Estrada Garcia v. Atty Gen USA ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1804
___________
MAURICIO FERNANDO ESTRADA GARCIA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-231-129)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 21, 2011
Before: HARDIMAN, COWEN and BARRY, Circuit Judges
(Opinion filed: September 23, 2011)
___________
OPINION
___________
PER CURIAM
Mauricio Fernando Estrada Garcia petitions for review of a decision by the Board
of Immigration Appeals (“BIA”) affirming an immigration judge’s decision denying his
applications for withholding of removal and protection under the Convention Against
Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
I.
Garcia, a citizen of Guatemala, entered the United States in October 1988. In May
2007, he was detained by the Department of Homeland Security (“DHS”) which issued a
Notice to Appear charging him with being subject to removal pursuant to the
Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).
Garcia subsequently filed an application for asylum, withholding of removal, and for
relief pursuant to the United Nations Convention against Torture (“CAT”). In
immigration court, he conceded that he was inadmissible as charged and withdrew his
claim for asylum.
Garcia claimed that he was persecuted in Guatemala due to his membership in,
and organizing activities for, a labor union and that he feared for his life if he was
returned to that country. At his hearing before an immigration judge (“IJ”), he testified
about three incidents he claimed amounted to persecution. First, he described being
accosted in January 1988 by two unknown men who brandished a gun and threatened to
kill Garcia if he did not stay away from the union. Second, he described a union protest
that was disrupted without violence by the Guatemalan military. He finally testified
about a February 1988 assault in which a group of men in military uniforms attacked him
without explanation, leaving him unconscious for five days and hospitalized for fifteen.
After the February assault, he hid at his aunt’s home for three months, then moved to
Mexico and, later, the United States. He further testified that until his death in 1992, his
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father frequently told him that the authorities were searching for him.
In November 2008, the IJ noted that the January 1988 incident was not referenced
in any way in Garcia’s I-589, and held that his explanation for the omission—that he did
not think it would be necessary to include it in that statement and preferred to explain it
in person—was unsatisfactory. The IJ therefore determined that he had not testified
credibly. Even assuming Garcia had testified credibly, the IJ noted that the harm Garcia
claimed to have suffered did not constitute persecution and that he did not establish a
well-founded fear of future persecution. Accordingly, the IJ ordered Garcia’s removal.
On appeal of that order, the BIA held that the IJ’s credibility determination was
supported by specific, cogent reasons and that Garcia did not provide a reasonable
explanation. The Board likewise agreed with the IJ’s alternative reasoning. Accordingly,
they affirmed the determination and dismissed his appeal. Garcia timely petitioned for
review.1
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). This Court
reviews the decision of the Board and, to the extent deferred to or incorporated therein,
the decision of the immigration judge. Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.
1
Garcia’s petition was initially filed before the United States Court of Appeals for
the Second Circuit; however, because his removal proceedings were completed in
Newark, New Jersey, that Court granted his motion to transfer the petition to this Court.
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2003). We review factual findings, including any credibility determinations, under a
substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005).
Under that standard, we must uphold the BIA’s decision unless the evidence not only
supports a contrary conclusion, but compels it. See Abdille v. Ashcroft, 242 F.3d 477,
483-84 (3d Cir. 2001). An applicant bears the burden of proving eligibility for
withholding of removal. See 8 U.S.C. § 1231(b)(3)(C).2
III.
As an initial matter, we note that Garcia has presented no argument regarding the
denial of his CAT claim. Accordingly, we deem any appeal of the that issue to have been
waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).
We conclude that substantial evidence supports the decision to reject Garcia’s
credibility. His I-589 was, as noted by the IJ, limited to a discussion of the claimed
February 1988 assault. Garcia’s explanation for omitting any account of the January
1988 assault was considered and rejected by both the IJ and the Board. We discern no
2
Because Garcia filed his application for withholding of removal after the
enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon
which the adverse credibility finding is based need not go to the heart of his claim. See
Lin v. Att’y Gen., 543 F.3d 114, 119 n.5 (3d Cir. 2008). Rather, the REAL ID Act
permits credibility determinations to be based on observations of Garcia’s demeanor, the
plausibility of his story, and the consistency of his statements. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n.7 (3d Cir. 2006). We
have not applied the REAL ID Act standard in a precedential opinion. Here, because the
inconsistencies identified by the IJ relate to the heart of Garcia’s claims, and would thus
support an adverse credibility determination even under the pre-REAL ID Act standard,
we need not consider whether 8 U.S.C. § 1158(b)(1)(B)(iii) is consistent with due
process. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (canvassing Circuit law
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error in that rejection. Accordingly, the record supports the determination that Garcia
was not credible. It likewise supports the determination that he failed to meet his burden
to demonstrate that he was entitled to relief. See 8 U.S.C. § 1231(b)(3)(C). In light of
that failure, we need not address the IJ’s or the BIA’s alternative reasoning.
IV.
For the reasons we have given, we will deny Garcia’s petition for review.
Garcia’s motion for stay of removal is denied.
on the provision).
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