Juarez-Lopez, Sonia v. Gonzales, Alberto R. , 235 F. App'x 361 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 18, 2007
Decided April 23, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 06-3143
SONIA MARIBEL JUAREZ-LOPEZ, Petition for Review of an Order of the
et al., Board of Immigration Appeals
Petitioners,
Nos. A70-060-766
v. A78-366-452
A78-366-301
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Sonia Maribel Juarez-Lopez1, a citizen of Guatemala, petitions for review of
an order of the Board of Immigration Appeals denying her application for asylum.
Following a removal hearing, an Immigration Judge denied her application for
1
The petitioner’s name is apparently Sonia Lopez-Juarez, but the name
Juarez-Lopez is used by the parties here and throughout the record. According to
the petitioner, the people helping her fill out her asylum application reversed her
mother’s and father’s names. To avoid confusion, we have adopted the parties’
convention and used “Juarez-Lopez” throughout our discussion.
No. 06-3143 Page 2
asylum on the ground that she was not a credible witness and also denied her the
other immigration relief she sought. The BIA summarily affirmed. Juarez-Lopez
now petitions for review of her asylum claim only. Because the IJ’s adverse
credibility finding is not supported by substantial evidence, and since we cannot
decide in the first instance whether Juarez-Lopez would be entitled to asylum if
found to be credible, we grant her petition and remand the matter back to the BIA.
Juarez-Lopez and her sons, Sergio Lopez and Rigoberto Lopez, arrived in the
United States from Guatemala in February 1990. At the time, the boys were 7 and
2 years old, respectively. In November 1990 Juarez-Lopez completed an application
for asylum; that document provides few details about her background or the nature
of her claim, save her statement that she fears for her life. In early 1991 she was
interviewed by an asylum officer, but the administrative record contains no
transcript or other description of the discussion during the interview. The record is
also silent about who, if anyone, helped Juarez-Lopez prepare her application.
Juarez-Lopez had another son in 1992 and a daughter in 1994; both were born in
the United States. As far as the administrative record shows, Juarez-Lopez heard
nothing regarding her asylum claim until 2002 when the Department of Homeland
Security granted her another asylum interview—the details of which are also
absent from the administrative record—then initiated removal proceedings against
her and her two non-citizen sons. The three conceded removability but continued to
press for asylum. In July 2004 Juarez-Lopez and Sergio testified at a hearing
before an IJ.
Juarez-Lopez testified that she was born in 1966 in Guatemala. When she
was about 12 or 13, she was allegedly raped by a man 15 to 17 years her senior,
Rigoberto de la Pena, who lived nearby. Juarez-Lopez testified that she did not
report the rape to the police or to her parents because de la Pena threatened to kill
her parents if she did. Over the next three years, de la Pena raped Juarez-Lopez at
least seven more times. Because of this contact, Juarez-Lopez became pregnant
with her oldest son, Sergio, when she was 16. Her parents did not want her to
report the rape to the police because de la Pena was wealthy and they were afraid of
him. Juarez-Lopez left the town and lived with her sister and then with her
mother’s cousin. When Sergio was about five, Juarez-Lopez went back to visit her
parents, and de la Pena raped her again. She testified that she became pregnant a
second time, and that de la Pena took her to live with him. At de la Pena’s
insistence, she named her second son Rigoberto, after him, even though de la Pena
would not acknowledge the boy as his own by giving him his last name. Juarez-
Lopez testified that de la Pena was physically violent and threatened to harm her
parents if she told anyone about the abuse. De la Pena was involved with another
woman at this time, Rebeca Ramos, who was also abusive and violent toward
Juarez-Lopez. Juarez-Lopez worked for Ramos cleaning her house. After about six
months, Juarez-Lopez moved out of de la Pena’s house and returned to her parents’
No. 06-3143 Page 3
home. Juarez-Lopez was still afraid of de la Pena, who beat her before she left and
threatened to kill her if she was ever with another man. She went to live with her
sister in another town, but she explained that she became frightened when guerillas
stopped the bus she was traveling on during a return visit to her parents. Juarez-
Lopez testified that she finally decided to leave Guatemala in 1990 because she was
afraid of continuing violence by de la Pena and Ramos and of guerilla attacks, and
she wanted to protect her children.
Throughout Juarez-Lopez’s testimony, the IJ’s reluctance to believe that she
was raped was apparent. After Juarez-Lopez had given her account of being raped
for the first time at age 12 or 13, the IJ asked, “Now, how do I know this was not a
consensual arrangement?” Juarez-Lopez answered that she was telling the truth
and would not lie in front of her children. The IJ responded:
But, nevertheless, unfortunately on occasion people lie. And even in
this country young ladies who had arrangements with other
boyfriends later charged them with rape. And in some cases innocent
boys are sent to jail because the lady changed her mind. How do I
know that this is not the incident in your case?
Later the IJ asked:
How do I know that you’re not making up this story? That you’re
coming here as an economic refugee and you have no legal right to be
here and you’re making up a story so you can claim asylum? And
there’s reasons [sic] for you to misstate the facts, because you want to
stay here and there’s no other way that you can stay here unless you
make up a story. Now, how do I know, do I have anything other than
your statement that you claim that you were raped by this young man
in Guatemala?
In denying the family’s applications for asylum, the IJ did not analyze
whether the events Juarez-Lopez described could constitute past persecution or give
rise to an objectively reasonable fear of future persecution. Instead, the IJ based
his decision entirely on his finding that Juarez-Lopez was not credible.
The IJ characterized her testimony as “vague, meager, and inconsistent.” He
observed that Juarez-Lopez did not mention her two oldest sons in her asylum
application in 1990 but instead had stated “none” in response to questions about
children. The IJ further explained that Juarez-Lopez said nothing in the
application about having been raped.
No. 06-3143 Page 4
The IJ next said that he doubted Juarez-Lopez’s credibility because of her
prolonged interactions with de la Pena. The IJ was skeptical that she would move
in with him and name her second son after him if, in fact, he repeatedly raped her.
The IJ also characterized as “unbelievable” Juarez-Lopez’s testimony that
de la Pena would not acknowledge her children as his own but still compelled her to
name her second son after him.
The IJ acknowledged that Juarez-Lopez did disclose the alleged rapes, her
children, and an assault by Ramos in the declaration she attached to her
application for cancellation of removal in 2004, but he labeled that declaration as
“inconsistent with her testimony” because in the declaration she does not mention
living with de la Pena for six months or that Ramos and de la Pena were lovers.
The IJ also thought it “confusing” that Juarez-Lopez testified at her hearing that
she lived with a sister during and after her first pregnancy but states in her
declaration that she returned to her parents’ house to have the baby.
In addition, the IJ questioned Juarez-Lopez’s “honesty” concerning her
explanation for why the father of her son born in the United States is listed
incorrectly on the child’s birth certificate. Juarez-Lopez testified that the father is
her current partner, Luis Eduardo Rodas, but that the woman who completed the
birth certificate wrote “Jorge Rivera” by mistake. The IJ was doubtful that this
woman “would not just leave the father’s name blank, instead of fabricating a
name.”
Because of these perceived inconsistencies, the IJ decided that corroboration
was “essential” to Juarez-Lopez’s case. The IJ then observed that there existed in
the record “absolutely no corroborating evidence” to establish that Juarez-Lopez’s
relationship with de la Pena was not consensual. The IJ noted that she had not
submitted affidavits from her mother or other family members and that this
“seriously undermines [her] claim.” The IJ also faulted Juarez-Lopez for not
submitting documentation of any of the injuries she suffered at the hands of
de la Pena and Ramos.
In her petition for review, Juarez-Lopez argues that she suffered persecution
on account of her membership in a particular social group, young poor women in
Guatemala. She asserts that members of this group are particularly vulnerable to
rape and other forms of sex-based discrimination, and that governmental
authorities are unwilling and unable to protect young women. Juarez-Lopez
acknowledges that immigration statutes and regulations do not currently include
gender as a possible basis for asylum relief but requests that we remand her case
with instructions to adjudicate her claim under the final regulations regarding
gender-based persecution, when they are published.
No. 06-3143 Page 5
The agency did not reach the question of whether Juarez-Lopez has a valid
claim for asylum based on current law, and we cannot make the “basic asylum
eligibility decision” in the first instance. INS v. Ventura, 537 U.S. 12, 16-17 (2002);
see also Gonzales v. Thomas, 126 S. Ct. 1613, 1615 (2006); Kay v. Ashcroft, 387 F.3d
664, 677 (7th Cir. 2004). Our role is limited to reviewing the adverse credibility
finding, which is the sole basis given by the agency for denying Juarez-Lopez’s
claim. If that finding is not supported by substantial evidence, then we must
remand to the agency. See Mensah Koffi Adekpe v. Gonzales, No. 05-3951, 2007
U.S. App. LEXIS 5840, at *19 (7th Mar. 14 Cir. 2007). As for whether the agency
should hold this case if a remand is ordered, see In re R- A-, 22 I. & N. Dec. 906(1999), vacated by Op. Att’y Gen. (2001), that is a matter for the BIA to decide.
With respect to the adverse credibility finding, Juarez-Lopez argues that it is
not supported by substantial evidence because the IJ’s reasoning is speculative,
illogical, or otherwise not cogent. Juarez-Lopez takes issue with the suggestions
made by the IJ, both in his written decision and during his questioning, that her
relationship with de la Pena was consensual. She further asserts that the perceived
“inconsistencies” between her asylum application and her declaration concern
issues that are not inconsistent at all or, at most, are peripheral to her asylum
claim.
Because the BIA summarily affirmed, we review the decision of the IJ.
Diallo v. Gonzales, 439 F.3d 764, 765 (7th Cir. 2006). An IJ’s adverse credibility
finding must be supported by substantial evidence.2 See Shtaro v. Gonzales, 435
F.3d 711, 715 (7th Cir. 2006); Chen v. Gonzales, 420 F.3d 707, 709 (7th Cir. 2005).
We will uphold the IJ’s decision unless the evidence compels a contrary conclusion.
8 U.S.C. § 1252(b)(4)(B); Shtaro, 435 F.3d at 715. Although an IJ’s finding
regarding credibility is entitled to highly deferential review, we look for specific,
cogent reasons that bear a legitimate nexus to the IJ’s finding. Shtaro, 435 F.3d at
715; Giday v. Gonzales, 434 F.3d 543, 550 (7th Cir. 2006); Dong v. Gonzales, 421
F.3d 573, 577 (7th Cir. 2005).
First, the IJ based his credibility finding on information that he expected to
be in Juarez-Lopez’s asylum application but is not, i.e., mention of her children and
the alleged rapes. But what is most remarkable about the application is that it
discloses virtually no meaningful information beyond Juarez-Lopez’s name and
2
Because Juarez-Lopez petitioned for asylum in 1990, her case is not
affected by the revised credibility standards of the REAL ID Act of 2005, see Pub. L.
No. 109-13, 119 Stat. 231. The new standards apply only to petitions for asylum
made on or after May 11, 2005. Id. at § 101(h)(2). See also Diallo, 439 F.3d at 766
n.l; Dawoud v. Gonzales, 424 F.3d 608, 613 (7th Cir. 2005).
No. 06-3143 Page 6
address. For example, in response to the question about why she continued
traveling to the United States, Juarez-Lopez answered only “no.” Because of the
paucity of information in her application relative to her hearing testimony, the
differences seized upon by the IJ hardly amount to inconsistencies. An asylum
application need not be complete and may be supplemented with testimony.
Kllokoqi v. Gonzales, 439 F.3d 336, 342 (7th Cir. 2005); see also Chen, 420 F.3d at
710.
The IJ also failed to consider the possibility that Juarez-Lopez gave a fuller
account in her interview with the asylum officer just two months after completing
her application. A summary of this interview and the asylum officer’s interview
notes should have been made part of the administrative record but were not. See 8
U.S.C. § 1225(b)(1)(B); 8 C.F.R. § 208.9(f); see also Terezov v. Gonzales, No. 06-2101,
2007 U.S. App. LEXIS 5940, at *19 (7th Cir. Mar. 15, 2007) (vacating where
incomplete administrative record undermined agency’s adverse determination).
The IJ, though, appears not to have addressed the omission even after Juarez-Lopez
alluded to the interview during cross-examination. Government counsel asked
Juarez-Lopez why she omitted information about the alleged rapes from her asylum
application, and she responded that “they did not ask me on detail, they just asked
me the quick questions.” This answer seems to refer to the asylum interview, not
the asylum application. Similarly, when asked why the application does not include
any mention of her children, Juarez-Lopez answered: “They only asked me if I had
children, I said yes and I have two. They did not ask me what did they want me to
do with the children or what do I have to do for them.” Rather than fault Juarez-
Lopez for omissions in her asylum application, the IJ should have investigated
whether the missing summary of the asylum interview would have allayed his
apparent concern about recent fabrication.
Moreover, the IJ should not have based an adverse credibility finding on
Juarez-Lopez’s understandable reluctance to divulge information about her rapes.
See Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir. 2004) (A “victim of sexual assault
does not irredeemably compromise his or her credibility by failing to report the
assault at the first opportunity.”); Paramasamy v. Ashcroft, 295 F.3d 1047, 1053
(9th Cir. 2002) (holding that failure to report sexual assault in asylum interview did
not support adverse credibility finding).
Second, the IJ doubted Juarez-Lopez’s credibility because of her account of
her relationship with de la Pena. The IJ thought it inconsistent that she would
move in with and name her son after the man who repeatedly raped her. The IJ
also disbelieved that de la Pena would refuse to acknowledge Juarez-Lopez’s first
two sons as his own but nonetheless compel her to name the second son after him.
The IJ used these facts to support his speculation that Juarez-Lopez’s relationship
with de la Pena may have been consensual. But we will not defer to findings based
No. 06-3143 Page 7
on personal speculation or conjecture rather than record evidence. Shtaro, 435 F.3d
at 715; Giday, 434 F.3d at 550; Dong, 421 F.3d at 577-78; Tabaku v. Gonzales, 403
F.3d 417, 421 (7th Cir. 2005); Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir.
2004). Juarez-Lopez provided compelling explanations for the purported
inconsistencies. She testified that de la Pena took her “by force” and told her that if
she “wouldn’t stay with him in the house the only people that were going to suffer
the consequences were my old people, in other words, my parents.” Juarez-Lopez’s
willingness to live with de la Pena in order to prevent violence to her parents is
consistent with her testimony that she was in an abusive relationship. Juarez-
Lopez testified that de la Pena forced her to name her second son after him, and she
added that he “did not want to recognize them” and “did not want to give his last
name” (emphasis added). There is no inconsistency when an individual
acknowledges parenthood and simultaneously disclaims responsibility for his child’s
rearing. See Shtaro, 435 F.3d at 715 (reversing adverse credibility determination
where IJ pointed to no evidence to support his assumptions about the motivations of
petitioner’s persecutors); Huang v. Gonzales, 403 F.3d 945, 949-50 (7th Cir. 2005)
(explaining that IJ cannot rest adverse credibility finding on personal beliefs or on
“some perceived common knowledge”); Lopez-Umanzor v. Gonzales, 405 F.3d 1049,
1050 (9th Cir. 2005) (granting petition for review where adverse credibility
determination was based on IJ’s “stereotypical assumptions about domestic
violence,” including his disbelief that an abused woman would return to her
abuser).
Third, the IJ pointed to purported or perceived inconsistencies between the
declaration attached to Juarez-Lopez’s application for cancellation of removal and
her hearing testimony. In the declaration she does not mention living with
de la Pena for six months or that Ramos and de la Pena were lovers, though she
does recount abuse by Ramos that was consistent with her testimony in court.
However, the omission of these minor details can hardly be deemed an
inconsistency, especially given that the declaration fills only four pages (the
transcript of Juarez-Lopez’s testimony at the hearing extends for 57 pages) and is
focused on the events most critical to her claim. Adverse credibility determinations
should not be based upon easily explained discrepancies or perceived discrepancies.
Korniejew, 371 F.3d at 386-87 (noting with disfavor “the increasing reliance by the
BIA and IJs upon perceived inconsistencies in testimony and lack of corroboration
as the basis for adverse credibility determinations”). The IJ also characterized as
“confusing” that Juarez-Lopez testified that she lived with her sister during and
after her first pregnancy but in her declaration states that she went back to her
parents’ house to have the baby. Juarez-Lopez’s testimony on this point is not
meaningfully different. She testified in court:
At that time that I knew that I was four months and I went to live
again with my sister and I, I was through my whole pregnancy then I
No. 06-3143 Page 8
was with my sister. Then I decide to come back and see my parents,
and then my parents, they kicked me out of the house. So then I have
to go when I was ready to go and give birth, I went to live with a friend
whose name was Consuelo.
She gives a similar account in her declaration:
I was still afraid that [de la Pena] would send someone to kill me, so I
went to live with my sister in El Peten for the duration of my
pregnancy. When I was about to have my son, I went back to live with
my parents so they could help me take care of him.
Finally, the IJ questioned Juarez-Lopez’s “honesty” about the name of her
third son’s father, as given on his birth certificate. Adverse credibility
determinations should not be based on matters that do not go to the heart of the
asylum claim. Kllokoqi, 439 F.3d at 342. In this case, the father named on her
son’s birth certificate is of absolutely no relevance to her claim for asylum. Because
the discrepancy is completely peripheral, it should not have been a basis for the IJ’s
adverse credibility finding.
Juarez-Lopez next argues that the IJ’s demand for corroboration, in the form
of medical reports, police records, or family member affidavits, was unreasonable.
Review of this issue is limited by § 101(e) of the REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231 (amending 8 U.S.C. § 1252(b)(4)), which provides that “no
court shall reverse a determination made by a trier of fact with respect to the
availability of corroborating evidence . . . unless the court finds . . . that a
reasonable trier of fact is compelled to conclude that such corroborating evidence is
unavailable”). This provision applies in Juarez-Lopez’s case. See id. § 101(h);
Orejuela v. Gonzales, 423 F.3d 666, 671 (7th Cir. 2005); Hor v. Gonzales, 421 F.3d
497, 501-02 (7th Cir. 2005).
An applicant seeking asylum bears the burden of establishing that he is a
refugee, but an applicant’s credible testimony can sustain this burden of proof
without corroboration, 8 U.S.C. § 1158(b)(1)(B). On the other hand, an IJ may find
an applicant’s testimony not credible if she “fails to present certain foundational
evidence.” Balogun v. Ashcroft, 374 F.3d 492, 502 (7th Cir. 2004); see also Zaidi v.
Ashcroft, 377 F.3d 678, 682 (7th Cir. 2004) (“[W]hen the IJ does not believe the
applicant or does not know what to believe, the applicant’s failure to corroborate his
testimony can be fatal.”). But if an IJ believes the applicant’s testimony,
corroboration “is not required.” Zheng v. Gonzales, 409 F.3d 804, 810 (7th Cir.
2005) (emphasis in original); see also Dong v. Gonzales, 421 F.3d 573, 579 (7th Cir.
2005); Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir. 2003). To ensure that IJs
have the freedom to require supporting evidence, yet do not inappropriately demand
No. 06-3143 Page 9
it, we require that, before denying a claim for lack of corroboration, an IJ must: (1)
make an explicit credibility finding, (2) explain why it is reasonable to have
expected additional corroboration, and (3) explain why the petitioner’s reason for
not producing that corroboration is inadequate. Ikama-Obambi v. Gonzales, 470
F.3d 720, 725 (7th Cir. 2006); Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir.
2004).
The IJ erred by demanding corroboration before making an explicit
credibility finding. The IJ plainly got the rule backwards when he asked Juarez-
Lopez whether she was aware that her story “had to be corroborated by document”
before she testified. “As they say in the theater,” the IJ explained, it was “show
time,” and Juarez-Lopez had “nothing to show the court.” The IJ failed at the first
step by expecting Juarez-Lopez to supply corroborating documents before he heard
a word of testimony.
In addition, Juarez-Lopez adequately explained the absence of corroborating
documents. She did not have police or hospital reports documenting abuse by
de la Pena because she never reported his attacks. She testified that she sought
medical treatment and filed a police report only once, and that was when she
required stitches after Ramos beat her. Juarez-Lopez explained that the events in
question happened at least 14 years prior to the hearing, that she didn’t know if the
records still existed, and that she had not been able to bring many papers with her
when she came to the United States. She said she is not in communication with
any of her six siblings, and that they are “not a united family.” Juarez-Lopez
conceded that she does keep in touch with her mother and had spoken to her just
two months before the hearing. But she explained that her parents are elderly (at
the time of the hearing, her mother was 98 and her father 94) and do not hear well.
Moreover, we have maintained that corroboration is not required of otherwise
credible applicants for asylum who filed their applications before the REAL ID Act
took effect (like Juarez-Lopez). See, e.g., Diallo, 439 F.3d at 766; Dawoud, 424 F.3d
at 612; Kllokoqi, 439 F.3d at 344 (reversing adverse credibility finding and holding
that corroborating evidence should not have been required); see also Pavlova v. INS,
441 F.3d 82, 91 (2d Cir. 2006) (explaining that “lack of corroborating evidence alone
is not sufficient to support an adverse credibility determination”). Because the IJ’s
other bases for finding Juarez-Lopez not credible were unsound, her claim should
not be denied on the basis of lack of corroborating evidence.
We grant the petition for review, vacate the order of removal, and remand.