Ana Duenas-DeCerritos v. Attorney General United States ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-3866
____________
ANA RUTH DUENAS-DECERRITOS;
KEYSI DAYANA CERRITOS-DUENAS;
Petitioners
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board Nos. A206-730-262 & A206-730-263)
Immigration Judge: Leo A. Finston
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 12, 2017
Before: RESTREPO, GREENBERG and FISHER, Circuit Judges.
(Filed: March 9, 2018)
____________
OPINION *
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.
Petitioner Ana Ruth Duenas de Cerritos and her minor daughter, Keysi Dayana
Cerritos Duenas, seek review of a final decision issued by the Board of Immigration
Appeals (BIA). The BIA upheld the Immigration Judge’s denial of Petitioner’s
application for asylum, withholding of removal, and protection under the United Nations
Convention Against Torture (CAT). We will deny the petition.
I.
Petitioner and her daughter are natives and citizens of El Salvador. They entered
the United States, without inspection, in May of 2014 (supposedly to join Petitioner’s
husband who had been in the United States, without legal status, for several years). The
Department of Homeland Security commenced removal proceedings, charging Petitioner
and her daughter with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i). After admitting
all factual allegations and conceding removability, Petitioner filed an application for
asylum, withholding of removal, and protection under the CAT.
Prior to her hearing, Petitioner submitted a signed, written declaration in which
she explained that she was afraid to return to El Salvador because she had been
“threatened by [the Mara 18 gang] and specifically by an individual named Giovanni who
associated . . . with the Maras.” 1 According to the declaration, Giovanni used to transport
Petitioner to town to purchase groceries. But after Giovanni made several unwanted
1
Administrative Record (A.R.) 277.
2
sexual advances and harassing phone calls to Petitioner, she discarded and replaced her
phone’s chip—thereby changing her phone number. Giovanni then threatened Petitioner
and her daughter, stating that he would kill them if she contacted the police. Shortly after
this incident, Petitioner started receiving extortionate phone calls, supposedly from the
Maras, demanding $3,000 in exchange for her safety. She believed the extortionate calls
were linked to Giovanni because “he told [Petitioner] that he had connections with the
Maras.” 2 After several calls from the Maras, she escaped to her sister’s village, and later
entered the United States.
At Petitioner’s hearing before the Immigration Judge (IJ), however, her testimony
deviated from her written declaration in several respects. Some inconsistencies were
minor, such as dates that did not match those in her declaration or in a police report she
submitted to Salvadoran authorities. Other discrepancies were more significant and
related to key facts. For example, although Petitioner wrote that Giovanni phoned her
repeatedly and that she discarded the chip in her phone as a result, she testified before the
IJ that Giovanni never phoned her and that she instead discarded the phone chip due to
the extortionate phone calls by the Maras. Additionally, in contrast to her written
testimony, Petitioner testified before the IJ that Giovanni never transported her to town.
The IJ repeatedly provided Petitioner opportunities to explain the discrepancies, noting
that “the controlling case law requires [him] to give [Petitioner] an opportunity to explain
2
A.R. 277.
3
these types of discrepancies.” 3 Petitioner, however, failed to provide any meaningful
explanation; in several instances, she merely stated she was confused or nervous and
failed to provide additional explanation.
Ultimately, the IJ determined that Petitioner was not a credible witness “due to the
numerous inconsistencies and omissions contained in her testimony and between her
testimony and the written record.” 4 According to the IJ, Petitioner “had no explanation
for why her testimony changed or why it differed from the written record in the first
place.” 5 In addition to the adverse credibility determination, the IJ found that Petitioner’s
case was not adequately corroborated. Specifically, although numerous letters and
affidavits were submitted in support of Petitioner, the letters were “vague,” they failed to
“discuss the specific details of [Petitioner’s] alleged problems in El Salvador,” and they
“lack[ed] any foundation.” 6 Accordingly, the IJ determined these letters had “basically no
probative value whatsoever.” 7 Moreover, the IJ highlighted that Petitioner’s sister, who
was “the one witness who might corroborate [Petitioner’s] story” (because she took
Petitioner in during the period of the alleged threats), 8 did not submit a letter. The IJ
considered this, too, in concluding that Petitioner’s claim was not adequately
corroborated.
3
A.R. 183.
4
A.R. 77.
5
A.R. 78.
6
A.R. 78.
7
A.R. 78.
8
A.R. 79.
4
The IJ further determined that “[e]ven if the Court believed [Petitioner’s]
testimony,” her proposed particular social group—“female targets of sexual assault who
have a family member in the United States and are perceived as having wealth”—was not
cognizable because it was not a “distinct social group,” and because it lacked
“particularity in that the group is shifting and amorphous.” 9 Lastly, the IJ determined that
the CAT claim was meritless because there was “no indication at all that a public official
or person acting in an official capacity has the specific intent for the respondent to be
tortured.” 10
Petitioner appealed to the BIA, which agreed with the IJ’s reasoning and upheld
the decision. Regarding the adverse credibility determination, the BIA noted the various
discrepancies in the record—including date discrepancies, conflicting testimony
regarding Giovanni, and conflicting testimony regarding the phone calls and the
discarding of the phone chip. Accordingly, the BIA upheld the credibility determination
because it was “based upon discrepancies present in the record.” 11 Moreover, the BIA
agreed with the IJ that the proposed particular social group was not cognizable because it
lacked “particularity and social distinction” and was “circularly defined.” 12 Lastly, the
BIA upheld the IJ’s determination regarding Petitioner’s CAT claim. Petitioner filed a
timely petition for review in this Court.
9
A.R. 79.
10
A.R. 80.
11
A.R. 3.
12
A.R. 4.
5
II.
The BIA had appellate jurisdiction over the IJ’s decision, and we have jurisdiction
to review the BIA’s final order. 13 “When the BIA issues its own opinion, we generally
review that decision as the final agency decision.” 14 “Here, however, the BIA’s opinion
‘invokes specific aspects of the IJ's analysis and fact-finding in support of [its]
conclusions,’ and so we are obliged to review both the decisions of the IJ and the BIA.” 15
“We exercise de novo review over constitutional claims or questions of law and the
application of law to facts.” 16 We review findings of fact, in comparison, under the
deferential “substantial evidence” standard, under which such findings are “conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” 17
III.
Petitioner argues that: (A) the BIA erred in upholding the IJ’s adverse credibility
determination; (B) the IJ violated her due process rights by failing to act as an
independent arbiter; and (C) the BIA erred in upholding the IJ’s rejection of her proposed
particular social group. We address these arguments in turn.
A.
13
8 C.F.R. § 1003.1(b)(3); 8 U.S.C. § 1252(a)(1).
14
Green v. Att’y Gen., 694 F.3d 503, 506 (3d Cir. 2012) (citing Sarango v. Att’y
Gen., 651 F.3d 380, 383 (3d Cir. 2011)).
15
Id. (alteration in original) (quoting Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.
2005)).
16
Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011) (quoting Yusupov v. Att’y
Gen., 518 F.3d 185, 197 (3d Cir. 2008)), as amended (Jan. 13, 2012).
17
Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
6
Petitioner first argues that the BIA erred in upholding the IJ’s adverse credibility
determination, suggesting that the determination was “not based on specific, cogent
reasons, but [was] instead based upon speculation and conjecture.” 18 “Adverse credibility
determinations are factual findings” that we review under the deferential substantial
evidence standard. 19 Because the adverse credibility determinations here were properly
“based on inconsistent statements, contradictory evidence, and inherently improbable
testimony,” 20 Petitioner’s argument fails.
If the minor date discrepancies were the only discrepancies at issue, the IJ’s
adverse credibility determination might have been in error. However, the IJ also relied on
the more significant discrepancies discussed above: whether Giovanni phoned Petitioner
repeatedly and she discarded the chip in her phone as a result, or whether Giovanni never
phoned her she and she instead discarded the phone chip due to extortionate phone calls
by the Maras—and whether Giovanni ever transported her into town to buy groceries.
Petitioner further argues that the adverse credibility determination was unfair
because, inter alia, she has little schooling and the “IJ engaged in leading and confusing
questioning.” 21 To the extent that the IJ engaged in limited leading questioning, the
record does not reflect that such questioning precipitated Petitioner’s contradictory
18
Pet’r Br. 10.
19
Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir. 2005)).
20
Ordonez–Tevalan v. Att’y Gen., 837 F.3d 331, 341 (3d Cir. 2016) (quoting
Toure v. Att’y Gen., 443 F.3d 310, 325 (3d Cir. 2006)).
21
Pet’r Br. 11.
7
testimony. Rather, the IJ’s questioning was in response to Petitioner’s contradictory
testimony and directed towards clarifying the record. Indeed, the IJ repeatedly afforded
Petitioner opportunities to explain the discrepancies, once even allowing her to restart a
line of testimony due to an apparent contradiction. Ultimately, this is not a case where an
“adverse credibility determination was . . . based . . . upon speculation and conjecture,” 22
but rather on substantial evidence in the record. Accordingly, Petitioner’s claim fails.
B.
Petitioner now argues that the IJ violated her due process rights “by abdicating his
duty to act as an independent arbiter by interjecting himself into the proceedings by
becoming an advocate against the Petitioner.” 23 “Aliens are ‘entitled to a full and fair
hearing of [their] claims and a reasonable opportunity to present evidence,’” 24 and we
exercise de novo review over such allegations. 25 To prevail on a due process claim like
the one Petitioner advances here, an alien must show “substantial prejudice.” 26
At the outset, we note that the record reflects scant evidence of prejudice, let alone
substantial prejudice. Even assuming that Petitioner’s argument had merit, however, such
a claim “remains subject to administrative exhaustion requirements [in 8 U.S.C. §
22Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006) (internal citation
omitted) (remanding for reconsideration of credibility determination when adverse
credibility determination was based on “speculation and conjecture”).
23
Pet’r Br. 17.
24
Singh, 432 F.3d at 541 (alteration in original) (quoting Chong, 264 F.3d at 386).
25
Abdulrahman v. Ashcroft, 330 F.3d 587, 595–96 (3d Cir. 2003).
26
Singh, 432 F.3d at 541 (citing Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d
Cir. 2005)).
8
1252(d)(1)] mandating that the issue be raised before the board.” 27 Here, Petitioner never
raised her due process claim before the BIA. Accordingly, her failure to exhaust this
claim before the agency “deprives us of jurisdiction to consider” it. 28
C.
Petitioner’s remaining argument is that the BIA erred in “upholding the IJ's
finding that . . . Petitioner’s proposed social group lacked particularity and social
distinction and that she failed to establish a nexus to said ground.” 29 As explained supra,
however, 8 U.S.C. § 1252(d)(1) requires administrative exhaustion. 30 A particular social
group definition, like any other argument, should first be raised before the BIA. On
appeal, however, Petitioner advances a new particular social group definition that she did
not raise before the agency; therefore, we lack jurisdiction to consider it. 31
Before the IJ, Petitioner alleged membership in a particular social group defined as
“someone who has been targeted for sexual assault who ha[s] close family members in
27
Abdulrahman, 330 F.3d at 595 n.5; see also Castro v. Att’y Gen., 671 F.3d 356,
365 (3d Cir. 2012) (“A petitioner’s failure to exhaust an issue by presenting it to the BIA
deprives us of jurisdiction to consider that issue.”); Bonhometre, 414 F.3d at 448(concluding that petitioner’s failure to argue his due process claim before the BIA was
“fatal to our jurisdiction over [his] petition”).
28
See Castro, 671 F.3d at 365.
29
Pet’r Br. 20.
30
See Castro, 671 F.3d at 365.
31
See Ramirez v. Att’y Gen., 603 F. App’x 108, 113 (3d Cir. 2015) (citing Lin v.
Att’y Gen., 543 F.3d 114, 120–21 (3d Cir. 2008)) (court lacked jurisdiction to consider
particular social group not presented “during the immigration proceedings or on appeal to
the BIA”); see also Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016)
(same); Kanagu v. Holder, 781 F.3d 912, 917 (8th Cir. 2015) (same).
9
the United States,” and is “perceived to have wealth.” 32 Before the BIA, she properly
raised the same particular social group: “female targets of sexual assault that have a
family member in the United States and are perceived as having wealth.” 33 Before this
Court, however, she advances a new theory: “that [she is] a family member to her
husband who resides in the United States.” 34 Petitioner seemingly argues that we should
overlook the exhaustion requirement here because “[f]ormations and enunciations of a
particular social group is at best an intellectual exercise and at worse an exercise in
futility.” 35 But Petitioner perhaps overlooks that we do not apply the exhaustion
requirement in “draconian fashion.” 36 Rather, we implement a “liberal exhaustion
policy,” 37 and “so long as an immigration petitioner makes some effort, however
insufficient, to place the Board on notice of a straightforward issue being raised on
appeal, a petitioner is deemed to have exhausted her administrative remedies.” 38 Here,
Petitioner has failed to make such any such effort. Accordingly, Petitioner’s failure to
present some version of this new theory before the agency “deprives us of jurisdiction to
consider” it. 39
32
A.R. 187.
33
A.R. 3.
34
Pet’r Br. 24.
35
Pet’r Br. 24.
36
Lin, 543 F.3d at 121.
37
Joseph v. Attorney Gen. of U.S., 465 F.3d 123, 126 (3d Cir. 2006), as amended
(Nov. 27, 2006).
38
Lin, 543 F.3d at 121 (quoting Joseph, 465 F.3d at 126).
39
Castro, 671 F.3d at 365.
10
IV.
For the reasons set forth above, we will deny the petition.
11