Jose Alonzo v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION OCT 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE H. ALONZO, AKA Jose Humberto No. 09-71407
Alonzo,
Agency No. A094-147-967
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 15, 2012**
Honolulu, Hawaii
Before: REINHARDT, THOMAS, and PAEZ, Circuit Judges.
Jose Humberto Alonzo petitions for review of the Board of Immigration
Appeals’s (“BIA”) decision finding him ineligible for (1) special rule cancellation
of removal under the Nicaraguan Adjustment and Central American Relief Act
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“NACARA”), Pub. L. No. 105-100, § 203, 111 Stat. 2160, 2193 (1997); (2)
asylum under the Immigration and Nationality Act (“INA”) § 208(b)(1), 8 U.S.C. §
1158(b)(1); and (3) withholding of removal under INA § 241(b)(3); 8 U.S.C. §
1231(b)(3). Because the parties are familiar with the history of the case, we need
not recount it here. We grant the petition in part and remand to the BIA for further
proceedings.
I
The BIA held that Alonzo was ineligible for special rule cancellation of
removal under NACARA. The only two categories of eligibility that Alonzo could
fit into are (1) a Salvadoran national who filed an asylum application on or before
April 1, 1990; or (2) a registered member of the class settlement in American
Baptist Churches v. Thornburgh (“ABC”), 760 F. Supp. 796 (N.D. Cal. 1991). 8
C.F.R. §§ 1240.60(a), 1240.61(a).
Alonzo cannot meet the requirements for the first avenue to NACARA relief
under 8 C.F.R. § 1240.61(a) because the only asylum application in the record is
dated January 17, 1997, which is not on or before April 1, 1990. Thus, the only
way for Alonzo to qualify for special rule cancellation would be to show that he is
a “registered ABC class member.” 8 C.F.R. § 1240.61(a).
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The regulations define an ABC class member as including “[a]ny Salvadoran
national who first entered the United States on or before September 19, 1990.” 8
C.F.R. § 1240.60. The regulations define “registered ABC class member” as
including a class member who is a national of El Salvador and either (1) properly
submitted an ABC registration form to the former Immigration and Nationalization
Service (“INS”) on or before October 31, 1991, or (2) applied for temporary
protected status (“TPS”) on or before October 31, 1991. Id. The only pertinent
evidence in the record is a form dated November 13, 1991 and approved by the
district director on December 23, 1991 that indicates that Alonzo was renewing his
annual registration for TPS status and that he was then in a temporary protected
status. See Kalubi v. Ashcroft, 364 F.3d 1134, 1140-41 (9th Cir. 2004). The BIA
determined that this document was an initial application, a conclusion that is belied
by the face of the document. Therefore, we must vacate the BIA’s decision and
remand for its reconsideration.
III
The BIA erred as a matter of fact and law in finding Alonzo ineligible for
asylum under INA § 208(b)(1) and withholding of removal under INA § 241(b)(3).
The BIA found that Alonzo’s asylum application was filed in May 2006. Because
of this, the BIA determined that Alonzo’s application is governed by the
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amendments to the INA enacted in the REAL ID Act, Pub. L. No. 109-13, Div. B,
§ 101(a)(3), 119 Stat. 231 (2005), 8 U.S.C. § 1158(b)(1)(B)(ii). According to the
REAL ID Act amendments, for all asylum applications filed on or after May 11,
2005, the trier of fact may require an applicant to provide corroborating evidence
even if the applicant has already provided credible testimony. REAL ID Act §
101(a)(3), (h)(2), 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact determines
that the applicant should provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence.”). Because it found that
Alonzo’s application was filed on or after May 11, 2005, the BIA concluded that
Alonzo’s failure to provide corroborating evidence could render him ineligible for
asylum.
But Alonzo’s application was not filed on or after May 11, 2005. Nothing in
the record supports the BIA’s factual finding that Alonzo filed his asylum
application in May 2006. The BIA cites to “Exh. 4,” but the only document in the
record to match that description is a notice concerning Alonzo’s biometric
processing appointment. Indeed, the evidence in the record directly contradicts the
BIA. The only Form I-589 Application for Asylum and Withholding of
Deportation in the record is signed and dated January 17, 1997. The cover sheet
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for the INS’s referral of Alonzo’s asylum application to the Immigration Court
states that the INS received Alonzo’s application on January 27, 1997. These two
documents, uncontradicted by anything else in the record, compel the conclusion
that Alonzo filed his asylum application in January 1997, well before May 11,
2005.
Because Alonzo filed his asylum application before the effective date of the
REAL ID Act, it is governed by the pre-REAL ID Act standards regarding
corroborating evidence. See id.; Joseph v. Holder, 600 F.3d 1235, 1246 n.8 (9th
Cir. 2010). Under the pre-REAL ID Act standards, the trier of fact may not require
corroborating evidence unless it first makes an explicit adverse credibility
determination. Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000), superseded by
statute as stated by Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir. 2009) (“In the
absence of an explicit adverse credibility finding, we must assume that Kataria’s
factual contentions are true . . . . Because Kataria’s testimony is deemed to be
credible, the BIA erred by requiring him to produce corroborating evidence.”).
Accordingly, before finding Alonzo ineligible for asylum based on his failure to
submit corroborating evidence of past persecution, the BIA must have made an
explicit adverse credibility determination. However, the BIA did not make such an
adverse credibility determination in this case.
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Therefore, the BIA erred as a matter of law in dismissing Alonzo’s appeal
based on its finding that Alonzo was ineligible for asylum—and, consequently,
withholding of removal—because he failed to provide sufficient corroborating
evidence. Accordingly, we remand this case so that the BIA may make an express
credibility determination under pre-REAL ID Act standards.
The BIA’s alternative finding that Alonzo lacked a well founded fear of
future persecution must be vacated and remanded as well, so that the BIA may
consider the effect of the presumption of past persecution if it concludes that
Alonzo was credible under pre-REAL ID standards and had suffered past
persecution.
For similar reasons, remand is also appropriate for Alonzo’s application for
withholding of removal. Alonzo may yet be able to establish past persecution, and
if he does, he is entitled to a rebuttable presumption of eligibility for withholding
of removal. 8 C.F.R. § 1208.16(b)(1); Tamang v. Holder, 598 F.3d 1083, 1091
(9th Cir. 2010).
IV
The government argues that because Alonzo’s asylum application contains
no declarations regarding either past persecution or fear of future persecution, he
has not contested the issue before the agency and has therefore not exhausted it.
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However, the BIA addressed the issue, and so the issue has been exhausted. See
Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010).
PETITION GRANTED; REMANDED.
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