Avelar Gonzalez v. Whitaker ( 2018 )

United States Court of Appeals
For the First Circuit
No. 18-1122
FRANCISCO AVELAR GONZALEZ,
Petitioner,
v.
MATTHEW G. WHITAKER,*
ACTING ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Stahl, and Lipez,
Circuit Judges.
Carlos E. Estrada, Ashley M. Barkoudah, and Estrada Law Office
on brief for petitioner.
Maarja T. Luhtaru, Trial Attorney, Civil Division, U.S.
Department of Justice, Chad A. Readler, Acting Assistant Attorney
General, Civil Division, and Rachel L. Browning, Acting Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
November 15, 2018
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.
LYNCH, Circuit Judge. Francisco Avelar-Gonzalez, a
native and citizen of El Salvador, seeks judicial review of a Board
of Immigration Appeals (BIA) decision affirming an Immigration
Judge's (IJ) denial of Avelar-Gonzalez's requests for asylum under
the Immigration and Nationality Act (INA) § 208(a), 8 U.S.C.
§ 1158(a), for withholding of removal under INA § 241(b)(3), 8
U.S.C. § 1231(b)(3), and for protection under Article 3 of the
United Nations Convention Against Torture (CAT).1
We focus on his argument, which underlies all his claims,
that the BIA erred in upholding the IJ's determination that Avelar-
Gonzalez did not provide adequate corroboration for his claims.
There is substantial evidence for the determination that Avelar-
Gonzalez did not provide adequate corroboration, which was
reasonably available to him, for crucial elements of his claims,
and so we deny the petition for review. We dismiss for lack of
jurisdiction Avelar-Gonzalez's claims regarding past persecution,
ineffective assistance of counsel, and protection under the CAT.
I.
Avelar-Gonzalez entered the United States on January 29,
2012, near Hidalgo, Texas. The next day, he gave a sworn statement
1 The Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S.
85, was implemented in the United States by the Foreign Affairs
Reform and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242,
112 Stat. 2681–761 (codified at 8 U.S.C. § 1231 (2012)).
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to the Border Patrol, discussed later. On February 20, 2012, the
Department of Homeland Security served Avelar-Gonzalez with a
Notice to Appear in removal proceedings, and charged him with
inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien
present in the United States without being admitted or paroled.
On March 16, 2012, Avelar-Gonzalez, through prior counsel,
conceded to the charge of removability, declined to name a country
for removal, and stated that he would seek "relief in the form of
asylum, withholding of removal, [and the] Convention Against
Torture." A change of venue to Boston was granted on July 13,
2012.
Avelar-Gonzalez filed an application for asylum on
December 11, 2012. The affidavit attached to Avelar-Gonzalez's
2012 asylum application contained only a single general paragraph
alleging being "chased . . . out of [El Salvador]" due to
involvement with the Nationalist Republican Alliance (ARENA), a
political party. The affidavit did not mention any specific
persecution or harm that Avelar-Gonzalez had experienced.
Further, Avelar-Gonzalez did not answer whether he, his family, or
his close friends or colleagues had experienced mistreatment or
harm in the past, and did not provide the requested information
about his background, such as his address, past residences,
education, employment, and family members.
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On January 5, 2017, more than four years after his
initial application and almost five years after entering the United
States, Avelar-Gonzalez then filed what the parties refer to as an
"updated application" for asylum. The IJ evaluated the updated
application. Avelar-Gonzalez's updated asylum application stated
that he had a fear of persecution based on his political party
membership. He supported that with a lengthier 2017 affidavit,
filed with the updated application, which stated, "I left my
country because my life was at risk on account of my political
opinion." As to his political opinion, Avelar-Gonzalez said that
he was an active member of ARENA.
Avelar-Gonzalez's affidavit described three violent
incidents in El Salvador after Avelar-Gonzalez joined ARENA in
2007. First, while he and other ARENA members were "involved in
outreach efforts" in March 2008, a group from a rival political
party, Farabundo Martí National Liberation Front (FMLN), accosted
and physically assaulted them. He escaped, with bruises. Second,
while he was campaigning with other ARENA members in November 2008,
a group of people wearing FMLN shirts threatened the ARENA members,
and then shot at them. Two members of the ARENA group were shot,
though Avelar-Gonzalez was not, and the police took witness
statements. A report was compiled, but no copies were provided.
Third, around February 2009, Avelar-Gonzalez was threatened at
knifepoint by men in FMLN t-shirts while leaving a football match,
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because he refused to remove an ARENA t-shirt he was wearing.
Avelar-Gonzalez did not report this incident to the police and
does not claim he was injured during this incident. Avelar-
Gonzalez's affidavit did not mention any incidents of persecution
or harm after the February 2009 incident, though he was in El
Salvador for nearly three more years before entering the United
States on January 29, 2012.
At a merits hearing before an IJ on March 7, 2017,
Avelar-Gonzalez testified that he had left El Salvador due to
attacks based on his ARENA membership. When testifying, Avelar-
Gonzalez was at times unable to remember details about the three
violent incidents, such as where and when the shooting had occurred
or how many FMLN members were involved in the March 2008 incident.
As to the March 2008 incident, Avelar-Gonzalez testified that this
altercation started when FMLN members attempted to "destroy the
[ARENA party] propaganda," or promotional material. After ARENA
members "were opposed to that," the FMLN members then began hitting
the ARENA members. The police responded to the incident; Avelar-
Gonzalez said ARENA officials filed a report with the police, but
again he did not provide a copy. Avelar-Gonzalez also testified
that he was threatened about ten other times beyond the three
incidents mentioned in his affidavit, including in phone calls and
written notes, but he did not provide detail regarding these
incidents, nor did he describe these threats in his affidavit. He
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was also unable to remember "approximately what . . . these notes"
said.
Avelar-Gonzalez's immigration record contained a sworn
statement given to Border Patrol agents on January 30, 2012, the
day after he crossed the border. In this sworn statement, Avelar-
Gonzalez said that he left El Salvador in order "[t]o live and to
look for work in Miami, Fl[orida]." When asked if he had "any
fear or concern about being returned to [his] home country or being
removed from the United States," he stated "[n]o." He also
answered "[n]o" when asked, "[w]ould you be harmed if you are
returned to your home country or country of last residence?" In
front of the IJ, Avelar-Gonzalez testified that he did not remember
giving this sworn statement to Border Patrol agents, and that he
did not remember telling the agents that he did not have a concern
about being returned to El Salvador or otherwise removed from the
United States. He did, however, acknowledge that his signature
was on the sworn statement, and he did not claim that the interview
with the Border Patrol had not happened.
In an oral decision on March 7, 2017, the IJ denied
Avelar-Gonzalez's applications. The IJ noted a number of
inconsistencies between Avelar-Gonzalez's affidavit and his
testimony regarding the three violent incidents, and expressed
concern with Avelar-Gonzalez's vague testimony and inability to
remember, or provide detail about, several important events. For
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example, the IJ noted that Avelar-Gonzalez testified that he was
not injured during the March 2008 incident, before being confronted
about the inconsistency with his affidavit. Avelar-Gonzalez
amended his testimony to say that the declaration was correct
rather than his initial testimony.
The IJ further stated that Avelar-Gonzalez's testimony
was "somewhat at odds" with his affidavit regarding the February
2009 incident, including when and where the incident occurred and
whether he was threatened at knifepoint or was shot at by FMLN
members. Also, the IJ noted that Avelar-Gonzalez "was not able to
remember what happened in November 2008," and that this was a
significant event for his asylum application, as fellow ARENA
members were allegedly shot by FMLN members. The IJ stated that
these particular inconsistencies and vague testimony "g[a]ve the
court pause," but the IJ did not hold them against Avelar-Gonzalez.
The IJ then expressed further concern with the
"different version of events that [Avelar-Gonzalez] told to the
Border Patrol," as compared to Avelar-Gonzalez's declaration and
testimony before the IJ. The IJ also raised a concern regarding
Avelar-Gonzalez's testimony that he had been threatened numerous
times after the February 2009 incident, since these threats were
not discussed in Avelar-Gonzalez's affidavit and Avelar-Gonzalez
failed to provide detail about these threats during his testimony.
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Due to these concerns regarding inconsistencies,
vagueness, and the omission of important events from Avelar-
Gonzalez's application, the IJ had "serious doubts [about] the
respondent's credibility." The IJ determined that Avelar-Gonzalez
had not produced necessary corroboration, such as police reports
from the November 2008 attack, medical records from fellow ARENA
party members' injuries, or notes related to the threats. The IJ
found that further corroborating evidence "appears to have been
reasonably available" (given that at least his mother and aunt
remained in El Salvador), and that Avelar-Gonzalez "did not
adequately explain his failure to supply such corroborating
evidence." Avelar-Gonzalez did provide a notarized letter
recounting statements from two persons in El Salvador2 and a letter
from a representative of ARENA. The second letter confirms Avelar-
Gonzalez was "part of the team of ARENA activists." It says that
2 The IJ referred to this letter as "from his parents," as
did the BIA. This appears to be incorrect based on the record,
which indicates that the letter was from two people who did not
say how they knew Avelar-Gonzalez, though the letter does refer to
Avelar-Gonzalez's parents. Avelar-Gonzalez testified that his
father is dead, though Avelar-Gonzalez's updated asylum
application stated that his father was then alive and living in El
Salvador.
In any case, labeling the letter as from Avelar-
Gonzalez's parents is at most harmless error, because the IJ
considered the letter's contents fairly, and did not discount or
credit the letter based on its authorship. See Butt v. Keisler,
506 F.3d 86, 90 (1st Cir. 2007) (holding that a mistake of fact by
an IJ constituted harmless error because it did not affect the
outcome of the decision).
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"based on the high crime conditions . . . of El Salvador and mainly
the district of Colon Township [that Avelar-Gonzalez] has been
faced with on a daily bas[i]s[,] he had no choice but to migrate
to the United States because his life was in danger."
However, the IJ noted that the notarized letter from two
persons stated that Avelar-Gonzalez was attacked in December 2011
by gang members from both the "MS" and "18" gangs (not the FMLN),
and did not provide any further detail on the motivations for these
attacks. Further, the three incidents Avelar-Gonzalez testified
to were in 2008 and 2009, not 2011. The letter from the
representative of ARENA confirms that Avelar-Gonzalez was a member
of ARENA, but otherwise does not confirm his declaration or his
testimony. The IJ concluded that Avelar-Gonzalez did not meet his
burden to show that the events actually happened, essential for
asylum, even considering the so-called corroborating evidence.
We do not detail all of the IJ's findings and conclusions
regarding asylum. The IJ denied Avelar-Gonzalez's applications
for asylum and for withholding of removal (which requires meeting
a higher standard). Finally, considering the CAT claim, the IJ
determined that Avelar-Gonzalez had not demonstrated that it was
more likely than not that he would be tortured by or with the
consent of a public official if he returned to El Salvador.
Avelar-Gonzalez appealed the IJ's decision to the BIA.
The BIA dismissed the appeal on January 9, 2018. Adopting some of
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the IJ's decision, the BIA determined that the IJ did not err in
concluding that Avelar-Gonzalez had not provided adequate
corroborating evidence for the basic elements of his asylum claim,
and did not err in the weight ascribed to the two letters submitted
by Avelar-Gonzalez. It affirmed denial of relief, noting that
Avelar-Gonzalez did not claim past persecution in his appeal, and
did not argue a CAT claim.
II.
We review the BIA's legal conclusions de novo, albeit
"with some deference to the agency's expertise in interpreting
both the statutes that govern its operations and its own
implementing regulations." Vega–Ayala v. Lynch, 833 F.3d 34, 38
(1st Cir. 2016) (quoting Alvizures–Gomes v. Lynch, 830 F.3d 49, 52
(1st Cir. 2016)). We review the BIA's findings of fact and
credibility under a "highly deferential" substantial evidence
standard, Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005),
under which we uphold the BIA's findings "if 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole[,]'" I.N.S. v. Elias-Zacarias, 502 U.S. 478,
481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We uphold such
findings "unless any reasonable adjudicator would be compelled to
conclude to the contrary." Silva v. Gonzales, 463 F.3d 68, 72
(1st Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). "When the BIA
adopts and affirms the IJ's ruling but also examines some of the
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IJ's conclusions, this Court reviews both the BIA's and IJ's
opinions." Villalta-Martinez v. Sessions, 882 F.3d 20, 23 (1st
Cir. 2018) (quoting Perlera–Sola v. Holder, 699 F.3d 572, 576 (1st
Cir. 2012)).
An alien seeking asylum bears the burden of establishing
that he or she is a "refugee" as defined by the INA. Villa-Londono
v. Holder, 600 F.3d 21, 24 (1st Cir. 2010). To do so, the alien
must establish either past persecution or a well-founded fear of
future persecution, both subjective and objective, "on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). An
alien's testimony can be enough to establish this status, see
Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007), but "testimony
need not be taken at face value," Rivas-Mira v. Holder, 556 F.3d
1, 4 (1st Cir. 2009).
A. Lack of Corroboration
In our view, this case turns on the issue of Avelar-
Gonzalez's failure to provide adequate corroboration of his story.
After reviewing the record, we find that the BIA did not err in
upholding the IJ's conclusion that Avelar-Gonzalez did not provide
adequate corroboration to establish elements of his asylum claim.
The IJ noted inconsistencies and vague testimony regarding
important facts, including about the three primary incidents and
about alleged later threats. The IJ expressed special concern
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regarding the inconsistency between Avelar-Gonzalez's story as
related in his asylum application and testimony, and his story in
the sworn statement to the Border Patrol agents in 2012, where
Avelar-Gonzalez stated that he did not have a fear of being
returned to El Salvador and that he had come to the United States
simply "[t]o live and to look for work in Miami, Fl[orida]." As
a result, the IJ had "serious doubts [about] the respondent's
credibility."
Based in part on these credibility concerns -- though
with no adverse credibility finding -- the IJ determined that
Avelar-Gonzalez's claims required further corroboration, about the
events themselves and about the reasons why Avelar-Gonzalez was
targeted (if he was in fact targeted). "The weaker an applicant's
testimony, the greater the need for corroborating evidence."
Soeung v. Holder, 677 F.3d 484, 488 (1st Cir. 2012).
As the IJ correctly explained, the letter from a
representative of ARENA did not mention any attacks or targeting
due to political affiliation; instead, the letter generally
mentioned Avelar-Gonzalez's need to move due to "the high crime
conditions." The IJ also properly pointed out that the other
letter mentioned attacks by the "MS" gang and the "18" gang in
2011, but did not mention earlier incidents or clearly provide
reasons for the 2011 attacks. Nor did Avelar-Gonzalez mention
these 2011 attacks during his testimony. Furthermore, Avelar-
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Gonzalez did not explain why he did not include in his affidavit
any discussion of events occurring after early 2009, including the
2011 attacks. As it stands, nothing in his affidavit mentions any
harm or persecution in El Salvador during the almost three years
before he left the country. Avelar-Gonzalez did not provide
further corroborating evidence such as police reports from the
shooting incident, threatening written notes he received, or
medical reports from injuries he says other ARENA members suffered.
Nor did he provide evidence from a parent or other relative
corroborating his testimony.
IJs can require corroboration without making an adverse
credibility determination. Balachandran v. Holder, 566 F.3d 269,
273 (1st Cir. 2009). "[S]uch [corroborating] evidence must be
provided unless the applicant does not have the evidence and cannot
reasonably obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii).
Here, the IJ explicitly found that corroborating evidence "appears
to have been reasonably available" and that Avelar-Gonzalez "did
not adequately explain his failure to supply such corroborating
evidence." "[T]hese findings are entitled to deference." Soeung,
677 F.3d at 488 (citing 8 U.S.C. § 1252(b)(4)).
It was reasonable for the IJ to conclude that some
further corroborating evidence should have been available.
Submitting the two letters "show[s] both that he was able to obtain
corroborating items . . . and that he was aware of the need to
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provide documentation in support of his application."
Balachandran, 566 F.3d at 273; see In re S–M–J–, 21 I. & N. Dec.
722, 725 (BIA 1997) ("[A]n asylum applicant should provide
documentary support for material facts which are central to his or
her claim and easily subject to verification."). Avelar-Gonzalez
did not provide a clear or sufficient explanation for why no
further corroboration was provided or available. And Avelar-
Gonzalez filed his updated asylum application nearly five years
after entering the United States, clearly ample time to complete
a more comprehensive application, including evidence that actually
corroborated his assertions.
The BIA's determination, upholding the IJ, regarding
Avelar-Gonzalez's failure to produce sufficient corroborating
evidence is supported by substantial evidence. We stress again
that Avelar-Gonzalez bore the burden of substantiating the facts
underlying his asylum claim. See Bahta v. Lynch, 835 F.3d 65, 72
(1st Cir. 2016). In claiming a well-founded fear of future
persecution, Avelar-Gonzalez relies heavily on the past events
that have not been adequately corroborated. His future persecution
claim cannot survive this failure of corroboration, and he does
not argue otherwise. See generally Khan v. Mukasey, 541 F.3d 55,
58 (1st Cir. 2008) (denying petitioner's CAT claim "because it
depended on the same uncorroborated evidence as his asylum claim").
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B. Withholding of Removal
Since the standard for withholding of removal is more
stringent than the standard for asylum, see Alvarez-Flores v.
I.N.S., 909 F.2d 1, 4 (1st Cir. 1990),3 "our disposition of the
petitioner's asylum claim dooms his withholding of removal claim
as well," Rivera-Coca v. Lynch, 844 F.3d 374, 381 (1st Cir. 2016).
C. Claims Over Which We Have No Jurisdiction
1. Past Persecution
Avelar-Gonzalez has failed to exhaust his administrative
remedies on his past persecution claim, having failed to make any
clear argument concerning past persecution to the BIA, as the BIA
noted. The BIA said, as a result, it did not consider this
argument. "A failure to present developed argumentation to the
BIA on a particular theory amounts to a failure to exhaust
To establish eligibility for asylum based on future
3
persecution, an applicant must show a "well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). To establish eligibility for withholding
removal under 8 U.S.C. § 1231(b)(3) based on future persecution,
an applicant must " establish that it is more likely than not that
he or she would be persecuted on account of race, religion,
nationality, membership in a particular social group, or political
opinion upon removal to [a] country." 8 C.F.R. § 1208.16(b)(2)
(emphasis added). The Supreme Court has held that for a well-
founded fear of future persecution in an asylum claim, "it need
not be shown that the situation will probably result in
persecution, but it is enough that persecution is a reasonable
possibility," at least sometimes including cases where the chance
of harm is "10%[.]" I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440
(1987) (quoting I.N.S. v. Stevic, 467 U.S. 407, 424-25 (1984)).
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administrative remedies as to that theory." Ramirez-Matias v.
Holder, 778 F.3d 322, 327 (1st Cir. 2015).
2. Protection Under the CAT
Avelar-Gonzalez also claims that the IJ and the BIA
"improperly considered" his request for protection under the CAT,
and particularly his argument concerning non-refoulement under
Article 3 of the CAT. He did not make this argument to the BIA.
"[I]t is black-letter law that 'arguments not raised before the
BIA are waived due to a failure to exhaust administrative
remedies.'" García v. Lynch, 821 F.3d 178, 182 (1st Cir. 2016)
(quoting Shah v. Holder, 758 F.3d 32, 37 (1st Cir. 2014)); see 8
U.S.C. § 1252(d)(1). That Avelar-Gonzalez made an argument
concerning the CAT to the IJ does not suffice: "an alien cannot
leapfrog over the BIA; that is, he cannot proffer a theory to the
IJ, forgo any presentation of that theory to the BIA, and then
resurrect the theory on a petition for judicial review." Ramirez-
Matias, 778 F.3d at 327.
3. Ineffective Assistance of Counsel
Avelar-Gonzalez next argues that his due process rights
were violated, because his former counsel was so ineffective that
Avelar-Gonzalez did not obtain a fair hearing before the BIA.
There is no Sixth Amendment right to counsel in deportation
proceedings because they are not criminal. Lozada v. I.N.S., 857
F.2d 10, 13 (1st Cir. 1988). However, this court has held that if
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the deportation proceeding "was so fundamentally unfair that the
alien was prevented from reasonably presenting his case," that
constitutes a due process violation. Id. (quoting Ramirez-Durazo
v. INS, 794 F.2d 491, 499-500 (9th Cir. 1986)).
Here, Avelar-Gonzalez's ineffective assistance of
counsel claim is not properly before us, because he did not exhaust
his administrative remedies and has not shown good cause for this
failure.4 Though "[t]here are some claims of denial of due process
or deprivation of constitutional rights that are exempt from this
exhaustion requirement because the BIA has no power to address
them, . . . [t]he BIA has procedures to hear ineffective assistance
of counsel claims through a motion to reopen." Bernal-Vallejo v.
I.N.S., 195 F.3d 56, 64 (1st Cir. 1999); see Hernandez v. Reno,
238 F.3d 50, 55 (1st Cir. 2001) ("In the ordinary case, . . . [a
petitioner] must use the Board's own procedures to resolve his
competency of counsel claims."). Avelar-Gonzalez did not file a
motion to reopen here, and has made no showing of good cause for
not doing so.
4 Avelar-Gonzalez's claim of ineffective assistance
focuses on the inclusion of arguably irrelevant material in his
submission to the BIA and the concession of his past persecution
claim. It does not go to Avelar-Gonzalez's insufficient
presentation of facts or of corroborating evidence. The BIA's
primary holding was that the IJ did not err in concluding that
Avelar-Gonzalez had not provided adequate corroboration to
establish elements of his asylum claim.
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III.
Avelar-Gonzalez's petition for review is denied as to
his challenge to the BIA's upholding of the IJ's finding of lack
of corroboration. It is dismissed for lack of jurisdiction as to
his past persecution challenge, his due process challenge, and his
CAT challenge.
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