum

claim, which the IJ and BIA dismissed for untimeliness. Although neither party

raised this argument, we are “obligated to inquire into subject-matter jurisdiction

sua sponte whenever it may be lacking.” Chacon-Botero v. U.S. Atty. Gen., 427

F.3d 954, 956 (11th Cir. 2005) (quoting Cadet v. Bulger, 377 F.3d 1173, 1179

(11th Cir. 2004)).

Under the INA, this Court lacks jurisdiction to review the IJ’s and BIA’s

determination that an asylum applicant filed an untimely application and failed to

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establish changed or extraordinary circumstances to excuse her untimely filing.2

See INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). This is true even when the agencies

reach an alternative finding that the claim also fails on its merits. Chacon-Botero,

427 F.3d at 956–57 (holding that this Court lacked jurisdiction over a petitioner’s

asylum claim denied as untimely, even when the agency had found in the

alternative that the claim failed on the merits).

Because the BIA in this case dismissed Diaz-De Rojas’s asylum claim as

untimely, we lack jurisdiction to review this claim. See INA § 208(a)(3),

8 U.S.C. § 1158(a)(3). Consequently, we also lack jurisdiction to review the BIA’s

alternative determination that, based on its adverse credibility finding, the asylum

claim fails on the merits. Chacon-Botero, 427 F.3d at 957. Accordingly, we

dismiss Diaz-De Rojas’s asylum claim for lack of jurisdiction.

III

We next consider Diaz-De Rojas’s challenge to the BIA’s denial of her

withholding-of-removal claim based on its adverse credibility finding. We review

the BIA’s factual determinations, including credibility determinations, under the

substantial-evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th

Cir. 2005) (citing D–Muhumed v. United States Att’y Gen., 388 F.3d 814, 817–18

2 We review the BIA’s decision, except to the extent the BIA expressly adopts the IJ’s decision—in which case we also review the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Here, the BIA did not expressly adopt the IJ’s decision, so we review the BIA’s decision. 8 Case: 18-11097 Date Filed: 11/07/2018 Page: 9 of 14

(11th Cir. 2004)). Under this test, we must affirm the BIA’s factual findings if

they are “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230

(11th Cir. 2005) (quotation omitted). In making this determination, “[w]e view the

record evidence in the light most favorable to the agency’s decision and draw all

inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (en banc). Indeed, to reverse the BIA’s factual findings “[we]

must find not only that the evidence supports a contrary conclusion, but that it

compels one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir.

2001) (citation omitted).

Turning to the relevant provisions of the INA, an applicant is entitled to

withholding of removal if she can show that her life or freedom would be

threatened in the country of removal on account of her race, religion, nationality,

membership in a particular social group, or political opinion. INA § 241(b)(3)(A),

8 U.S.C. § 1231(b)(3)(A). An applicant bears the burden of showing that she will

“more likely than not” suffer persecution on account of being a member of one of

these protected groups. Sepulveda, 401 F.3d at 1232. If an applicant

demonstrates past persecution, she is entitled to a rebuttable presumption that she

has a well-founded fear of future persecution. Ruiz v. U.S. Atty. Gen., 440 F.3d

1247, 1257 (11th Cir. 2006). The government may, in turn, “rebut this

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presumption if it shows, by a preponderance of the evidence, that either (1) the

conditions in the country have changed or (2) the applicant could

avoid future persecution by relocating within the country if, ‘under all the

circumstances, it would be reasonable to expect the applicant to do so.’” De

Santamaria v. U.S. Atty. Gen., 525 F.3d 999, 1012 (11th Cir. 2008) (citing 8 C.F.R.

§ 208.13(b)(1)(i)).

An applicant must establish eligibility for relief by offering “credible, direct,

and specific evidence in the record.” Forgue, 401 F.3d at 1287 (citation omitted).

A credibility determination should be based on the totality of the circumstances,

including: (1) “the demeanor, candor, or responsiveness of the applicant”; (2) the

“inherent plausibility” of the applicant’s account; (3) the consistency between the

applicant’s statements; (4) the “internal consistency” of each statement; and (5) the

consistency of the applicant’s statements with other record evidence.3 INA

§ 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C). “Indications of reliable testimony

include consistency on direct examination, consistency with the written

application, and the absence of embellishments.” Ruiz, 440 F.3d at 1255. In

contrast, an adverse credibility determination may be based on inconsistencies,

3 We have faulted, for example, an IJ’s reliance solely on inconsistencies between an applicant’s testimony at her airport interview and her subsequent testimony, because the IJ failed to consider the circumstances in which the airport statements were made. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1279 (11th Cir. 2009). In considering whether statements qualify as contradictions rather than mere elaboration, this Court has instructed that an IJ should consider that an alien in the airport is not represented by counsel and may be intimidated by police questioning, particularly if the alien was a victim of government abuse. Id. 10 Case: 18-11097 Date Filed: 11/07/2018 Page: 11 of 14

inaccuracies, or falsehoods, regardless of whether they relate to the “heart” of an

applicant’s claim. INA § 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C).

If the BIA finds an applicant not credible, it must make an explicit adverse

credibility finding and offer “specific, cogent reasons” for its finding. Shkambi v.

U.S. Atty. Gen., 584 F.3d 1041, 1049 (11th Cir. 2009) (internal citation omitted).

The BIA need not accept an applicant’s proffered explanation for inconsistencies

in her testimony if the explanation does not compel a finding that the applicant was

credible. Id. at 1050. Once the BIA has made an adverse credibility finding, the

applicant bears the burden of showing that the finding was not supported by

“specific, cogent reasons or was not based on substantial evidence.” Forgue, 401

F.3d at 1287.

If an alien is found credible, her testimony may be sufficient, without

corroboration, to carry her burden of proof in establishing eligibility for relief

from removal. Id. “Conversely, an adverse credibility determination alone may be

sufficient to support the denial of an asylum application.” Id. An adverse

credibility determination does not, however, eliminate the factfinder’s duty to

consider other evidence an applicant submits. Id.

The BIA in this case provided specific, cogent reasons for its adverse

credibility finding, including several inconsistencies in Diaz-De Rojas’s testimony,

statements to border patrol, statements in her credible-fear interview, and

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statements in her psychological evaluation. 4 Specifically, the BIA noted that—in

direct contradiction to the testimony she gave in her credible-fear interview—Diaz-

De Rojas told border patrol that she had no fear of persecution or torture if she

returned to El Salvador and that she came to the United States only to work and

live for eight years. See INA § 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C). The BIA

found her explanation that she did not understand the words “torture or

persecution” unpersuasive, given her other answers to border patrol and her

college-level education. The BIA also identified Diaz’s inconsistent testimony

regarding the length and severity of her abuse, including the year in which it began

and whether her husband forced her to sleep in their car or whether she voluntarily

slept there to avoid his rage. 5

While these inconsistencies are subtle rather than blatant, the INA instructs

that an adverse credibility determination may be based on inconsistencies,

regardless of whether they relate to “the heart of an applicant’s claim.” INA

§ 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C). We may not reverse the BIA’s factual

4 The parties disagree about whether the BIA improperly considered as inconsistent Diaz-De Rojas’s testimony concerning how many times she was forcibly raped despite saying “no” and how many times she instead consented out of fear. Because we conclude that the BIA’s decision is sufficiently supported by other inconsistencies, we need not consider whether the BIA properly relied on supposed inconsistencies in Diaz-De Rojas’s rape-related statements. 5 The IJ also noted several inconsistencies in Diaz-De Rojas’s testimony concerning her decision not to go to the police, including that she initially noted that she did not go to the police because they would not have done anything, but told the asylum officer that the police would have protected her had she gone to them.

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findings simply because “the evidence supports a contrary conclusion”; rather, we

may reverse only if the evidence truly “compels” a contrary conclusion.

Farquharson, 246 F.3d at 1320. That is not the case here. Although the decision

is a close call, “the mere fact that the record may support a contrary conclusion is

not enough to justify a reversal.” Ruiz, 440 F.3d at 1255.

The BIA did not explain, however, its basis for finding that “[w]ithout

credible testimony, the record evidence is insufficient to establish that the

respondent suffered past persecution or will face future persecution on account of a

protected ground.” The letters from Diaz-De Rojas’s mother, sister, and pastor

support the conclusion that she was in a toxic marriage in El Salvador and that her

ex-husband frequently abused her. And the country reports support the conclusion

that spousal abuse against women is socially acceptable in El Salvador.

Combined, these items compel a finding of past persecution, which gives rise to a

rebuttable presumption of future persecution. See 8 C.F.R. § 208.16(b)(1)(i); Ruiz,

440 F.3d at 1257. Although the record also indicates changes in circumstances that

could perhaps rebut the presumption of future persecution, the BIA’s opinion does

not find that the government carried this burden, and indeed, appears to rest on a

finding that there was no showing of past persecution in the first place.

In sum, we uphold the BIA’s adverse credibility finding because, although

the record as a whole could be read to support a finding of credibility, it does not

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compel such a finding. But because the record compels a finding of past

persecution, and because the BIA did not expressly find that the government

rebutted the corresponding presumption of future persecution, we must grant the

petition in part and remand to the BIA for consideration of whether Diaz-De Rojas

has shown that she is eligible for withholding of removal despite the adverse

credibility finding.

IV

Because we lack jurisdiction to review the BIA’s timeliness determination,

we dismiss the portion of Diaz-De Rojas’s appeal relating to her petition for

asylum. But because the BIA’s decision does not address whether the government

rebutted the presumption that Diaz-De Rojas will suffer future persecution, we

grant the petition in part and remand to the BIA for further consideration of her

withholding of removal claim.

PETITION DISMISSED IN PART AND GRANTED IN PART.