Rosa Avelar-Oliva v. William Barr, U. S. Atty Gen
954 F.3d 757
| 5th Cir. | 2020Background:
- Avelar-Oliva, a Salvadoran national, alleged long‑term childhood sexual abuse by her mother’s cousin Rosalio and later threats/attacks by him from Jan 2016–Feb 2017; Rosalio was identified as a police officer.
- She fled El Salvador after a February 14, 2017 confrontation and entered the U.S. without documents on May 1, 2017; an asylum officer found she had a credible fear in a telephonic CFI conducted in Spanish.
- At a merits hearing the IJ found Avelar-Oliva not credible based on multiple inconsistencies between her CFI, affidavit, and testimony, and denied asylum, withholding, and CAT relief; the IJ also found certain aspects of her story implausible.
- The BIA affirmed, relying on specific inconsistencies (bruising description, who witnessed incidents, omission of childhood sexual abuse in the CFI, timing of notice to partner) and concluded the CFI was sufficiently reliable; it declined to adopt some IJ implausibility findings.
- Avelar-Oliva challenged (1) the use/reliability of the CFI, (2) the BIA’s selective reliance on IJ findings/standard of review, (3) the adverse credibility ruling and related corroboration conclusions, and (4) the requirement that IJs need not give advance notice/automatic continuance to obtain corroboration.
- The Fifth Circuit reviewed for substantial evidence as to factual findings and denied the petition, holding the BIA/IJ credibility and corroboration determinations were supported by the record.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reliability/use of CFI | CFI unreliable under Ramsameachire factors; BIA/IJ should have analyzed those factors specifically | CFI was conducted in Spanish, officer asked follow-ups, no record of confusion; courts may consider CFIs for credibility | Court: BIA/IJ adequately considered CFI; Ramsameachire factors would not change result; consideration of CFI was proper |
| BIA’s selection of IJ findings / standard of review | BIA erred by applying "clearly erroneous" standard while relying on only a subset of IJ findings; cannot pick and choose | Issue not exhausted before BIA; and BIA may decline some IJ findings if those it relies on suffice under substantial‑evidence review | Court: Issue unexhausted (jurisdictional); in any event BIA may rely on subset of findings if they support the result |
| Adverse credibility based on inconsistencies | Inconsistencies were trivial or due to CFI confusion; omission of childhood abuse is explainable by trauma | Any inconsistency may support adverse credibility; record shows specific contradictions across CFI, affidavit, testimony | Court: Adverse credibility supported by specific, cogent reasons; no compelled contrary conclusion under substantial‑evidence review |
| Corroboration procedure / notice & continuance | IJ must give advance notice of specific corroboration needed and automatic continuance (follow Ren/Chukwu) | BIA precedent (Matter of L‑A‑C‑) permissibly holds applicant bears burden to introduce corroboration; no automatic notice/continuance required | Court: Joins circuits deferring to BIA — no requirement for advance notice/automatic continuance; Ren’s procedure applies only if testimony otherwise credible |
Key Cases Cited
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (standard: factual findings reviewed for substantial evidence)
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (permitting any inconsistency to support adverse credibility if totality supports finding)
- Singh v. Sessions, 880 F.3d 220 (5th Cir. 2018) (deference to IJ credibility findings unless no reasonable factfinder could do so)
- Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) (articulated factors for evaluating airport/CFI reliability)
- Ghotra v. Whitaker, 912 F.3d 284 (5th Cir. 2019) (consistency rules for credibility findings)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (review limits on availability of corroborating evidence)
- Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) (requires IJ to give notice and opportunity to obtain corroboration when otherwise credible testimony needs corroboration)
- Chukwu v. Attorney General, 484 F.3d 185 (3d Cir. 2007) (similar to Ren on corroboration procedure)
- Liu v. Holder, 575 F.3d 193 (2d Cir. 2009) (applicant bears burden to introduce corroboration without IJ prompting)
- Uzodinma v. Barr, 951 F.3d 960 (8th Cir. 2020) (rejects automatic notice/continuance rule; Form I-589 and statutes give sufficient notice)
- Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005) (without credible testimony, no basis for asylum/withholding/CAT relief)