Aguedita Ordonez Tevalan v. Attorney General United States, 837 F.3d 331

Background

Ordonez (Guatemalan national) entered U.S. in March 2014, was removed, then reentered with her young son Gonzalez in June 2014; DHS sought to reinstate the prior removal and placed both in removal proceedings.
Ordonez applied for withholding of removal and CAT protection (form also used for asylum); Gonzalez sought derivative relief.
IJ denied relief, finding Ordonez not credible (inconsistent dates, documentary conflicts, Border Patrol testimony issues) and ruled she failed to show likelihood of persecution or government-acquiesced torture; Gonzalez’s claims failed largely because they were derivative of his mother’s.
BIA affirmed both IJ decisions on May 4, 2015. Petitioners timely filed petitions for review in the Third Circuit.
Parties jointly moved the BIA to reopen; BIA reissued the May 4 decisions unchanged on July 14, 2015. The government moved to dismiss the original petition for lack of jurisdiction; the Third Circuit found it retained jurisdiction and proceeded to the merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA’s grant of motion to reopen and reissuance of unchanged decisions divests court of appeals of jurisdiction over earlier petition for review	Reissuance merely cured record; original BIA decisions remained reviewable and petition was timely	Reissuance vacated prior final decisions and started new 30-day filing period; original petition became untimely	Court retained jurisdiction: reissued orders did not materially alter prior rationale, so original petition remained reviewable (Stone/Thomas framework applied)
Whether IJ/BIA erred in adverse credibility finding as to Ordonez	Ordonez argued testimony and affidavits supported fear of future harm from ex-boyfriend Lopez	Government argued inconsistencies between testimony and affidavits, inherent improbabilities, and documentary conflicts justified adverse credibility	Credibility determination upheld as supported by inconsistent statements, contradictory evidence, and improbable testimony; relief denied
Whether Ordonez established entitlement to withholding of removal (more likely than not standard)	Ordonez asserted risk of future persecution by Lopez if returned	Government argued no objective showing of persecution on protected ground and credibility defects	Withholding denied; petitioner failed to show persecution on account of protected ground and failed burden of proof
Whether petitioners established entitlement to CAT protection	Petitioners argued they face torture if returned	Government argued no evidence torture would be inflicted or acquiesced in by government officials	CAT relief denied; no showing torture would be inflicted by or with consent/acquiescence of public officials

Key Cases Cited

Stone v. INS, 514 U.S. 386 (statute contemplates consolidation; finality of BIA order not undone by motion to reopen/reconsider)
Thomas v. Att’y Gen., 625 F.3d 134 (3d Cir.) (BIA reconsideration/reopening only strips jurisdiction if subsequent decision substantively alters earlier rationale)
Toure v. Att’y Gen., 443 F.3d 310 (3d Cir.) (adverse credibility review standard: inconsistent statements, contradictory evidence, inherently improbable testimony)
Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir.) (withholding of removal standard: more likely than not due to protected ground)
Chen v. Ashcroft, 376 F.3d 215 (3d Cir.) (deference to credibility determinations)
Fatin v. INS, 12 F.3d 1233 (3d Cir.) (definition and scope of persecution)
Chang v. INS, 119 F.3d 1055 (3d Cir.) (objective evidence required to meet withholding standard)
Voci v. Gonzales, 409 F.3d 607 (3d Cir.) (review of BIA and IJ decisions when BIA adopts and affirms IJ)
Espinal v. Holder, 636 F.3d 703 (5th Cir.) (same jurisdictional approach to successive BIA decisions)
Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir.) (same)
Jaggernauth v. Att’y Gen., 432 F.3d 1346 (11th Cir.) (same)
Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir.) (same)