Ninonska Suate-Orellana v. William Barr, U. S. Att ( 2020 )

Case: 19-60729 Document: 00515625068 Page: 1 Date Filed: 11/03/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 3, 2020
No. 19-60729
Lyle W. Cayce
Clerk
Ninonska Suate-Orellana, also known as
Ninoska Suate-Orellana,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 965 308
Before Jones, Haynes, and Ho, Circuit Judges. 1
Edith H. Jones, Circuit Judge:
Petitioner Ninoska Suate-Orellana asks this court to reverse an
unfavorable decision from the Board of Immigration Appeals (the “Board”
or “BIA”). Specifically, she appeals the Board’s (1) adverse credibility
determination, (2) decision to deny withholding of removal relief, (3) denial
of her claim under the Convention Against Torture (“CAT”), and (4) denial
1
Judge Haynes concurs in the judgment only.
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of her motion to remand the case for consideration of new evidence. Upon
review of the record, we DENY Suate-Orellana’s petition for review.
I. BACKGROUND
Suate-Orellana is a Honduran woman. When she was approximately
eighteen years old, she was abused by a man named Walter Najera. In 2001,
she reported Najera’s involvement in the killing of a police officer. Although
Najera was subsequently imprisoned, Suate-Orellana fled to Mexico because
she was afraid “he would find out” that she had reported him and might
retaliate. In 2002, Suate-Orellana returned to Honduras and agreed to marry
Najera. Najera was released from prison in 2006 and traveled to the United
States where he remains. According to Suate-Orellana, she last spoke to him
in 2012 or 2013 when Najera told her that he wanted a divorce so that he
could marry his current partner. In 2009, Suate-Orellana began a
relationship with a drug dealer named Ramon Ramos. That same year, she
fled to Mexico after Ramos found an anonymous note threatening to kill
them. Ramos was killed in early 2010. Suate-Orellana believes a drug
trafficker named Luis Lopez was behind the murder.
In 2011, Suate-Orellana entered the United States but was denied
asylum and subsequently deported that same year. Initially, she did not go
back to her hometown because she was “afraid of Luis Lopez” and instead
lived “in several places” within Honduras. In 2012, Suate-Orellana learned
that Lopez had been killed by Rudy Chavez, who was the leader of a gang
called “La Rumba.” Chavez attempted to recruit Suate-Orellana and
threatened her when she refused to join the gang. Chavez was later killed in
2016.
In 2013, a purported hitman for La Rumba called “El Diablo”
approached Suate-Orellana at a bar. He told her that he had been hired to kill
her, but, after another individual intervened, he told her he would not kill her
2
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that night but would kill her if he saw her again. Suate-Orellana left Honduras
and, after spending some time in Mexico and “a very short time” hiding with
a friend in another city in Honduras, ultimately came to the United States.
In 2014, Suate-Orellana entered the United States, was detained, and
completed a reasonable fear interview (“2014 interview”). A merits hearing
was held in 2015 (“2015 hearing”) concerning her withholding of removal
and CAT claims. The immigration judge (“IJ”) made an adverse credibility
determination due to “numerous significant inconsistencies throughout the
testimony and previous statements of [Suate-Orellana]” based on “the
totality of the circumstances.” The IJ also denied Suate-Orellana’s claims
for relief. The Board affirmed the IJ’s adverse credibility determination and
denial of relief based on withholding of removal. But the Board remanded
the CAT claim for additional factual development, recognizing that the
Board “does not engage in factfinding in the course of deciding an appeal.”
The IJ engaged in the requisite factfinding and again denied the CAT claim.
This time the Board affirmed the IJ decision on appeal. The Board also
rejected Suate-Orellana’s motion to remand the record for consideration of
new evidence showing that one of her sons was murdered earlier in the year.
Suate-Orellana timely appealed.
II. DISCUSSION
We have jurisdiction to review a final order of removal where, as here,
“the alien has exhausted all administrative remedies available to the alien as
of right.” 8 U.S.C § 1252(d)(1). We review the Board’s decisions as well as
the IJ’s decisions to the extent they were relied upon or adopted by the Board.
See Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006).
A. Adverse Credibility Determination
The agency’s adverse credibility determination is reviewed under the
substantial evidence standard and is “conclusive unless any reasonable
3
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adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B); see Morales v. Sessions, 860 F.3d 812, 817 (5th Cir.
2017). We defer to the agency’s “credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Singh v. Sessions, 880 F.3d 220,
225 (5th Cir. 2018) (quotation marks omitted). We review legal conclusions
de novo. Iruegas-Valdez v. Yates, 846 F.3d 806, 810 (5th Cir. 2017).
Suate-Orellana contends that her adverse credibility determination
was based on several factual errors. Upon review of these purported errors,
however, we conclude the Board’s decision was based on substantial
evidence because the IJ identified numerous omissions and inconsistencies,
several of which Suate-Orellana does not dispute occurred. See Ghotra v.
Whitaker, 912 F.3d 284, 289 (5th Cir. 2019) (“[T]he BIA may consider
discrepancies . . . without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.” (quotation marks
omitted)). To give one notable example, the IJ decision emphasized that
Suate-Orellana claimed she feared Lopez in her 2014 interview even though
he had already been dead for two years. Suate-Orellana does not contest this
significant inconsistency and suggests memory fragmentation as a potential
explanation. The IJ was not required to accept her explanation given other
permissible views of the evidence. See Morales, 860 F.3d at 818.
Overall, Suate-Orellana’s arguments regarding the adverse credibility
determination amount to a disagreement with the agency’s conclusions, but
she does not demonstrate “that no reasonable fact-finder could make such an
adverse credibility ruling.” Singh, 880 F.3d at 225. Substantial evidence,
thus, supports the adverse credibility determination.
4
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B. Withholding of Removal
Having affirmed the adverse credibility determination, we reach the
merits of the withholding of removal and CAT claims only to the extent that
other evidence was presented to support those claims. Cf. Chun v. I.N.S.,
40 F.3d 76, 79 (5th Cir. 1994) (choosing not to reach the Board’s alternative
arguments because the case turned “purely on the IJ’s assessment of [the
petitioner’s] credibility”). We review factual determinations for substantial
evidence and legal determinations de novo. Ghotra, 912 F.3d at 287–88.
At bottom, we agree with the Board’s conclusion that Suate-
Orellana’s first proposed social group—Honduran women who have been
targeted for and resisted gang recruitment after the murder of a gang-
associated partner—is not cognizable. 2 We are not convinced that former
partners of gang members are sufficiently distinct from anyone that resists
gang recruitment. Thus, we agree it lacks particularity and social distinction.
See Orellana-Monson v. Holder, 685 F.3d 511, 522 (5th Cir. 2012) (concluding
a similar group—men who were recruited but refused to join Mara 18—
lacked particularity and social distinction).
We also agree with the Board that Suate-Orellana failed to show her
membership in her second proposed social group: Honduran women in
domestic relationships who are unable to leave or are viewed as property by
virtue of their position in a domestic relationship. 3 She has not heard from
Najera in many years, and he has requested a divorce so that he can marry his
2
A particular social group must: “(1) consist of persons who share a common
immutable characteristic; (2) be defined with particularity; and (3) be socially visible or
distinct within the society in question.” Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th Cir.
2019) (summarizing the Board’s precedential decisions).
3
As a result, we need not reach the issue of whether this is a cognizable social group
in this case.
5
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current girlfriend in Los Angeles. 4 These facts are dispositive, and the IJ
certainly did not have to discount them based on expert testimony concerning
the “effects and cyclical nature of abusive relationships.” The Board’s
decision to deny withholding of removal was supported by substantial
evidence. 5
C. Convention Against Torture
To establish her CAT claim, Suate-Orellana must show that she is
more likely than not to be tortured by or with the acquiescence of the
Honduran government if repatriated to Honduras. 8 C.F.R. §§ 1208.16(c),
1208.18; Tamara-Gomez v. Gonzales, 447 F.3d 343, 350–51 (5th Cir. 2006).
We review factual determinations for substantial evidence and legal
determinations de novo. Ghotra, 912 F.3d at 287–88.
Suate-Orellana contends the Board erred by “fail[ing] to meaningfully
consider all of the evidence submitted” that would show she is likely to be
tortured upon return to Honduras. We disagree. In fact, the Board
previously remanded the case to the IJ with explicit instructions to “consider
and make findings on the written evidence in the record, assess whether the
evidence corroborates her narrative, and enter a new decision concerning
protection under the CAT accordingly.” In a ten-page decision, the IJ did
exactly that.
We also find that the Board’s conclusion that Suate-Orellana did not
prove requisite state action is supported by substantial evidence. The
underlying IJ decision engaged in substantive analysis and cited meaningful
4
On the same basis we hold, in the alternative, that any presumption of future harm
has been rebutted.
5
We would reach this conclusion even if we had reversed the Board’s adverse
credibility determination.
6
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evidence to support its conclusion. For instance, the IJ observed:
(1) evidence police executed raids on La Rumba and captured suspected gang
members; (2) evidence Chavez was killed in 2016; and (3) the promulgation
of a presidential decree creating a commission to restructure the Honduran
National police. 6 The Board’s conclusion is supported by substantial
evidence.
D. Remand to Consider New Evidence
We review denial of a motion to remand “under a highly deferential
abuse-of-discretion standard.” Milat v. Holder, 755 F.3d 354, 365 (5th Cir.
2014) (citation omitted). Denial based on an error of law constitutes abuse
of discretion, and we review questions of law de novo. Larin-Ulloa v.
Gonzales, 462 F.3d 456, 461 (5th Cir. 2006).
“A motion to remand for new evidence shall not be granted unless it
appears to the Board that evidence sought to be offered is material and was
not available and could not have been discovered or presented at the former
hearing.” Milat, 755 F.3d at 365 (cleaned up). The Board’s decision will not
be disturbed unless it is “capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Id.; see Inestroza-
Antonelli v. Barr, 954 F.3d 813, 819 (5th Cir. 2020) (Jones, J., dissenting)
(“We do violence to the structure of immigration law when we incorrectly
permit cases to be reopened, particularly when the system is being
overrun.”). When determining materiality, the Board should consider
whether the new evidence would likely change the result in the case. See
6
Suate-Orellana argues that the IJ “failed to give proper weight” to other evidence.
This amounts to a disagreement with how the IJ weighed competing evidence and does not
constitute reviewable error.
7
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Qorane v. Barr, 919 F.3d 904, 912 (5th Cir. 2019) (concluding that materiality
on a motion to reopen “means the evidence must be likely to change the
result of the alien’s underlying claim for relief”); 7 see, e.g., In the Matter of
Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992).
Suate-Orellana claims the Board made an error of law by creating an
extra-statutory evidentiary requirement of an eyewitness account to her
son’s murder. The Board made no such across-the-board requirement, so
Suate-Orellana’s attempt to characterize this as an error of law fails. Rather,
the Board did not think the new evidence was connected to La Rumba’s
purported interest in Suate-Orellana.
Suate-Orellana also argues that the Board made an error of law by
engaging in impermissible factfinding. We disagree. The Board may evaluate
new evidence on a motion for remand to assess whether or not that evidence
meets the stringent requirements for remand. 8 Engaging in this exercise does
not constitute an error of law; in fact, some courts have faulted the Board for
not analyzing evidence in such motions in sufficient detail. See, e.g., Marqus
v. Barr, 968 F.3d 583, 593 (6th Cir. 2020) (criticizing the Board for denying
a motion to remand “with little more than a bald statement” and no “real
analysis” of why the evidence was immaterial).
We also conclude that the Board did not abuse its discretion in not
remanding the case for consideration of new evidence. The new evidence
was similar to evidence already considered and rejected by the IJ, and it
suffered from the same shortcoming by not showing any connection to Suate-
7
We generally review motions to remand under the same standard as motions to
reopen. See Ramchandani v. Gonzales, 434 F.3d 337, 340 n.6 (5th Cir. 2005).
8
The cases cited by Suate-Orellana are in the context of the Board engaging in
factfinding when evaluating an IJ decision on appeal, not assessing the materiality of new
evidence on remand.
8
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Orellana herself. 9 Thus, the Board reasonably concluded that the new
evidence was “indicative of the danger the community faces from gang
violence” but did not meaningfully impact the CAT analysis for Suate-
Orellana. See Milat, 755 F.3d 354, 365 (5th Cir. 2014) (considering it relevant
that new evidence was similar to evidence already considered). The Board
did not abuse its discretion in reaching this conclusion.
Suate-Orellana contends that Zhao v. Gonzales should determine the
outcome on whether to remand. 404 F.3d at 304–05. 10 We find Zhao
distinguishable. In that case, the government acted in a “disingenuous”
manner by simultaneously arguing that the new evidence presented was
“redundant” when compared to previously considered evidence and then
faulting the prior evidence for not containing information that was only
contained in the new evidence. Id. at 305. There was no such disingenuous
conduct here. In this case, the Board simply recognized that the new
evidence was like previous evidence submitted that was insufficiently
connected to threats against Suate-Orellana herself as distinguished from
generalized gang violence in the area.
III. CONCLUSION
Based on the foregoing we DENY the petition for review.
9
The IJ found previous evidence wanting either because (1) threats from members
of La Rumba to Suate-Orellana were made by now deceased individuals a significant
amount of time ago, or (2) the evidence was not sufficiently connected to Suate-Orellana.
For example, the IJ considered evidence “that gang members may have fired shots in the
direction of [Suate-Orellana’s] son in 2013 and parked a vehicle near Respondent’s sister’s
home in 2016” but nevertheless concluded that such evidence was not enough to show La
Rumba would torture Suate-Orellana if she returned to Honduras.
10
To the extent Suate-Orellana relies on Inestroza-Antonelli v. Barr, that case is also
factually distinct. There the changed conditions involved alleged dismantled institutional
protections following a military coup. 954 F.3d at 814.
9