632 F. App'x 192
5th Cir.2015Background
- Paul Roach, a Jamaican national, was ordered removable after criminal convictions and applied for withholding of removal and CAT protection, claiming fear of persecution if returned to Jamaica.
- Roach asserted three grounds: persecution for being homosexual, retaliation by gang members he attempted to testify against as a child, and persecution for a claimed “neutral” political opinion (refusal to join gangs).
- At hearings Roach admitted using aliases and giving false information to immigration officials; he offered no corroboration for his claimed homosexual identity despite having children and a prior marriage.
- The IJ denied asylum as untimely and denied withholding/CAT based on an adverse credibility finding (aliases/false IDs, inconsistencies about childhood sexual abuse, and lack of corroboration) and insufficiency of evidence on nexus, past persecution, and government involvement for CAT.
- The BIA upheld the adverse credibility determination and concluded that even assuming gang-fear testimony credible, Roach failed to show eligibility for withholding or CAT; Roach petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ/BIA erred in adverse credibility finding | Roach: BIA wrongly deferred to IJ; credibility not undermined | Government: IJ gave specific, record-based reasons (aliases, inconsistencies, lack of corroboration) | Court: Defer to IJ/BIA; adverse credibility supported by specific, cogent reasons |
| Whether IJ could require corroboration for sexual-orientation claim | Roach: IJ improperly demanded corroboration for homosexual identity | Government: REAL ID Act permits requiring corroboration even if testimony is credible | Court: Corroboration permissible; Roach failed to provide it and did not show it was unavailable |
| Whether Roach is eligible for withholding as prior witness against gang | Roach: Attempted testimony as a child places him at risk and in a cognizable social group | Government: No past persecution shown; relocation reasonable; witnesses generally not a cognizable group | Court: Even assuming arguendo group cognizable, evidence insufficient to show persecution or inability to relocate |
| Whether Roach qualifies for CAT protection | Roach: Gangs’ ties to corrupt officials create risk of torture | Government: Record lacks proof government acquiescence or that torture is more likely than not | Court: Evidence does not compel finding of likely torture by or with acquiescence of government |
Key Cases Cited
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (deference to IJ credibility rulings unless no reasonable fact-finder could make them)
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (substantial-evidence standard; court cannot substitute its judgment for BIA/IJ)
- Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005) (adverse credibility rulings must be supported by specific, cogent reasons)
- Elias–Zacarias v. INS, 502 U.S. 478 (1992) (review limited under substantial-evidence standard)
- Rui Yang v. Holder, 664 F.3d 580 (5th Cir. 2011) (REAL ID Act allows requirement of corroboration; review of availability of corroboration is limited)
- Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) (holding that witnesses who testify against gang members can constitute a cognizable social group)