Julio Choy-Alvarez v. Jefferson Sessions
706 F. App'x 417
| 9th Cir. | 2017Background
- Julio Enrique Choy-Alvarez and his wife Isabel Matilda Sebastian-Fuentes appealed the BIA’s dismissal of their applications for asylum, withholding of removal, and CAT relief.
- The IJ denied relief; the BIA affirmed. Petitioners sought review in the Ninth Circuit under 8 U.S.C. § 1252(a).
- The government found Choy-Alvarez ineligible for asylum under the terrorism bar based on his relationship and activities with the Shining Path.
- The BIA made an adverse credibility finding as to Choy-Alvarez’s testimony about his knowledge of and relationship with the Shining Path, citing inconsistent testimony without reasonable explanation.
- The BIA concluded Sebastian-Fuentes failed to show an objective basis for future persecution in Peru; although her testimony was credible for past incidents, she presented no objective evidence of individualized risk.
- The court held it lacked jurisdiction to review the Attorney General’s terrorism-bar determination to the extent it was a discretionary asylum-bar decision, but retained jurisdiction over legal questions about the scope of the bar, withholding, and CAT.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review terrorism-bar asylum determination | Choy-Alvarez asked court to review BIA’s denial of asylum | Government argued the court lacks jurisdiction to review the Attorney General’s determination that petitioner engaged in terrorist activity | Court: lacks jurisdiction to review that discretionary determination, but retains jurisdiction over legal questions about the terrorism bar (limited review) |
| Credibility of Choy-Alvarez regarding Shining Path ties | Choy-Alvarez disputed government’s characterization and denied material support | Government relied on inconsistent testimony and facts supporting ties to Shining Path | Court: substantial evidence supports BIA’s adverse credibility finding |
| Application of terrorism bar / burden to prove it does not apply | Choy-Alvarez argued he did not provide material support and thus was eligible | Government argued petitioner failed to prove by preponderance that terrorism bar did not apply | Court: petitioner failed to carry the burden; substantial evidence supports ineligibility for asylum and withholding |
| Sebastian-Fuentes’ eligibility for asylum/withholding/CAT | Sebastian-Fuentes asserted well-founded fear based on four incidents in Peru | Government argued lack of objective evidence of individualized risk and no showing of future torture likelihood | Court: her testimony satisfied subjective fear but lacked objective proof; asylum denied; withholding and CAT relief not established |
Key Cases Cited
- Lolong v. Gonzales, 484 F.3d 1173 (9th Cir.) (standard that court must uphold agency decision unless evidence compels contrary conclusion)
- Khan v. Holder, 584 F.3d 773 (9th Cir.) (court retains jurisdiction over legal questions about terrorism bar though not over discretionary determinations)
- Mansour v. Ashcroft, 390 F.3d 667 (9th Cir.) (standard for withholding of removal more stringent than asylum)
- Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.) (standard for CAT relief: likelihood of torture more likely than not)
- Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir.) (issues not raised in opening brief are waived)