Armando Florentin Barrios-Monzon v. U.S. Attorney General, 684 F. App'x 879

Background

Barrios-Monzon, a Guatemalan national, entered the U.S. multiple times; after a 2008 apprehension he signed a sworn DHS statement saying he had no fear of returning to Guatemala and that he had been living in Guatemala before his attempted entry.
In January 2009 he reentered the U.S., later applied for withholding of removal and CAT protection claiming fear of the Zetas due to threats tied to his evangelizing and prior U.S. travel.
On the eve of the merits hearing, his primary counsel was ill; a substitute contract attorney requested a continuance which the IJ denied but allowed 45 minutes to prepare; the original counsel arrived during the hearing and then resumed representation.
The IJ found Barrios-Monzon not credible, citing contradictions between his testimony and the 2008 DHS sworn statement and lack of corroboration, and denied withholding and CAT relief.
The BIA affirmed the IJ, and in a footnote took "administrative notice" of an additional discrepancy in the 2008 statement (that Barrios-Monzon had been living in Guatemala, not Mexico), which the IJ had not specifically relied on.
Barrios-Monzon did not timely seek review of the BIA’s original decision; he filed a motion for reconsideration arguing the BIA improperly relied on a record fact not discussed by the IJ; the BIA denied the motion and Barrios-Monzon petitioned for review of that denial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review BIA’s original denial of continuance/due process claim	Barrios-Monzon: BIA erred by affirming IJ’s denial of continuance, violating due process	Government: Petition for review of the original decision was untimely; jurisdiction limited to the denial of the reconsideration motion	Dismissed for lack of jurisdiction as to the due process/continuance claim (untimely challenge to original BIA decision)
Whether the BIA engaged in improper factfinding by relying on a portion of the 2008 DHS statement not discussed by the IJ	Barrios-Monzon: BIA improperly took administrative notice and relied on new evidence without notice or opportunity to respond	Government: The disputed DHS statement was already in the record; BIA merely noted an existing discrepancy supporting the IJ’s credibility finding	Denied — BIA did not abuse discretion; noting a record discrepancy was permissible and did not constitute improper factfinding
Whether the IJ’s adverse credibility determination was supported	Barrios-Monzon: Testimony was credible; 2008 statement was coerced/false	DHS/Respondent: Contradictions between sworn 2008 statement and later testimony, lack of corroboration, and inconsistencies supported adverse credibility	BIA and IJ’s adverse credibility determination was not clearly erroneous; IJ reasonably relied on inconsistencies and lack of corroboration
Whether BIA was required to provide notice before taking administrative notice	Barrios-Monzon: BIA should have given notice and chance to rebut when taking administrative notice of the 2008 statement	Government: The statement was part of the record and the IJ had relied on other parts; no additional notice required	Held: No notice required under these circumstances because the material was already in the record

Key Cases Cited

Stone v. INS, 514 U.S. 386 (finality of removal orders unaffected by motions to reopen or reconsider)
Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (statutory time limit for filing petition for review in immigration proceedings is jurisdictional)
Chacku v. U.S. Att’y Gen., 555 F.3d 1281 (standard of review for BIA denial of motion for reconsideration: abuse of discretion)
Seck v. U.S. Atty. Gen., 663 F.3d 1356 (BIA and IJ must consider all evidence introduced by the applicant)