Alicia Coronado-Barrera v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-3446
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ALICIA GUILLERMINA CORONADO-BARRERA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review from an Order of the
Board of Immigration Appeals
(Board No. A200-239-874)
Immigration Judge: Ramin Rastegar
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 12, 2019
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Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges.
(Filed: October 15, 2019)
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OPINION*
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.
Petitioner Alicia Guillermina Coronado-Barrera seeks review of a final order
issued by the Board of Immigration Appeals (“BIA”). The BIA affirmed the Immigration
Judge’s (“IJ”) denial of Petitioner’s application for asylum, withholding of removal, and
relief pursuant to the Convention Against Torture (“CAT”). The IJ found that Petitioner
did not meet her burden to establish eligibility for asylum, withholding of removal, or
CAT relief. We will deny the petition for review.
I.
Petitioner is a native and citizen of Guatemala. On August 1, 2011, she entered
the United States with her brother. The Department of Homeland Security issued
Petitioner a Notice to Appear (“NTA”) three days later. Petitioner admitted to the factual
allegations in the NTA and conceded removability at a March 30, 2012 Master Calendar
Hearing. That same day, she applied for asylum, withholding of removal, and CAT
relief.
Petitioner appeared at the Newark Immigration Court on May 11, 2017 for an
Individual Merits Hearing. She testified that she was fearful of returning to Guatemala
due to harm her family allegedly suffered at the hands of members of the Castaneda
family. On March 13, 2007, Castaneda family members allegedly murdered Petitioner’s
father. Petitioner’s brother was shot at in March or May 2011 by an unknown person.
Between 2012 and 2016, Petitioner’s uncle and two cousins were murdered by
unidentified individuals. One of Petitioner’s classmates—who was also a neighbor of the
Castaneda family—asked Petitioner where she lives and told her of rumors that the
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“Castaneda family wants to get even with her because they suspect that she was involved
in the death of their family members.” A.R. 19.
Towards the end of the Individual Merits Hearing, the IJ asked Petitioner why she
did not secure corroboration from her brother, mother, aunts, cousin, or any other
immediate family members. She acknowledged not obtaining statements or affidavits
from these family members and provided no indication on whether she could obtain the
requested corroboration. The IJ closed the hearing by indicating that “[t]here will be no
more hearings” and he would “issue a written decision within 60 to 90 days” after
“further review[ing] [Petitioner’s] testimony and the documents in the record.” A.R. 217.
In a written decision dated October 16, 2017, the IJ found that Petitioner was
credible but did not provide sufficient corroboration of her claim. Petitioner’s reasons for
failing to provide letters or affidavits from family members were determined to be
inadequate. Petitioner filed a Notice of Appeal to the BIA on November 16, 2017. The
BIA affirmed the IJ’s corroboration finding in an October 5, 2018 opinion and added that
Petitioner “has not contested [the IJ’s corroboration] finding on appeal.” A.R. 3.
Petitioner filed this petition for review on November 2, 2018.
II.
The BIA had appellate jurisdiction to review the IJ’s decision, and we have
jurisdiction over the BIA’s final order. 8 U.S.C. § 1252(a)(1); 8 C.F.R. § 1003.1(b). We
typically only review the BIA’s final order. See Abdulai v. Ashcroft, 239 F.3d 542, 548–
49 (3d Cir. 2001). However, “when the BIA both adopts the findings of the IJ and
discusses some of the bases for the IJ’s decision, we have authority to review the
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decisions of the IJ and the BIA.” He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.
2004). Here, we review both the BIA and IJ’s decisions because the BIA affirmed the IJ
and discussed the IJ’s findings.
We review questions of law de novo and findings of fact for substantial evidence.
Quao Lin Dong v. Att’y Gen., 638 F.3d 223, 227–28 (3d Cir. 2011). We adopted a three-
part inquiry to determine whether corroboration is required: (1) identify facts for which it
is reasonable to expect corroboration; (2) review whether the applicant provided
necessary corroboration; and (3) determine whether the applicant adequately explained
any absent corroboration. Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006). To
reverse a corroboration finding, we must determine that “a reasonable trier of fact is
compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. §
1252(b)(4).
III.1
We first address whether Petitioner waived challenging the corroboration finding.
We review the BIA’s final order only if Petitioner “has exhausted all administrative
1
Petitioner challenges the IJ’s denial of her application for asylum, withholding
of removal, and CAT relief. We are not persuaded by her arguments. Petitioner waived
her CAT and withholding claims by not raising them in her Notice of Appeal to the BIA.
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.”).
Moreover, Petitioner testified that members of the Castaneda family have not
threatened her, she is unaware of whether they threatened her family, and she does not
know if anyone from the Castaneda family has ever harmed her family. As such, we are
unconvinced that the record compels a finding contrary to that reached by the BIA as to
asylum. Gao v. Ashcroft, 299 F.2d 266, 272 (3d Cir. 2002) (“Whether an asylum
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remedies available” to her. 8 U.S.C. § 1252(d)(1). Petitioner is “not required to
unambiguously raise the IJ’s failure to follow the three steps of the [corroboration]
inquiry.” Luziga v. Att’y Gen., — F.3d —, 2019 WL 4197543, at *8 (3d Cir. Sept. 5,
2019) (characterizing this as a liberal approach to exhaustion). All that is needed is for
Petitioner to put the BIA on notice of the issue being raised. Id.Petitioner raised the IJ’s corroboration finding in her Notice of Appeal to the BIA.
She argued that the IJ “misapplied the corroboration requirements of the REAL ID Act
by finding her credible yet discounting her explanations for missing affidavits from
family members.” A.R. 10. While Petitioner did not separately brief the IJ’s
corroboration finding, raising an issue in a Notice of Appeal without a supporting brief is
sufficient as long as the claim is not overly complex. Yan Lan Wu v. Ashcroft, 393 F.3d
418, 422 (3d Cir. 2005). Thus, we have jurisdiction to consider Petitioner’s claims as to
corroboration.
Petitioner next argues that the IJ did not provide advance notice of required
corroboration to sustain her burden of proof. Relying on Matter of L-A-C-, 26 I. & N.
Dec. 516 (BIA 2015), the IJ determined that “IJs are not required to give . . . advance
notice of specific corroborating evidence necessary.” A.R. 23. That is contrary to the
law of this Circuit. Saravia, 905 F.3d at 733–34 (characterizing the IJ’s reliance on
Matter of L-A-C- as “[c]ontrary to our established precedent” requiring advance notice);
Sandie v. Att’y Gen., 562 F.3d 246, 253 (3d Cir. 2009); Chukwu v. Att’y Gen., 484 F.3d
applicant has demonstrated past persecution or a well-founded fear of future persecution
is a factual determination reviewed under the substantial evidence standard.”).
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185, 192 (3d Cir. 2007). There is no indication in the record that the IJ raised the
corroboration needed prior to the May 11, 2017 Individual Merits Hearing or offered
Petitioner the opportunity to submit the corroboration prior to the October 16, 2017
decision, and that is troubling.
However, our analysis does not end there. The IJ asked Petitioner why she did not
provide corroboration from immediate family members.2 In her responses to the IJ’s
examination, Petitioner provided no indication as to whether she could corroborate her
claims. She even testified that her attorney advised her to “try and get documents that are
reasonably available . . . to corroborate” her testimony. A.R. 208. Thus, we are
unconvinced that Petitioner’s testimony compels a “reasonable trier of fact . . . to
conclude that [required] corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4)
(setting forth the standard to “reverse a determination . . . with respect to the availability
of corroborating evidence”).
IV.
For the foregoing reasons, we will deny Petitioner’s petition for review.
2
For example, the IJ asked Petitioner “why haven’t you asked your mother, or
aunt, or uncles to send you letters?” A.R. 208.
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