Aguilar-Escoto v. Sessions , 874 F.3d 334 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1090
IRMA AGUILAR-ESCOTO,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Carlos E. Estrada, with whom Estrada Law Office was on brief,
for petitioner.
Yanal H. Yousef, Trial Attorney, Office of Immigration
Litigation, Civil Division, with whom Anthony P. Nicastro,
Assistant Director, Office of Immigration Litigation, and Benjamin
C. Mizer, Principal Deputy, Assistant Attorney General, Civil
Division, were on brief, for respondent.
October 27, 2017
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions, III has been substituted for former Attorney
General Loretta E. Lynch as respondent.
HOWARD, Chief Judge. Petitioner Irma Aguilar-Escoto, a
native and citizen of Honduras, asks us to vacate a Board of
Immigration Appeals ("BIA" or "Board") order rejecting her claim
for withholding of removal. Aguilar's application for relief was
predicated upon alleged domestic violence by her ex-husband.
Because the BIA failed to consider potentially significant
documentary evidence submitted in support of Aguilar's claim, we
vacate the agency's order.
I.
Aguilar first entered the United States in August 2005,
but she was apprehended and removed to Honduras. About four years
later, Aguilar returned to the United States. She was again
apprehended, and the Department of Homeland Security filed a notice
to reinstate her prior removal order. The case was subsequently
referred to Immigration Court.
Aguilar then filed the instant application for
withholding of removal. In order to succeed on a withholding
claim, an applicant must establish that her "life or freedom would
be threatened" in her home country because of her "race, religion,
nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1231(b)(3)(A). In light of her reinstated
removal order, Aguilar was not eligible to apply for asylum, a
separate form of relief for aliens harboring a "well-founded fear
of persecution on account of" a protected ground. 8 U.S.C.
- 2 -
§ 1101(a)(42)(A); see also Garcia v. Sessions, 856 F.3d 27, 33
(1st Cir. 2017).
In March 2013, an immigration judge ("IJ") conducted a
merits hearing. At the hearing, Aguilar testified to suffering
relentless physical, emotional, and sexual abuse by Victor
Gonzalez, whom she married in 1997 and later divorced. The IJ,
however, citing various perceived inconsistencies, found that
Aguilar's testimony was "not credible" and therefore discounted
it.
After rendering this adverse credibility finding, the IJ
went on to separately address the other evidence that Aguilar had
submitted "[a]side from her discredited testimony." Aguilar had
provided "police reports, a family court order, a medical record,
and two declarations" evidencing her abusive relationship with
Gonzalez. According to the IJ, this documentary evidence
"suggest[ed] that between 2004 and 2008, [Gonzalez] struck
[Aguilar] once or twice, threatened [Aguilar] and her family, and
publicly ridiculed and shamed [Aguilar]. . . . As a result,
[Aguilar] sought court-ordered psychological treatment and was
prescribed antidepressants and sedatives . . . ." The IJ did not
question the credibility of Aguilar's documentary evidence but
instead concluded that the abuse reflected therein was not
sufficiently serious and persistent to warrant relief.
- 3 -
Aguilar appealed to the BIA, challenging the IJ's
adverse credibility finding. She also argued that she had
presented sufficient "credible evidence" of her abuse, citing the
documentary materials submitted to the IJ in addition to her
testimony. The BIA dismissed her appeal, holding that the IJ "did
not commit clear error in her adverse credibility determination."
The Board did not so much as mention the IJ's separate treatment
of the documentary evidence. Rather, based solely on its
credibility ruling, the BIA concluded that Aguilar "failed to meet
her burden of proof for asylum." On appeal, the government
concedes that the BIA's reference to asylum was erroneous. Aguilar
did not, and indeed could not, pursue an asylum claim. The Board
went on to conclude that Aguilar was not eligible for withholding
of removal because withholding "has a higher burden of proof" than
asylum.
Aguilar now petitions this court to review the BIA
decision rejecting her withholding of removal claim.1 Again, she
challenges the agency's adverse credibility finding but also
contends that, notwithstanding her credibility, the agency "failed
to consider [her] well-documented claim of past persecution." The
government curiously responds to the first point but declines to
1Aguilar does not challenge the denial of her separate claim
for relief under the Convention Against Torture ("CAT"). Any
argument with respect to the CAT claim is therefore waived.
- 4 -
argue the second, devoting the entirety of its brief to the
credibility of Aguilar's testimony. We now hold that, irrespective
of the supportability of the adverse credibility finding, remand
is required for the BIA to consider Aguilar's potentially
significant documentary evidence.
II.
As a preliminary matter, we must define the scope of our
review. We consider BIA and IJ decisions together where the Board
"adopt[s] and supplement[s]" the IJ's reasoning. Martinez v.
Holder, 734 F.3d 105, 111 n.15 (1st Cir. 2013) (citation omitted).
In the present case, however, even assuming that the BIA adopted
the IJ's credibility ruling, it never acknowledged, much less
adopted, the IJ's separate analysis of the documentary evidence.
We therefore train our focus on the BIA decision. See id.
(focusing on BIA ruling where the Board "affirmed, but did not
adopt, the decision of the IJ").
We review the BIA's legal conclusions de novo and its
findings of fact under the "substantial evidence" standard,
meaning that we will not disturb such findings if they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Xin Qiang Liu v. Lynch, 802
F.3d 69, 74 (1st Cir. 2015) (citation omitted). In our review of
the record, we note that while the BIA need not "discuss every
piece of evidence offered," it is "required to consider all
- 5 -
relevant evidence in the record." Lin v. Mukasey, 521 F.3d 22, 28
(1st Cir. 2008) (emphasis added). Consistent with this obligation,
the Eleventh Circuit has specifically held that "an adverse
credibility determination does not alleviate the BIA's duty to
consider other evidence produced by" an applicant for relief. Hong
Chen v. U.S. Att'y Gen., 231 F. App'x 900, 902 (11th Cir. 2007)
(citing Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005)). Rather, where the applicant provides evidence other than
her own testimony, the agency "must consider that evidence" and
may not "rely solely on an adverse credibility determination."
Forgue, 401 F.3d at 1287. According to the Eleventh Circuit, the
agency's failure to fulfill this duty is grounds for vacating the
BIA decision, irrespective of the merits of the adverse credibility
finding. See Toska v. U.S. Att'y Gen., 194 F. App'x 767, 768 (11th
Cir. 2006); see also Khattak v. Holder, 704 F.3d 197, 208 (1st
Cir. 2013) ("[W]e will remand if the agency fails to state with
sufficient particularity and clarity the reasons for denial of
[relief] or otherwise to offer legally sufficient reasons for its
decision." (citation omitted)).
We agree with the Eleventh Circuit's approach to this
issue, which is consistent with our precedent. See Rasiah v.
Holder, 589 F.3d 1, 6 (1st Cir. 2009) ("An adverse credibility
finding by itself would not automatically doom a claim for
asylum."). The appropriate result in this case follows easily.
- 6 -
Even assuming that its credibility ruling was supportable, the BIA
was required to go further and address whether, setting Aguilar's
testimony to one side, the documentary evidence entitled her to
relief. See Lin, 521 F.3d at 28; Forgue, 401 F.3d at 1287. Indeed,
the IJ expressly recognized that this documentary evidence, if
believed, was sufficient to establish multiple acts of domestic
violence against Aguilar by her ex-husband. In these
circumstances, the BIA's failure to consider or even acknowledge
the evidence requires remand. See Toska, 194 F. App'x at 768;
Khattak, 704 F.3d at 208. We take no position on the merits of
the IJ's holding that the abuse reflected in the documentary
evidence was not sufficiently severe to warrant relief. This issue
is best left to be addressed by the BIA in the first instance.
We note, for the benefit of the agency on remand, that
the Board's failure to consider Aguilar's documentary evidence may
have been rooted in its fundamental misunderstanding of her claim.
Again, the Board appears to have operated under the mistaken
assumption that Aguilar had applied for asylum as well as
withholding of removal. These two grounds for relief are not
identical. For one thing, withholding of removal requires a higher
likelihood of persecution than asylum. See Romilus v. Ashcroft,
385 F.3d 1, 8 (1st Cir. 2004) (noting that applicants for
withholding must satisfy a "more likely than not" standard
(citation omitted)). There is, however, a different sense in which
- 7 -
the asylum standard may be more exacting. Withholding claims "lack
a subjective component and are [thus] concerned only with objective
evidence of future persecution." Paul v. Gonzales, 444 F.3d 148,
155-56 (2d Cir. 2006); see also INS v. Cardoza-Fonseca, 480 U.S.
421, 430 (1987) (explaining that the relevant statutory language
"has no subjective component"). Asylum, by contrast, has both a
subjective and an objective component: it requires a showing that
the applicant "genuinely fears persecution," in addition to proof
that the "fear is objectively reasonable." Makhoul v. Ashcroft,
387 F.3d 75, 80 (1st Cir. 2004). Applicants "typically" seek to
establish the requisite "genuineness" through their "own credible
testimony." Id. at 80-81. An adverse credibility finding thus
may prove fatal to this aspect of an asylum claim. But, because
withholding of removal requires no such genuine belief, a
withholding claim "may, in appropriate instances, be sustained"
despite an adverse credibility finding. Paul, 444 F.3d at 156.
In the present case, the BIA may well have been justified
in concluding that, absent her own credible testimony, Aguilar
failed to establish a subjectively genuine fear that she would be
persecuted upon returning to Honduras. This failure would doom an
asylum claim notwithstanding additional evidence establishing that
a reasonable person in Aguilar's circumstances would have feared
persecution. See Makhoul, 387 F.3d at 80-81. But, in the
withholding context, the inquiry is a strictly objective one. See
- 8 -
Cardoza-Fonseca, 480 U.S. at 430-31. Thus, even after discrediting
Aguilar's testimony, arguably the only evidence that she did in
fact harbor a subjective fear of persecution, the BIA was
nonetheless obliged to consider documentary evidence potentially
capable of establishing her likelihood of suffering further abuse.
Rather than embarking on this objective assessment, the
BIA fell back on the familiar refrain that, because "the applicant
did not establish eligibility for asylum, it follows that she
cannot establish eligibility for withholding of removal, which has
a higher burden of proof." Such a conclusion is unassailable where
the applicant's subjective fear is proven or assumed, and the
denial of the asylum claim turns on the lack of evidence that the
fear was objectively reasonable. See, e.g., Makhoul, 387 F.3d at
81. But the same is not necessarily true where an asylum claim
fails due to a lack of credible testimony establishing the
applicant's subjective fear. The Board's failure to apply the
appropriate, purely objective standard to Aguilar's withholding
claim provides an independent basis for remand. See Kozak v.
Gonzáles, 502 F.3d 34, 38 (1st Cir. 2007) (remanding because "the
BIA applied an inappropriate legal standard"); Castañeda-Castillo
v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007) (remanding "to allow
the matter to be considered anew under the proper legal
standards").
- 9 -
III.
For the foregoing reasons, we VACATE the BIA's order
dismissing Aguilar's appeal and remand for further proceedings
consistent with this opinion.
- 10 -