Francisco Flores Barrera v. Merrick Garland ( 2022 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                       AUG 15 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    FRANCISCO FLORES BARRERA, AKA                   No.    15-72997
    Roxana Espinoza Pena, AKA Jessica Flores,
    AKA Mariana Andrea Flores, AKA Javier           Agency No. A200-964-012
    Torres Valdez,
    Petitioner,                     MEMORANDUM*
    v.
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted April 14, 2022**
    Pasadena, California
    Before: PAEZ, SMITH,*** and BADE, Circuit Judges.
    Dissent by Judge PAEZ.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable D. Brooks Smith, United States Circuit Judge for the
    U.S. Court of Appeals for the Third Circuit, sitting by designation.
    Francisco Flores Barrera (aka Mariana Andrea Flores1), a native of Mexico,
    petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her
    appeal of an immigration judge’s (“IJ”) denial of her applications for asylum,
    withholding of removal, and protection under the Convention Against Torture
    (“CAT”). We have jurisdiction under 
    8 U.S.C. § 1252
    . We review factual
    findings, including adverse credibility determinations, for substantial evidence, and
    legal questions de novo. Guerra v. Barr, 
    974 F.3d 909
    , 911 (9th Cir. 2020). We
    deny the petition.
    1.     Considering the “totality of the circumstances[ ] and all relevant factors,”
    Alam v. Garland, 
    11 F.4th 1133
    , 1137 (9th Cir. 2021) (en banc) (alteration in
    original), we conclude that substantial evidence supports the agency’s adverse
    credibility determination. The IJ and BIA found significant discrepancies between
    statements that Flores made in her border and credible fear interviews and
    statements that she made in her second asylum application and hearing testimony
    about the basis of her claims.2 Thus, the agency concluded that Flores was not
    1
    After removal proceedings commenced, Flores, a transgender woman,
    officially changed her name to Mariana Andrea Flores.
    2
    Flores filed an earlier asylum application, which was denied, and she did
    not appeal and was deported. In the instant petition, she challenges the IJ’s
    determination that she was precluded from filing a second asylum application and
    argues that she established changed country conditions. The BIA assumed Flores
    was not precluded from applying for asylum and, thus, did not reach these issues.
    We therefore do not consider them. See Diaz-Reynoso v. Barr, 
    968 F.3d 1070
    ,
    1075 (9th Cir. 2020) (“Our review is limited to those grounds explicitly relied
    2
    credible.
    In her border and credible fear interviews, Flores told immigration officers
    that she had not been persecuted in Mexico. In both interviews, she stated that she
    came to the United States because she feared that her family would harm her
    because she is transgender. During the credible fear interview, when asked if she
    “fear[ed] the gov[ernment] or police of [her] home country would harm [her], she
    responded “I don’t fear they will harm me, but they do not protect me.” When
    asked who had “harmed or threatened her,” Flores said her family and neighbors.
    But in her second asylum application, she described an incident in which the police
    asked for her health card, placed her in a vehicle, threatened her with jail, and
    asked for sexual favors. In her hearing testimony, she stated that she was placed in
    a police vehicle six times, and three of those times she was asked for sexual favors.
    The “[m]aterial alterations in [Flores’s] account of persecution are sufficient to
    support an adverse credibility finding.” Zamanov v. Holder, 
    649 F.3d 969
    , 973–74
    (9th Cir. 2011) (denying petition for review when testimony portrayed “a much
    different—and more compelling—story of persecution than [the] initial
    application”).
    upon by the [BIA].” (alteration in original) (citation omitted)). Flores also purports
    to challenge the BIA’s determination that she did not belong to a particular social
    group. The BIA did reach this conclusion. Accordingly, the issue does not present
    a basis for granting the petition.
    3
    The agency properly considered Flores’s statements during her border
    interview and her credible fear interview because both interviews included indicia
    of reliability. See Liu v. Holder, 
    640 F.3d 918
    , 923 n.2, 925–26 (9th Cir. 2011)
    (holding that the agency permissibly relied on petitioner’s airport statements as
    part of adverse credibility determination when the interview was transcribed, and
    petitioner was provided an interpreter and had an opportunity to clarify her
    answers); Li v. Ashcroft, 
    378 F.3d 959
    , 963 (9th Cir. 2004) (concluding that
    petitioner’s airport interview was substantial evidence in support of adverse
    credibility determination and stating that this court’s “inquiry ends if the IJ could
    reasonably conclude that a sworn interview statement was a reliable impeachment
    source”), superseded on other grounds by statute, 
    8 U.S.C. § 1158
    (b)(1)(B)(iii).
    Specifically, the border interview, recorded on an I-213 form, indicates that
    Flores’s statements were sworn and witnessed, the interview was conducted in
    English, Flores stated she understood everything read to her in a jurat statement,
    and she was willing to answer questions.3 Cf. Singh v. Gonzales, 
    403 F.3d 1081
    ,
    1089–90 (9th Cir. 2005) (concluding that the record of an asylum interview lacked
    reliability because, in part, it did not indicate the language in which the interview
    3
    We need not resolve whether these indications of reliability are sufficient
    because, even if the agency erred in relying on the border interview, the credibility
    determination remains supported by material differences between Flores’s credible
    fear interview and her asylum application, and between Flores’s credible fear
    interview and her testimony on direct examination.
    4
    was conducted, or that an oath was administered before the interview began). The
    record of the credible fear interview indicates that a Spanish interpreter
    participated telephonically, and that an oath was administered to Flores. There is
    also a written record of the questions and answers during the interview.4 See 
    id.
     at
    1089–90 (describing indicia of reliability). Additionally, unlike the petitioner in
    Singh who was not “given any opportunity to explain” perceived discrepancies, 
    id. at 1090
    , Flores was given an opportunity at the merits hearing to explain the
    discrepancies between her credible fear interview and her subsequent statements
    and testimony.
    Moreover, the agency considered Flores’s explanations for the discrepancies
    and found them unpersuasive.5 Flores explained that she “answered no” when the
    asylum officer asked her if the police harmed or threatened her because she feared
    her statements would be “disclosed . . . to the police in Mexico.” Flores’s
    4
    Additionally, at the beginning of the interview an asylum officer told
    Flores that the “purpose of the interview” was to determine eligibility for “asylum
    or protection from removal to a country where your fear persecution or torture,” it
    was “very important that [she] tell the truth,” and “feel comfortable telling [the
    officer] why [she] fear[s] harm,” and that the interview may be her “only
    opportunity to give such information.”
    5
    In her petition for review Flores states that she did not understand that her
    communications with the asylum officer would remain confidential until after she
    retained counsel, and therefore she argues that little weight should be given to her
    failure to mention the police abuse in her “first pro se I-589.” But the BIA did not
    rely on that document to affirm the credibility determination. Thus, even if the IJ
    failed to consider this explanation for an omission from Flores’s “first pro se I-
    589,” that failure was inconsequential.
    5
    statements in her credible fear interview, including her denials of harm or threats
    by police in response to an asylum officer’s questions, directly contradicted her
    assertions in her second asylum application and hearing testimony. Thus, Flores
    did not merely omit details from her earlier statements. Flores’s case, therefore, is
    distinguishable from our caselaw rejecting adverse credibility determinations based
    on the delayed reporting of rape or sexual assault. See Paramasamy v. Ashcroft,
    
    295 F.3d 1047
    , 1050, 1053 (9th Cir. 2002) (observing that the petitioner “was not
    asked in her airport interview about the details or conditions of her Army
    confinement, so her failure to mention the sexual assault there cannot be
    considered an inconsistency”); Kebede v. Ashcroft, 
    366 F.3d 808
    , 811 (9th Cir.
    2004) (considering the “timing” of the petitioner’s disclosure of sexual assault, not
    whether it contradicted prior testimony); Mousa v. Mukasey, 
    530 F.3d 1025
    , 1028
    (9th Cir. 2008) (similar).
    Thus, the agency based its credibility determination on inconsistencies
    between Flores’s second asylum application and hearing testimony and her earlier
    denials of harm or threats from the police, and then found her explanation for those
    discrepancies unpersuasive. The agency was not compelled to credit Flores’s
    explanations. See Rizk v. Holder, 
    629 F.3d 1083
    , 1088 (9th Cir. 2011) (“If the IJ
    reasonably rejects the alien’s explanation, or if the alien fails to provide a plausible
    explanation, the IJ may properly rely on the inconsistency as support for an
    6
    adverse credibility determination.” (citation omitted)), overruled in part on other
    grounds by Alam, 
    11 F.4th 1133
    . And it reasonably rejected Flores’s explanation
    for the material inconsistencies.
    2.    The agency also did not err in concluding that the other record evidence did
    not independently meet Flores’s burden. In the absence of credible testimony or
    other evidence to meet her burden, Flores’s asylum and withholding of removal
    claims fail. See Wang v. Sessions, 
    861 F.3d 1003
    , 1009 (9th Cir. 2017).
    3.    Substantial evidence supports the agency’s denial of CAT relief, which
    depended on the same testimony as the asylum and withholding of removal claims.
    Unlike the petitioner in Avendano-Hernandez v. Lynch, 
    800 F.3d 1072
     (9th Cir.
    2015), Flores did not offer expert testimony to provide additional context for the
    country conditions evidence. 
    Id.
     at 1080–82 (discussing expert testimony). And
    the record in this case, including an unchallenged finding that the harm Flores
    experienced in Mexico did not rise to the level of past persecution, does not
    compel the conclusion it is more likely than not that Flores would be tortured if
    returned to Mexico. Flores has not shown that the record in this case compels a
    different conclusion than the one reached by the agency. See Jiang v. Holder, 
    754 F.3d 733
    , 740–41 (9th Cir. 2014) (concluding that a country report by itself was
    “insufficient to compel the conclusion that Petitioner would be tortured if
    returned”), overruled on other grounds by Alam, 
    11 F.4th 1133
    .
    7
    PETITION FOR REVIEW DENIED.
    8
    FILED
    Francisco Flores Barrera (Mariana Andrea Flores) v. Garland, No. 15-72997
    AUG 15 2022
    Paez, Circuit Judge, dissenting:                                         MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    Because the agency’s adverse credibility determination and analysis of the
    country conditions evidence is not consistent with our precedent, I respectfully
    dissent.
    1. It was error for the IJ and the BIA to rely on Flores Barrera’s (“Flores”)
    failure to report sexual assault sooner as the primary basis for the adverse
    credibility finding. As we have firmly recognized, “the assumption that the timing
    of a victim’s disclosure of sexual assault is a bellwether of truth is belied by the
    reality that there is often delayed reporting of sexual abuse.” Paramasamy v.
    Ashcroft, 
    295 F.3d 1047
    , 1053 (9th Cir. 2002) (holding that the petitioner’s failure
    to raise sexual assault in two prior interviews did not support an adverse credibility
    determination); see also Mousa v. Mukasey, 
    530 F.3d 1025
    , 1027-28 (9th Cir.
    2008) (rejecting Mousa’s failure to report sexual assault until she testified before
    the IJ as a basis for an adverse credibility finding); Kebede v. Ashcroft, 
    366 F.3d 808
    , 811 (9th Cir. 2004) (same). 1
    1
    To the extent Paramasamy relied on the fact that the petitioner’s sexual assault
    could not be an inconsistency, 
    295 F.3d at 1053
    , our later decisions make clear
    that—because of the stigma and ineffective response that survivors often face—
    “failing” or being “reluctant” to disclose sexual assault does not speak to their
    credibility, Kebede, 
    366 F.3d at 811
    ; Mousa, 
    530 F.3d at 1027-28
    . Here, Flores’s
    reluctance to report the sexual assault, including the denial of abuse at her credible
    fear interview, does not undermine her credibility.
    Flores recounted in her declaration that Mexican police officers accused her
    of illegal sex work, placed her in their vehicles, threatened her, asked her for
    sexual favors, and, along with physically harming her, “grabbed [her] sexually.”
    On one occasion shortly before her re-entry into the U.S., the police ordered her
    into their truck and threatened to place her in jail if she did not perform oral sex on
    an officer. Flores began to cry because, as she put it, “[t]his had happened many
    times before and [she] just couldn’t take it anymore.” The officers ordered her out
    of the truck after she cried and begged. The agency acknowledged that Flores
    testified the police subjected her to sexual assault, even upon threat of jail, yet
    discredited her because she did not raise it during her border or credible fear
    interview.
    Our cases recognize that “[a] woman who has suffered sexual abuse by
    government officials in her home country may be especially reluctant to reveal that
    abuse to government officials in this country, even when such a revelation could
    help her asylum application.” Mousa, 
    530 F.3d at
    1028 (citing Paramasamy, 
    295 F.3d at 1053
    ). This is “especially true when the woman is fleeing a country where
    reported rapes often go uninvestigated.” 
    Id.
     Flores explained in her testimony,
    consistent with her declaration, that she did not disclose the abuse by police sooner
    because she feared the information would be shared with the Mexican authorities
    and they would harm her. As the record shows, Mexican authorities have an
    2
    “ineffective and unsupportive” approach to investigating sexual assault and sexual
    violence remains a widespread problem in the border region. These concerns are
    further compounded because Flores is a transgender woman in Mexico—where
    country conditions evidence shows that police abuse transgender women, and other
    groups, with impunity.
    In my view, this flaw in the agency’s reasoning is sufficient alone to grant
    the petition, but the agency’s other reasons for rejecting Flores’s explanation also
    cannot withstand scrutiny. The IJ improperly speculated that Flores understood the
    privacy of immigration proceedings, including the different agency interviews,
    because she had prior contact with local police and courts in Nevada. See Joseph
    v. Holder, 
    600 F.3d 1235
    , 1245 (9th Cir. 2010) (rejecting the IJ’s reasoning as
    improper speculation about the petitioner’s level of relevant knowledge). The IJ
    also failed to consider Flores’s explanation that although she had experienced a
    prior immigration removal proceeding, she was pro se at that time. See Ai Jun Zhi
    v. Holder, 
    751 F.3d 1088
    , 1092-93 (9th Cir. 2014) (“An IJ must consider and
    address ‘[a]ll plausible and reasonable explanations for any inconsistencies’ that
    form the basis of an adverse credibility determination.”).
    Further, the agency erred by relying on the record of Flores’s border
    interview to impeach her. In Singh v. Gonzales, we held that the record of Singh’s
    asylum interview was not sufficiently reliable to impeach his testimony. 
    403 F.3d
                                         3
    1081, 1089-90 (9th Cir. 2005). Similar to Singh, the record here is limited to an I-
    213 form providing a short, two-paragraph summary of Flores’s border interview
    without any transcript or record of the questions and answers. See 
    id. at 1089
    . The
    interviewing officer did not testify at her hearing, nor was Flores asked about the
    border interview or given an opportunity to explain perceived discrepancies. See
    
    id. at 1089-90
    . Indeed, the border interview was in English, but Flores’s removal
    proceedings were conducted with a Spanish interpreter. Her statements were made
    under oath, to be sure, but that alone does not render a record reliable for
    impeachment. See 
    id.
     Without a record of the questions asked or Flores’s
    answers, we cannot evaluate the agency’s findings. 
    Id. at 1089
    .
    The majority relies on Liu v. Holder, but Liu’s airport interview was
    transcribed, such that we could assess her “affirmative statement” against the
    agency’s findings, and Liu was given an opportunity to address the “incongruity at
    her hearing.” 
    640 F.3d 918
    , 923, 926 (9th Cir. 2011). In fact, we reiterated in Liu
    that an interview can be used for impeachment only if the record includes indicia of
    reliability, including a transcript, interpreter, and an opportunity to clarify answers.
    
    Id.
     at 923 n.2 (citing Singh, 
    403 F.3d at 1089
    ). The majority’s cite to Li v.
    Ashcroft, 
    378 F.3d 959
     (9th Cir. 2004), fares no better because Li also “illustrates
    the importance we have placed on ensuring that sufficient indicia of reliability
    exist before an asylum applicant’s [] interview may properly be used as an
    4
    impeachment source,” Singh, 
    403 F.3d at 1089
     (emphasis added) (distinguishing
    the “substantial evidence” in Li from the insufficient reliability for Singh’s
    interview). Flores’s border interview fails that threshold requirement.
    Flores’s failure to mention the incidents of sexual assault sooner was an
    improper basis for the adverse credibility finding, and the summary of her border
    interview was an improper basis on which to impeach her. This leaves only the
    differences between Flores’s declaration and her testimony. The details Flores
    testified to are entirely consistent with her declaration, and were not volunteered by
    Flores but rather elicited on cross-examination, so the additional details cannot
    alone support the adverse credibility finding. See Iman v. Barr, 
    972 F.3d 1058
    ,
    1067-69 (9th Cir. 2020).
    2. Apart from the adverse credibility determination, the majority ignores
    that the agency’s analysis of the country conditions evidence has been directly
    rejected by our court. The BIA’s reliance on civil rights laws protecting sexual
    orientation in Mexico is “fundamentally flawed,” as it conflates sexual orientation
    with gender identity and “mistakenly assumes” such laws would benefit a
    transgender woman. Avendano-Hernandez v. Lynch, 
    800 F.3d 1072
    , 1080-82 (9th
    Cir. 2015). Rather, the “unique identities and vulnerabilities of transgender
    individuals must be considered” in a claim based on transgender identity. 
    Id. at 1082
    . Flores did not provide an expert declaration to corroborate that the laws
    5
    protecting “the gay and lesbian community” in Mexico have, in fact, led to an
    increase in persecution. See 
    id. at 1081-82
    . But the majority’s attempt to
    distinguish Avendano-Hernandez by noting the expert’s opinion minimizes the
    holding of that case: The agency erred by relying on laws that protect sexual
    orientation—an identity that is “sometimes overlapping,” but stands entirely
    “distinct” from gender identity. 
    Id. at 1081
    .
    The BIA also failed to consider “the difference between a country’s
    enactment of remedial laws and the eradication of persecutory practices,” as well
    as the fact that national efforts “do not necessarily reveal anything” about state or
    municipal-level practices. Bringas-Rodriguez v. Sessions, 
    850 F.3d 1051
    , 1072
    (9th Cir. 2017) (en banc). Flores did not need an expert because the record country
    conditions evidence readily “shows that police specifically target the transgender
    community for extortion and sexual favors,” “that Mexico suffers from an
    epidemic of unsolved violent crimes against transgender persons,” Avendano-
    Hernandez, 800 F.3d at 1081, that transgender identity is not afforded the same
    protection as sexual orientation, and quite the opposite, “public moral laws” are
    often used to harass, detain, and extort transgender individuals.
    For those reasons, the country conditions evidence and the childhood abuse
    Flores suffered compels the conclusion that she is more likely than not to face
    6
    persecution. 2 But even if the evidence were insufficient to compel relief, we
    should grant the petition and remand for the BIA to reconsider its analysis because
    it did not have the benefit of our opinion in Avendano-Hernandez when it rejected
    Flores’s claims. See, e.g., Lorenzo-Lopez v. Whitaker, 747 F. App’x 587, 588 (9th
    Cir. 2019); Medina v. Sessions, 734 F. App’x 479, 482, 484 (9th Cir. 2018);
    Mondragon-Alday v. Lynch, 625 F. App’x 794, 795 (9th Cir. 2015).
    In sum, I would grant the petition for review and remand for the agency to
    reassess Flores’s credibility and eligibility for relief.
    2
    Her childhood abuse shows a well-founded fear of future persecution even if, as
    the majority suggests, the abuse does not compel a finding of past persecution. See
    Lim v. I.N.S., 
    224 F.3d 929
    , 936 (9th Cir. 2000) (holding that events did not
    compel a finding of past persecution but “trigger[ed] a well-founded fear of future
    persecution”).
    7