Morales-Espania v. Lynch ( 2016 )

14-1838
Morales-Espania v. Lynch
BIA
Montante, IJ
A088 935 213
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
7th day of June, two thousand sixteen.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
_____________________________________
MARLO IVON MORALES-ESPANIA,
Petitioner,
v. 14-1838
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jose E. Perez, Law Offices of Jose
Perez, P.C., Syracuse, New York.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; Jesse M. Bless,
Senior Litigation Counsel; Lauren E.
Fascett, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
GRANTED in part and DISMISSED in part.
Petitioner Marlo Ivon Morales-Espania, a native and
citizen of Guatemala, seeks review of a June 13, 2014, decision
of the BIA affirming a December 6, 2012, decision of an
Immigration Judge (“IJ”) denying Morales-Espania’s application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Marlo Ivon
Morales-Espania, No. A088 935 213 (B.I.A. June 13, 2014), aff’g
No. A088 935 213 (Immig. Ct. Buffalo Dec. 6, 2012). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision, including the portions not explicitly discussed
by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
Cir. 2005). The applicable standards of review are well
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established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Asylum and CAT Relief
Under 8 U.S.C. § 1252(d)(1), where a petitioner has failed
to raise a category of relief in his brief to the BIA, we are
without jurisdiction to consider any challenge to the denial
of that relief. Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.
2006). Because Morales-Espania did not challenge the IJ’s
denial of either asylum or CAT relief before the BIA, we lack
jurisdiction to review the denial of those forms of relief.
Withholding of Removal
Adverse Credibility Determination
For applications such as Morales-Espania’s, governed by
the REAL ID Act of 2005, the agency may, considering the totality
of the circumstances, base a credibility finding on an
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, so long as they reasonably support an inference that
the applicant is not credible. 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see also Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We defer “to an IJ’s
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credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
at 167. The substantial evidence standard “requires a certain
minimum level of analysis from the IJ and BIA.” Delgado v.
Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (internal quotation
omitted). In this case, the totality of the circumstances does
not reasonably support an inference that Morales-Espania was
not credible; accordingly, substantial evidence does not
support the adverse credibility determination.
Morales-Espania claimed that he had been persecuted, and
that he feared future persecution, by gang members on account
of his membership in a civic association of businessmen in his
town. Morales-Espania testified that the group, the
Association of Cattlemen and Farmers of Chanmagua (“ASAGACH”
in its Spanish abbreviation), worked with students to prevent
them from using drugs and getting involved with gangs and that
Guatemalan gangs targeted group members because the group
interfered with gang recruitment. The IJ found that
Morales-Espania was not credible because his “statements
regarding the threats made against his life were vague and
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conclusory,” he “had difficulty remembering key details in his
testimony, such as the years in which his father and uncle were
killed,” and he “admitted that he previously lied to immigration
officials to obtain an advantageous outcome.” A.R. 68. The
IJ, however, failed to provide any examples of
Morales-Espania’s vague and conclusory testimony. See
Delgado, 508 F.3d at 705-06. A review of the record shows that
Morales-Espania’s testimony regarding the threats he received
was detailed.
With regard to the death of Morales-Espania’s uncle,
Morales-Espania testified during direct examination that he
could not remember the year his uncle died, and during
cross-examination, which took place a year and a half after
direct examination, he testified that his uncle died in 2001.
During direct examination, Morales-Espania testified that his
father was assassinated in 1995; he was then confronted with
his father’s death certificate, which showed that his father
died in 1994. Morales-Espania testified that he misspoke
because he had not remembered the exact year his father died.
The only contradiction in Morales-Espania’s testimony is that
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he stated that his father died in 1995, before correcting
himself.
Finally, the IJ found Morales-Espania not credible in part
because he “admitted that he previously lied to immigration
officials to obtain an advantageous outcome.” A.R. 68.
Morales-Espania testified that when he first entered the United
States in 2002, he was immediately apprehended by U.S. border
officials. He told the officials that he was Mexican, as he
was instructed to do by the individuals who smuggled him into
the United States, so that he would be returned to Mexico and
have an easier time crossing the border again. He testified
that had he thought he was going to be returned to Guatemala,
he would have told the border officials that he was scared to
return. While an IJ generally may rely on the doctrine falsus
in uno, falsus in omnibus – as the IJ did here to find that
Morales-Espania’s false statement to border officials infected
the entirety of his claim – there are exceptions to that
doctrine. Siewe v. Gonzales, 480 F.3d 160, 170-71 (2d Cir.
2007). Exceptions exist where false evidence was provided in
a situation relating to escape from persecution or where an
alien talking to U.S. officials may not be entirely forthcoming
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because of a fear of government authorities in general. Id.
Notwithstanding these exceptions, the IJ found
Morales-Espania’s statement to U.S. border officials to be the
“most significant[]” basis for the adverse credibility
determination. A.R. 68.
Moreover, “[f]alse evidence that is wholly ancillary to the
alien’s claim may, in some circumstances, be insufficient by
itself to warrant a conclusion that the entirety of the alien’s
uncorroborated material evidence is also false.” Siewe, 480
F.3d at 170. Morales-Espania’s false statement to border
officials is ancillary to his claim that he fears harm from gang
members in Guatemala. This single false statement, together
with one other very minor inconsistency, is insufficient to
sustain an adverse credibility determination. See Xiu Xia Lin,
534 F.3d at 167.
The BIA affirmed the IJ’s adverse credibility
determination without discussing any of the specific reasons
the IJ cited in support of its conclusion that Morales-Espania
was not credible. Instead, the BIA impermissibly engaged in
fact-finding and relied on inconsistencies that the IJ did not
mention or consider. See Weinong Lin v. Holder, 763 F.3d 244,
7
247 (2d Cir. 2014) (observing that “the BIA has no power to find
facts”); 8 C.F.R. § 1003.1(d)(3)(i), (iv). The BIA found that
certain details of Morales-Espania’s testimony regarding
threats from gangs and car accidents allegedly caused by cut
brake lines were inconsistent with testimony from his sister
and brother-in-law. The IJ made no such finding.
Accordingly, the BIA erred in engaging in independent
fact-finding and, considering the totality of the
circumstances, the credibility finding is unsupported by
substantial evidence.
Particular Social Group
The agency concluded in the alternative that even if
Morales-Espania was credible, he did not establish that he was
a member of a particular social group within the meaning of the
immigration statute. The agency omitted considering certain
evidence in reaching its conclusion. Morales-Espania stated
that Guatemalan gang members threatened and attempted to harm
him because of his membership in ASAGACH, an incorporated
organization with bylaws and board members. While the IJ
acknowledged Morales-Espania’s defined group, he did not
analyze whether this group was a particular social group within
8
the meaning of the Act. Instead, he determined that
Morales-Espania’s membership was “incidental to his family’s
status as relatively well-off merchants” and concluded
generally that neither “affluent Guatemalans” nor “shared
opposition to gang violence” constitute a particular social
group. A.R. 69.
Similarly, the BIA concluded that Morales-Espania did not
“sufficiently demonstrate that the business people associated
with farmers and ranchers, who also provide support for the
poor, are perceived, considered, or recognized by Guatemalan
society to be a distinct social group.” A.R. 5. The BIA did
not specifically address the significance of Morales-Espania’s
particular organization nor did it discuss whether members of
that particular organization are perceived as socially distinct
within the town in which it operates. See Matter of W-G-R-,
26 I&N Dec. 208, 217-18 (B.I.A. 2014); see also Paloka v. Holder,
762 F.3d 191, 195-97 (2d Cir. 2014).
The agency additionally concluded that Morales-Espania had
not shown a nexus between any harm he suffered and his group
membership. This finding is also infected by the agency’s
failure to consider Morales-Espania’s actual group: to
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determine whether an applicant was harmed on account of his
membership in a particular social group, the agency must first
correctly identify the group to which the applicant belongs.
Matter of W-G-R-, 26 I&N Dec. at 223-24. This finding is
further infected by the agency’s failure to consider
Morales-Espania’s testimony. Although the agency’s nexus
finding is cast as an alternative to the adverse credibility
determination, the agency failed to credit, or even mention,
Morales-Espania’s testimony that members of ASAGACH were
sometimes threatened by gangs, that gangs wanted the
organization to cease to exist, that his father and uncle were
killed for belonging to the organization, and that he was
personally threatened with death if he did not leave the
organization.
For the foregoing reasons, the petition for review is
GRANTED with regard to withholding of removal and the case is
remanded to the agency. The petition is DISMISSED with regard
to Morales-Espania’s claims for asylum and CAT relief.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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