Nolasco-Yok v. Barr ( 2020 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 19-1402
MONICA NOLASCO-YOK,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
Daniel T. Welch, with whom Kevin MacMurray and MacMurray &
Associates were on brief, for petitioner.
Rachel Browning, with whom Joseph H. Hunt, Assistant Attorney
General, Civil Division, Jessica E. Sherman, Senior Litigation
Counsel, Office of Immigration Litigation, and Juria L. Jones,
Trial Attorney, Office of Immigration Litigation, Civil Division,
U.S. Department of Justice, were on brief, for respondent.
February 26, 2020
LIPEZ, Circuit Judge. Monica Nolasco-Yok petitions for
review of a ruling by the Board of Immigration Appeals ("BIA")
declining to reconsider its decision affirming denial of her
application for asylum, withholding of removal, and relief under
the Convention Against Torture. Our review is governed by the
"extremely deferential" abuse-of-discretion standard, under which
we must uphold the BIA's decision unless it is "arbitrary,
irrational, or contrary to law." See Liu v. Mukasey, 553 F.3d 37,
40 (1st Cir. 2009) (quoting Abdullah v. Gonzales, 461 F.3d 92, 99
(1st Cir. 2006)). Finding none of those attributes in the BIA's
decision, we deny the petition for review.
We recount the facts relevant to our disposition.
Nolasco-Yok is a native and citizen of Guatemala who entered the
United States without inspection or admission in 2014. After the
Department of Homeland Security initiated removal proceedings
against her, Nolasco-Yok filed an application for relief from
removal. Her application asserted that she had been persecuted by
gang members in Guatemala on the basis of her membership in her
nuclear family, a protected social group.1 She submitted a sworn
1Nolasco-Yok argues extensively in her petition that Matter
of L-E-A-, 27 I. & N. Dec. 581 (A.G. 2019), a recent decision that
arguably calls into question the cognizability of certain family-
based asylum claims, is not binding on this court. This argument
is irrelevant because neither the BIA nor the IJ relied on Matter
of L-E-A-, and both assumed that family constitutes a particular
social group under the Immigration & Nationality Act. The
government has also disclaimed any reliance on Matter of L-E-A-.
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declaration stating that the gang threatened her as retaliation
for her sister's refusal to join the gang, even after her sister
was raped and threatened by members of the gang.
However, at her merits hearing, Nolasco-Yok told a
different story: on four occasions, her attorney asked her why
the gang members had threatened her, and all four times she stated
that their threats were designed to recruit her to help them sell
drugs. Nolasco-Yok did testify, consistent with her declaration,
that her sister had been raped by gang members in Guatemala who
sought to recruit her sister to the gang, but not once did she
state that her family membership was the reason for her
persecution. No witnesses other than Nolasco-Yok testified at the
hearing or supplied affidavits.
The Immigration Judge ("IJ") assumed Nolasco-Yok to be
a credible witness, but in light of her oral testimony, concluded
that she had not demonstrated that her family membership
constituted a "central reason" for the gang's threats. In her
discussion of Nolasco-Yok's hearing testimony, the IJ stated that
gang members raped her sister and that they tried to recruit both
Nolasco-Yok and her sister to the gang. The IJ did not mention
the order in which the recruitment efforts and the rape of Nolasco-
Yok's sister occurred.
The BIA affirmed the IJ's decision in a brief opinion
that adopted the IJ's factual findings and legal reasoning. The
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BIA's opinion recounted the IJ's description of Nolasco-Yok's
testimony as follows:
The Immigration Judge assumed that the
respondent was a credible witness, and she
testified that while living in Guatemala, gang
members told her and her sister that if they
did not join their gang, the gang would kill
them (IJ at 4). The respondent's sister was
subsequently raped by gang members, and both
the respondent and her sister continued to
receive written death threats from the gang
(IJ at 4-5).
Nolasco-Yok filed a motion for reconsideration, focusing
primarily on the timeline of events related to her sister's rape.2
First, she asserted that the IJ's decision granted insufficient
weight to the fact that gang members raped her sister before they
began threatening Nolasco-Yok. By her logic, adequate
consideration of that order of events would have lent credence to
her argument that the gang threatened her as retaliation for her
sister's refusal to join the gang. Then, Nolasco-Yok argued that
the BIA's decision exacerbated that deficiency by actually
distorting the timeline of events by stating that her sister was
raped after the threats began against Nolasco-Yok.
The BIA issued an order acknowledging the error but
denying reconsideration on that basis. Specifically, the BIA
2Nolasco-Yok's motion for reconsideration also asserted that
the BIA applied the wrong standard of proof to her asserted fear
of future persecution. She does not pursue this issue in her
petition.
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concluded that the timeline, even properly construed, was
insufficient to overcome Nolasco-Yok's hearing testimony that the
gang targeted her because they wanted her to join them, not because
of her family status. Nolasco-Yok asserts that the BIA's failure
to substantively correct for this error was an abuse of discretion.
We disagree. The IJ's decision to accord more weight to
Nolasco-Yok's own explanation for the gang's threats than any
alternative explanation that could be derived from the timeline
was within its discretion as the factfinder. See Pan v. Gonzales,
489 F.3d 80, 87 (1st Cir. 2007) ("So long as the IJ has given
reasoned consideration to the evidence as a whole, made supportable
findings, and adequately explained her reasoning, no more is
exigible."). That is true even though the timeline arguably
supported other evidence submitted by Nolasco-Yok -- namely her
application and sworn declaration -- because the IJ was likewise
entitled to discount the value of those uncorroborated written
submissions and accord more weight to Nolasco-Yok's oral
testimony. See Avelar Gonzalez v. Whitaker, 908 F.3d 820, 826–27
(1st Cir. 2018) (holding that even in the absence of an adverse
credibility finding, a court may accord less weight to
uncorroborated evidence submitted by an asylum applicant); see
also Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir. 2008)
(explaining that an IJ may give different weight to different
pieces of evidence).
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In other words, in light of Nolasco-Yok's hearing
testimony, the IJ's failure to specify the timeline, and the BIA's
subsequent error with respect to it, did not matter. Nolasco-Yok
simply did not make her case that she was persecuted because of
her relationship to her sister, i.e., on the basis of her family
membership. Hence, neither the IJ nor the BIA was required to
conduct a mixed motive analysis -- there was no need to assess
whether family membership was a central reason for Nolasco-Yok's
persecution when the IJ and BIA both properly concluded that it
was not a reason at all. Even so, to the extent the IJ and BIA
referred to the mixed motive doctrine, both clearly understood
that family membership only had to be a central reason for Nolasco-
Yok's persecution.
Accordingly, we cannot say that the BIA's denial of
Nolasco-Yok's motion to reconsider was an abuse of discretion.
Nolasco-Yok's petition is therefore denied.
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