542 F. App'x 456
6th Cir.2013Background
- Petitioner Delmer Ueraldo Contreras-Torres, a Honduran national, entered the U.S. without inspection in April 2006 and was charged with removability under INA § 212(a)(6)(A)(i).
- He conceded removability, applied for asylum, withholding of removal, and CAT protection, but later withdrew asylum and CAT claims and proceeded on withholding of removal only.
- Contreras-Torres asserted MS-13 had threatened him in Honduras and was still seeking him; he claimed fear of return based on those threats and extortion demands tied to his work/savings.
- The Immigration Judge (IJ) denied withholding of removal, finding Contreras-Torres not credible (noting material inconsistencies between his written application and oral testimony) and that he failed to show nexus to a protected ground (particular social group). The IJ granted voluntary departure.
- The Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s adverse credibility finding as not clearly erroneous and agreed there was no evidence threats were motivated by membership in a particular social group.
- The Sixth Circuit reviewed the BIA decision under the substantial-evidence standard and denied the petition for review.
Issues
| Issue | Contreras-Torres' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the IJ’s adverse credibility finding was supported by substantial evidence | Inconsistencies were minor; he need not include exhaustive detail in the written application | Inconsistencies between written statement and testimony (frequency, timing, employment, police report authenticity) undermine credibility | Court held adverse credibility finding was supported by substantial evidence and not clearly erroneous |
| Whether he established nexus to a particular social group for withholding of removal | Threats/extortion tied to his family business/exposure from selling bread/working—family or business-related group | Threats were motivated by perceived earnings/extortion, not immutable group membership; business owners/people with money are not a protected group | Court held he failed to establish membership in a particular social group and thus failed to meet withholding standard |
| Whether the IJ improperly discredited his police report without giving opportunity to authenticate | He argued the IJ relied on an inaccurate age in the report and did not allow him to substantiate it | He was asked on cross and provided no proof or request for time to authenticate the report | Court held failure to authenticate and lack of request for more time supported the IJ’s treatment of the report |
| Standard of review for BIA decision adopting IJ reasoning | N/A (procedural) | BIA decision reviewed as final agency determination; IJ reasoning also reviewed where adopted | Court applied substantial-evidence review and affirmed BIA decision |
Key Cases Cited
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (BIA decision reviewed as final agency determination where it issues a separate opinion)
- Hachem v. Holder, 656 F.3d 430 (6th Cir. 2011) (substantial-evidence standard for credibility and factual findings)
- El-Moussa v. Holder, 569 F.3d 250 (6th Cir. 2009) (REAL ID Act requires credibility determinations based on totality of circumstances)
- Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009) (definition of particular social group; family membership discussion)
- Khozhaynova v. Holder, 641 F.3d 187 (6th Cir. 2011) (people targeted for extortion/for having money do not constitute a protected social group)
- Vindel v. Holder, [citation="504 F. App'x 396"] (6th Cir. 2012) (per curiam) (extortion/targeting for money is not a protected social group)
- Mapouya v. Gonzales, 487 F.3d 396 (6th Cir. 2007) (pre-REAL ID Act credibility principles)
- Shkabari v. Gonzales, 427 F.3d 324 (6th Cir. 2005) (pre-REAL ID Act credibility principles)
- Liti v. Gonzales, 411 F.3d 631 (6th Cir. 2005) (pre-REAL ID Act credibility principles)