Aguedita Ordonez Tevalan v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-2187
______________
AGUEDITA ORDONEZ-TEVALAN;
JULIO GONZALEZ ORDONEZ,
Petitioners
v.
ATTORNEY GENERAL OF
THE UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of Decisions
and Orders of the Board of Immigration Appeals
(BIA-1 : A206-637-211)
(BIA-1 : A206-795-327)
Immigration Judge: Andrew R. Arthur
______________
Submitted under Third Circuit L.A.R. 34.1(a)
March 4, 2016
Petition for Panel Rehearing Granted
September 21, 2016
BEFORE: JORDAN, GREENBERG, and SCIRICA,
Circuit Judges
(Filed: September 21, 2016)
______________
Carol A. Donohoe
P.O. Box 12912
Reading, PA 19612
Attorney for Petitioners
Lindsay Corliss
United States Department of Justice
Office of Immigration Litigation
Room 2207
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Benjamin C. Mizer
Principal Deputy Assistant Attorney General
Civil Division
Brianne Whelan Cohen
Senior Litigation Counsel
Office of Immigration Litigation
Thomas W. Hussey
United States Department of Justice
Office of Immigration Litigation
2
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Loretta Lynch
Attorney General
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
______________
OPINION
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on a petition for
review of two decisions and orders of the Board of Immigration
Appeals (“BIA”). Aguedita Odilia Ordonez-Tevalan
(“Ordonez”) petitions for review of the BIA’s decision and
order dismissing her appeal from a decision and order of an
immigration judge (“IJ”) denying her applications for asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”). In addition, Julio Gonzalez Ordonez
(“Gonzalez”), Ordonez’s youngest son, petitions for review of
the BIA’s decision and order dismissing his appeal from the IJ’s
3
decision and order denying his derivative application for asylum,
withholding of removal, and protection under the CAT.
While this petition was pending in this Court, petitioners
and the Attorney General filed a joint motion with the BIA to
reopen the BIA proceedings. The BIA granted that motion and
reissued its decisions and orders without change. The
petitioners did not file a petition for review in this Court of the
reissued decisions and orders. Thereafter the Attorney General
filed a motion with this Court to dismiss the petition for review
of the original decisions and orders for lack of jurisdiction. We
hold that because the reissued decisions and orders did not alter
the prior decisions and orders that petitioners challenge in their
petition, we have jurisdiction over their petition. Therefore we
will deny the Attorney General’s motion to dismiss the petitions
on jurisdictional grounds. We, however, will deny the petition
for review on the merits.
II. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Ordonez is a native and citizen of Guatemala who has
three sons. Ordonez first entered the United States on March
28, 2014, unaccompanied by her children and apparently
without inspection, but on that day Border Patrol agents detained
her. She claims that during this detention she expressed fear of
returning to Guatemala because of abuse she had suffered there.
Nevertheless, the Department of Homeland Security, after
serving her with a Notice and Order of Expedited Removal,
removed her on April 2, 2014. But on June 1, 2014, within less
than two months of her removal, Ordonez reentered the United
4
States with her youngest son, Gonzalez, who was then six years
old, apparently again without inspection. This entry also was
not successful, as the Border Patrol detained her and Gonzalez
on June 1, 2014. In immigration court proceedings that
followed, the IJ in his decision stated that, as Ordonez
“explained it, she returned with [her son] because she was told
that it was more likely that she would be released if she were to
show up with a child[.]” (AR 81). Ordonez, however, left her
other two sons in Guatemala with her parents. Following
Ordonez’s second detention, the Department of Homeland
Security initiated proceedings against her to restore the prior
order of removal, and served Gonzalez with a notice to appear in
immigration court to answer the charge that he was removable
under 8 U.S.C § 1182(a)(6)(A)(i).
On September 25, 2014, while these removal proceedings
were pending, Ordonez filed an application seeking asylum,
withholding of removal, and protection under the CAT.1
Gonzalez applied for similar relief as a derivative applicant on
his mother’s application.
In the immigration court, Ordonez resisted removal and
sought protective relief based on her alleged fear of abusive
conduct by her former boyfriend, Jose Lopez, with whom she
had a relationship from approximately 1998 to 2000. Ordonez
contended before the IJ that during that time frame, Lopez
1
According to the Attorney General’s brief, Ordonez did not
actually seek asylum but she sought withholding of removal and
CAT relief on a form that is also used when an alien is seeking
asylum. (Respondent’s br. at 6 n.4). Nevertheless, inasmuch as
the IJ and the BIA considered asylum, we address an asylum
claim in this opinion.
5
subjected her to verbal, physical, and sexual abuse. Ordonez
testified in the immigration court that in April 2000, she ended
her relationship with Lopez and thereafter she had no contact or
communication with him until January 2014, when, apparently
by chance, she encountered him. Ordonez asserts that during
this encounter, Lopez grabbed her on the street, kicked her,
threw her to the ground, and attempted to rape her, but she
managed to escape. Ordonez claims that later in the same
month, Lopez found her at her home and raped her. She alleges
that he threatened to kill her and any of her children who were
with her if he saw her again. As a result of these alleged actions
and threats, Ordonez asserts that she stopped leaving her house
alone and fled to this country to escape Lopez.
Following oral testimony and the filing of affidavits, an
IJ on December 3, 2014, denied Ordonez’s claims for relief. In
his oral decision, the IJ first noted that Ordonez was placed only
in withholding of removal proceedings in accordance with 8
C.F.R. § 208.31(e) because she was ineligible for asylum due to
the reinstatement of the prior order for her removal. See 8
U.S.C. § 1231(a)(5); 8 C.F.R. § 208.16. In addressing the merits
of the case, the IJ concluded that Ordonez was not credible
given her vague recollections of dates, inconsistencies between
her testimony and documentary evidence, and his belief that her
testimony regarding the Border Patrol’s conduct during her first
attempt to enter this country was “inconsistent with what the
Court knows to be the practice of the Border Patrol.” (AR 91).
Accordingly, he rejected her application. The IJ further
determined that even if her testimony had been credible, she still
failed to establish a basis for withholding of her removal.
Finally, the IJ denied Ordonez relief on her CAT claim because
he determined that there was no basis to find that any harm she
6
had suffered in Guatemala or would suffer if she returned to that
country had been or would be inflicted or instigated by or with
the consent, acquiescence, or willful blindness of any public
official or person acting in an official capacity.
The IJ also determined that Gonzalez’s claims failed
because of Ordonez’s lack of credibility. The IJ found support
for this outcome by observing that Gonzalez’s two older
brothers continued to live in Guatemala without incident, a
circumstance from which an inference could be drawn that he
could safely return to that country. Petitioners appealed to the
BIA from the IJ’s decisions and orders.
On May 4, 2015, the BIA dismissed petitioners’ appeals.
In reaching its result, the BIA discerned “no clear error” in the
IJ’s “consideration of the totality of the circumstances,” (AR 5),
and concluded that the IJ “provided specific, cogent reasons for
finding [Ordonez] not credible under section 208(b)(1)(B)(iii) of
the Immigration and Nationality Act (‘INA’),” (AR 5).
Moreover, the BIA concluded that Ordonez had “not presented
independent evidence showing that a probability as opposed to a
possibility of torture is more likely than not, by or with the
consent or acquiescence (to include the concept of willful
blindness) of an official of the Guatemalan government” if she
returned to Guatemala. (AR 5). As a result, the BIA dismissed
Ordonez’s appeal in its entirety.
In a separate decision and order, also issued on May 4,
2015, the BIA dismissed Gonzalez’s appeal from the decision
and order that the IJ had rendered with respect to him. The BIA
first referenced its affirmance of the IJ’s denial of Ordonez’s
claims for asylum and withholding of removal due to her lack of
credibility. The BIA then noted that Gonzalez’s asylum
7
application was derivative to Ordonez’s and thus he did not have
an independent claim for relief. Accordingly, the BIA
concluded that, in light of his mother’s ineligibility for relief, his
claims, too, must fail. Alternatively, the BIA noted that any
threatened harm to Gonzalez, even if credible, would not be on
account of any protected ground. Further, the BIA highlighted
the fact that the record did not reflect that Gonzalez suffered any
harm before leaving Guatemala or that his two older brothers
who remained in Guatemala suffered any harm either before or
after their mother left Guatemala to come to this country.
Finally, the BIA rejected Gonzalez’s CAT claim because the
adverse credibility finding with respect to Ordonez entirely
foreclosed his claims.
On May 13, 2015, petitioners filed a timely petition for
review and a motion for a stay of removal in this Court. On
June 1, 2015, the Attorney General and petitioners filed a joint
motion with the BIA to reopen the BIA proceedings because
neither party had received the decision and order from the BIA
that dismissed Gonzalez’s appeal. On the same day, the
Attorney General filed a motion to hold the proceedings on the
petition for review in abeyance in light of the joint motion
before the BIA to reopen the proceedings before the BIA. The
Attorney General argued that “[i]f the Board reopens
proceedings, this Court will no longer have jurisdiction over the
Board decision that is currently the subject of the petition for
review filed in this case.” (See Respondent’s Motion to Hold
Proceedings in Abeyance, at 1 (June 1, 2015)). Petitioners did
not object to this request.
On July 14, 2015, the BIA entered an order in which it
granted the joint motion to reopen the BIA proceedings.
Specifically, the BIA stated that “[t]he record reflects that a
8
separate decision was prepared on behalf of [Gonzalez], but may
not have been received by the parties.” Respondent’s Response
to Court Order and Motion to Dismiss, Ex. 3, at 3 (3d Cir. Aug.
3, 2015). Consequently, the BIA ordered that its prior decisions
of May 4, 2015, with respect to both petitioners, be reissued and
further determined that they “shall be treated as entered as of
today’s date”—namely, July 14, 2015. Id.
Petitioners filed an uncontested motion for a stay of
removal and on August 3, 2015, we granted that motion and
denied the Attorney General’s motion to hold the proceedings in
abeyance as moot in light of the BIA’s July 14, 2015 reissuance
of its May 4, 2015 decisions and orders. We also asked the
parties to comment on the purpose of the motion to reopen and
the effect, if any, of the BIA’s reissuance of its earlier decisions
and orders on this Court’s jurisdiction.
The Attorney General on August 3, 2015, filed a motion
to dismiss the petition for review for lack of jurisdiction. In that
submission, the Attorney General clarified that the purpose of
the joint motion before the BIA was to allow the BIA to address
Gonzalez’s claims, as the parties may not have recognized that it
already had done so. The Attorney General argued that, as a
result of the BIA’s reissuance of its earlier decisions and orders,
we lacked jurisdiction to entertain the petition for review
because the May 4, 2015 decisions and orders were no longer
final. The Attorney General also asserted that petitioners would
have 30 days from the date of the reissuance of the decisions
and orders, i.e., until August 13, 2015, to file a petition for
review of the reissued decisions and orders. But petitioners did
not file a new petition for review within that time period or at
any point thereafter. Accordingly, we directed the parties to file
supplemental letter memoranda to address the question of
9
whether we have jurisdiction.
Petitioners contended in response to our direction to
comment on the question of the motion to reopen that the BIA
reissued its May 4, 2015 decisions and orders on July 14, 2015,
solely to cure an unintentionally incomplete record, and the
reissuance of the May 4, 2015 decisions and orders, without
change, did not render the initial petition for appellate review
moot. They asserted that, to the contrary, the reopening ripened
the case so that the decisions and orders could be reissued and
we could address their pending petition for review on the merits.
The Attorney General, however, argued that the BIA’s original
decisions and orders were no longer final, as they had been
vacated and replaced by the new decisions and orders and
therefore we do not have jurisdiction over the petition for review
of the original decisions and orders. The Attorney General also
pointed out that “[p]etitioners had ample opportunity to file new
petitions for review after the newly issued decisions[,]”
particularly inasmuch as the Attorney General’s motion to
dismiss, filed on August 3, 2015, “specifically alerted the parties
to the necessity of filing new petitions for review” on or before
August 13, 2015. (See Respondent’s Letter Memorandum in
Response to the Court’s Feb. 2, 2016 Order, at 3 (Feb. 9, 2016)).
III. STATEMENT OF JURISDICTION AND STANDARD
OF REVIEW
The BIA had jurisdiction over this action pursuant to 8
C.F.R. §§ 1003.1(b)(2) and 1240.15. We discuss our
jurisdiction under 8 U.S.C. § 1252(a), INA § 242(a), at length
10
below and ultimately conclude that we have jurisdiction.2 On
the merits, we “decide the petition only on the administrative
record on which the order[s] of removal [were] based,” 8 U.S.C.
§ 1252(b)(4)(A), and “the administrative findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary,” 8 U.S.C. §
1252(b)(4)(B).
IV. DISCUSSION
A. Jurisdiction
An order of removal may be reviewed only when “[t]he
petition for review [is] filed not later than 30 days after the date
of the final order of removal.” 8 U.S.C. § 1252(b)(1) (emphasis
added). Though the petition for review was timely, we are left
with the jurisdictional issue of whether the BIA’s grant of a
motion to reopen proceedings, which resulted in the reissuance
of previous decisions and orders without change, divested us of
jurisdiction to hear the merits of the petition for review from the
original decisions and orders. We conclude that it does not.
In Stone v. INS, 514 U.S. 386, 115 S. Ct. 1537 (1995), the
Supreme Court interpreted the consolidation provision of 8
U.S.C. § 1252,3 which currently reads as follows: “When a
2
Venue is properly in this Court because the IJ completed the
proceedings in York, Pennsylvania.
3
When the Supreme Court decided Stone, the consolidation
provision was codified at 8 U.S.C. § 1105a(a)(6) and contained
11
petitioner seeks review of an order under this section, any
review sought of a motion to reopen or reconsider the order shall
be consolidated with the review of the order.” 8 U.S.C. §
1252(b)(6). The issue before the Court in Stone was whether
the Court of Appeals for the Sixth Circuit correctly concluded
that it lacked jurisdiction to hear a petition for review of a
deportation order then pending before it, the specific question
being “whether the filing of a timely motion for reconsideration
of a decision by the Board of Immigration Appeals tolls the
[time] period for seeking judicial review of the decision.”
Stone, 514 U.S. at 388, 115 S.Ct. at 1541.
Stone dealt with an adverse deportation decision and
order that the BIA made with respect to the petitioner, Marvin
Stone, on July 26, 1991. Id. at 389, 115 S.Ct. at 1541. Without
then filing a petition for review, Stone filed a timely “motion to
reopen and/or reconsider” the July 26, 1991 decision and order
with the BIA in August 1991. Id. On February 3, 1992—“some
17 months later”—the BIA denied the motion as frivolous. Id.
Thereafter, Stone petitioned the court of appeals for review of
both the July 26, 1991 deportation order and the February 3,
1992 denial of his motion to reopen or reconsider. Id. On a
simple counting of days, the petition was timely as to the
February 1992 order, but untimely as to the July 1991
deportation order. See id. The court of appeals held that it did
wording that is slightly different from its current form. But the
wording of the prior and current consolidation provisions is not
different in substance. See Stone, 514 U.S. at 393-94, 115 S.Ct.
at 1543 (setting forth the then-controlling provision); Thomas v.
Att’y Gen., 625 F.3d 134, 139 n.3 (3d Cir. 2010) (discussing
Stone and providing an annotated comparison of current §
1252(b)(6) with the previous § 1105a(a)(6)).
12
not have jurisdiction to review the July 26, 1991 deportation
order, though it could review the February 3, 1992 order
denying the motion to reopen. The issue in the Supreme Court,
then, was whether the filing of the motion to reopen and/or for
reconsideration tolled the time within which Stone could file a
petition for review of the July 26, 1991 deportation order, or,
alternatively, whether Stone’s petition for review was out of
time with respect to that order so that the court of appeals
correctly dismissed it. See id.
Turning to the consolidation provision, the Court
concluded that “[b]y its terms, [it] contemplates two petitions
for review and directs the courts to consolidate the matters.” Id.
at 394, 115 S.Ct. at 1543. The Court elaborated:
The words of the statute do not
permit us to say that the filing of a
petition for reconsideration or
reopening dislodges the earlier
proceeding reviewing the
underlying order. The statute, in
fact, directs that the motion to
reopen or reconsider is to be
consolidated with the review of the
order, not the other way around.
This indicates to us that the action
to review the underlying order
remains active and pending before
the court. We conclude that the
statute is best understood as
reflecting an intent on the part of
Congress that deportation orders
are to be reviewed in a timely
13
fashion after issuance, irrespective
of the later filing of a motion to
reopen or reconsider.
Id. at 394, 115 S.Ct. at 1543-44.
Stone established that the initial BIA decision is “final
when issued, irrespective of the later filing of a reconsideration
motion, and the aggrieved party would seek judicial review of
the order within the specified period. Upon denial of
reconsideration, the petitioner would file a separate petition to
review that second final order.” Id. at 395, 115 S.Ct. at 1544;
accord id. at 405, 115 S.Ct. at 1549 (“The consolidation
provision . . . reflects Congress’ understanding that a deportation
order is final, and reviewable, when issued. Its finality is not
affected by the subsequent filing of a motion to reconsider.”).
Stone dealt with a scenario in which the petitioner did not file
his petition from the initial BIA order but rather filed his
petition after the BIA denied his motion for reopening or
reconsideration. Consequently, the court of appeals correctly
did not review the deportation order.
Though Thomas v. Attorney General, 625 F.3d 134 (3d
Cir. 2010), differed factually from Stone, we followed Stone in
that case. In Thomas, we dealt with a scenario in which an
applicant filed a petition for review from an initial BIA decision
and order simultaneously with the filing of a motion with the
BIA to reconsider its prior decision and order.4 The
4
In a comparable situation, a district court would not have
jurisdiction to entertain a motion for reconsideration once an
appeal had been taken unless the court of appeals remanded the
case to that court. See Venen v. Sweet, 758 F.2d 117, 120 (3d
14
jurisdictional question in that case arose because the applicant
did not file a second petition for review after the BIA granted
the motion to reconsider and issued a new decision altering its
recitation of several pertinent facts, but adhering “to the legal
analysis set forth in its initial decision.” Id. at 136. We
concluded in Thomas that, in light of Stone, we retained
jurisdiction over the initial petition for review.
While Thomas began its analysis with reliance on Stone
for the proposition that the initial BIA order was “final” for
purposes of 8 U.S.C. § 1252, it proceeded to note that “[t]he
finality of an order . . . is not the only requirement that must
exist before we may exercise jurisdiction.” Thomas, 625 F.3d at
139 (citing Jaggernauth v. Att’y Gen., 432 F.3d 1346, 1351
(11th Cir. 2005)). We explained that we must also look to the
constitutional “case-or-controversy requirement,” which “‘limits
the business of federal courts to questions presented in an
adversary context and in a form historically viewed as capable
of resolution through the judicial process[.]’” Id. (alteration in
original) (some internal quotation marks omitted) (quoting U.S.
Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202,
1208 (1980)). “When the questions or issues presented are no
longer ‘live,’ the case is moot. That is, an issue is moot if
changes in circumstances that prevailed at the beginning of the
litigation have forestalled any occasion for meaningful relief.”
Id. at 139-40 (citations and internal quotation marks omitted).
Applying these justiciability principles to the facts then at
hand, we acknowledged in Thomas that the BIA’s subsequent
Cir. 1983). But there is no doubt that the BIA could reconsider
its decisions and orders in this case without a remand from the
Court. See 8 C.F.R. § 1003.2.
15
grant of the motion for reconsideration constituted a change in
circumstances. Id. at 140. Nevertheless, we clarified that “[t]he
BIA’s mere grant of a motion for reconsideration . . . does not in
itself render the petition for review moot.” Id. “Rather, it is the
substance of the BIA’s subsequent decision, upon
reconsideration, that determines whether there is still a live issue
for the court of appeals to resolve.” Id. We provided the
following criterion to determine appealability when there are
successive BIA decisions and orders:
[I]f the BIA’s subsequent decision
substantively altered the ratio
decidendi in its earlier disposition
and operated to vacate the BIA’s
earlier decision, then the petition
for review of the earlier decision is
without effect because there is no
longer any order or decision for the
court of appeals to review. On the
other hand, if the BIA’s subsequent
decision did not materially alter the
rationale of the earlier ruling, that
ruling remains effective and subject
to judicial review by the court of
appeals.
Id.
Based on this analysis, we held in Thomas that we
retained jurisdiction over the initial petition for review, because
the BIA’s decision following its grant of the motion for
reconsideration “adhered to its earlier legal analysis” and
differed only in its correction of specific factual errors. Id. at
16
141. Our decision in Thomas was, and remains, consistent with
the reasoning of the majority of courts of appeals to address this
jurisdictional question. See, e.g., Espinal v. Holder, 636 F.3d
703, 705-06 (5th Cir. 2011); Plasencia-Ayala v. Mukasey, 516
F.3d 738, 745 (9th Cir. 2008), overruled on other grounds by
Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir.
2009) (en banc); Jaggernauth, 432 F.3d at 1350-52; Khouzam v.
Ashcroft, 361 F.3d 161, 167 (2d Cir. 2004). But see Bronisz v.
Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004) (“[T]he grant of a
motion to reopen vacates the previous order of deportation or
removal and reinstates the previously terminated immigration
proceedings.”).
While Thomas involved a motion for reconsideration and
thus in itself does not resolve the issue before us, we hold that
its framework applies equally to a motion to reopen, particularly
where, as here, the parties sought the reopening simply so that
the BIA could reissue earlier decisions and orders. Inasmuch as
the BIA’s reissuance of its initial decisions and orders in this
case did not change its initial decisions and orders from which
petitioners already had sought review, we retain jurisdiction to
address the petitioners’ petition for review. Consequently, the
Attorney General’s motion to dismiss will be denied, and we
will proceed to the merits of the petition for review.
B. Merits
We recognize that removal cases frequently raise
sensitive issues as it is no small thing to require an alien who
may face adverse or even desperate circumstances in her home
country to return there. Nevertheless, there are statutes and
regulations governing removal cases and our consideration of
these binding standards and the record in this case makes clear
17
that the petition for review in this case is not meritorious. In
reaching this conclusion we limit our review of the merits to the
administrative record on which the orders of removal were
based. 8 U.S.C. § 1252(b)(4)(A). Inasmuch as the BIA adopted
and affirmed the IJ’s decisions and orders as well as making an
independent analysis, we review both the IJ’s and the BIA’s
decisions and orders. See Voci v. Gonzales, 409 F.3d 607, 612-
13 (3d Cir. 2005).
The BIA’s factual findings are “conclusive unless any
reasonable adjudicator would be compelled to conclude
otherwise.” 8 U.S.C. § 1252(b)(4)(B). This deferential standard
applies equally to credibility determinations. Chen v. Ashcroft,
376 F.3d 215, 222 (3d Cir. 2004) (“[W]e are required to sustain
an adverse credibility determination unless . . . no reasonable
person would have found the applicant incredible.” (citation and
internal quotation marks omitted) (alteration in original)).
Critically, “[w]e look at an adverse credibility determination to
ensure that it was based on inconsistent statements,
contradictory evidence, and inherently improbable testimony.”
Toure v. Att’y Gen., 443 F.3d 310, 325 (3d Cir. 2006) (citation
omitted).
It is often the case that a petitioner will seek relief
through the grant of asylum, withholding of removal, and relief
under the CAT. A petitioner has the burden to demonstrate her
eligibility for asylum, 8 C.F.R. § 1208.13(a), and, to satisfy that
burden, she must prove that she is a refugee. See 8 U.S.C. §
1158(b). A “refugee” is a person outside her country of
nationality who is “unable or unwilling” to return to that country
“because of persecution or 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).
18
Ordonez’s claim for asylum, however, cannot possibly be
successful because she is not eligible for asylum as she entered
the country illegally after being removed. 8 U.S.C. §
1231(a)(5).
Nevertheless Ordonez may seek and, if justified, obtain
an order for withholding of removal as she is not categorically
precluded from obtaining that relief. To demonstrate her
qualification for withholding of removal, “an alien must show
that if returned to [her] country, it is more likely than not that
[her] life or freedom would be threatened on account of race,
religion, nationality, membership in a particular social group, or
political opinion.” Amanfi v. Ashcroft, 328 F.3d 719, 726 (3d
Cir. 2003) (citations omitted). “To meet this standard, [an alien]
must show with objective evidence that it is ‘more likely than
not’ [that she] will face persecution if [she] is deported” to her
home country. Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.
1997) (citation omitted). “‘[P]ersecution’ is an extreme concept
that does not include every sort of treatment our society regards
as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993).
Finally, to receive protection under the CAT, an alien
must prove that “it is more likely than not that . . . she would be
tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2). Torture is “an extreme form of cruel
and inhuman treatment,” id. § 1208.18(a)(2), “inflicted by or at
the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity,” id. §
1208.18(a)(1). Using the deferential standards that we set forth
above, we turn to petitioners’ claims for relief from removal.
We note at the outset of our merits analysis that there is
substantial evidence to support the adverse credibility
19
determination with respect to Ordonez’s testimony because the
administrative record demonstrates “inconsistent statements,
contradictory evidence, and inherently improbable testimony,”
all of which support the IJ’s and the BIA’s conclusions on the
credibility issue. Toure, 443 F.3d at 325. First, Ordonez
submitted affidavits from two individuals she contends had
knowledge of the abuse she endured in Guatemala at the hands
of Lopez. Jorge Tevalan Puac (“Puac”), who is identified as the
First Auxiliary Mayor of the Village Aldea Felicidad, was one
such affiant. His affidavit states that he reviewed the records of
the auxiliatura, which reflect that Ordonez complained to the
local authorities in the village on June 6, 2014, to state that she
was the victim of domestic violence. When asked about this
affidavit, Ordonez identified Puac as a neighbor, not a
government official. Moreover, Ordonez was asked why the
Puac affidavit stated that she complained about the domestic
violence on June 6, 2014, when, in fact, she was in the custody
of immigration officials in this country on that date. She had no
explanation for this discrepancy.
The second affiant was Estaban Vail (“Vail”), who is
identified as the Community Mayor of the Village of Nueva
Cajola. In his affidavit, Vail states that Ordonez was a victim of
domestic violence during her married life. When asked about
this affidavit, Ordonez stated that Vail was another neighbor
who worked as a farmer. Ordonez was asked about the specific
reference to “married life” and conceded that no one in the
village knew about her prior relationship with Lopez. Rather,
they were aware of her marriage to the father of her children,
Magdaleno Gonzalez de Belan, and she does not claim that he
abused her. As was the case with respect to the Puac affidavit,
Ordonez could not explain the discrepancy in this affidavit. As
20
a result of these affidavits, both of which appear to have been
submitted from two local mayors in Guatemala, Ordonez was
asked whether she knows anyone who works in government.
She replied that she did not, even when questioned directly
about the titles provided on the Puac and Vail affidavits. It was
only after direct, repeated questioning that Ordonez
acknowledged that Puac and Vail held local governmental
positions. These inconsistencies between Ordonez’s testimony
and the documentary evidence she submitted provide sufficient
evidence to support the IJ’s credibility determination.
Finally, Ordonez is not entitled to protection under the
CAT because there is no evidence in the record that she was
subjected to abuse “inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). To the
contrary, both Ordonez’s testimony and the affidavits submitted
on her behalf indicate that the local government and other
members of her community did not condone any abuse and, in
fact, offered her assistance. Based on the record before us, we
are constrained to accept the adverse credibility determination
and conclude that the IJ and the BIA properly denied Ordonez’s
requests for withholding of removal and protection under the
CAT. Thus, as Ordonez also is barred from obtaining asylum
she cannot obtain relief in these proceedings.
The IJ and the BIA likewise correctly denied Gonzalez’s
claims. His alleged entitlement to relief is entirely reliant on his
mother’s claimed fear of persecution. Because the adverse
credibility determination with respect to her makes her claims
unsustainable, so, too, does it prevent Gonzalez from
establishing his claims. Moreover, even if Ordonez had been
credible, Gonzalez, like his mother, has failed to identify his
21
membership in a cognizable social group, a requirement for both
his asylum claim and his request for withholding of removal.5
See Amanfi, 328 F.3d at 726. Ordonez’s testimony makes clear
that the only threat that Lopez allegedly made to her children
was to harm them if they were with her when he harmed her.
Thus, the evidence does not support the claim that Gonzalez
cannot return to Guatemala “because of persecution or 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). Consequently, the IJ
correctly denied his application for asylum and withholding of
removal, and the BIA correctly dismissed his appeal from that
disposition.
Finally, Gonzalez’s claim for protection under the CAT
also fails because there is no evidence that it is “more likely than
not” that he would be “tortured” if returned to Guatemala.
Rather, the record demonstrates that the local government
officials do not condone domestic violence and that his older
brothers remain in Guatemala unharmed. Accordingly, the IJ
and the BIA properly determined that he is not entitled to
protection under the CAT.
V. CONCLUSION
5
The BIA indicated that inasmuch as Gonzalez “is a derivative
asylum applicant, he does not have a claim for asylum
independent from his mother’s claim.” (AR 463). We are not
suggesting that a minor child pursuing a derivative application
based on his parent’s application must himself be a member of a
protected cognizable social group if his parent is a member of a
protected cognizable social group, but that is not the situation in
this case.
22
For the foregoing reasons, we will deny the Attorney
General’s motion to dismiss the petition for review for lack of
jurisdiction and will deny the petition for review filed on behalf
of petitioners on the merits. Any order outstanding for stay of
removal of either petitioner will be vacated.
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