Silvia Moreno GARCIA; Claudia Moreno GARCIA, Petitioners v. ATTORNEY GENERAL of the UNITED STATES, Respondent.
No. 10-1311
United States Court of Appeals, Third Circuit
Nov. 28, 2011
Yedidya Cohen [Argued], Eric H. Holder, Jr., Kate D. Balaban, David V. Bernal, Susan K. Houser, Thomas W. Hussey, Gary J. Newkirk, Anthony C. Payne, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.
Before: HARDIMAN and ALDISERT, Circuit Judges and RESTANI*, Judge.
*OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Claudia Moreno Garcia (Claudia) and Silvia Moreno Garcia (Silvia) petition for review of an order of the Board of Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ) rejecting their applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Although we find sufficient merit in Silvia‘s petition to order a remand, we will deny Claudia‘s petition.
I1
Claudia was born on October 31, 1977, in Guatemala City, Guatemala. In late December 1998 or early January 1999, Claudia illegally entered the United States at
A little over a year after Silvia entered the United States, the Department of Homeland Security served Claudia and Silvia with separate Notices to Appear, charging removability under the Immigration and Nationality Act (INA),
Although the sisters’ affidavits and testimony before the IJ indicate that their respective problems with Valle del Sol were distinct, both traced their problems with the gang back to their cousin, Hilda Marleny Sosa del Cid (Hilda). In 1986, shortly after Claudia and Silvia‘s father died, their mother moved to the United States, leaving her daughters with her sister Gloria. Hilda, who is one of Gloria‘s five children, is roughly the same age as Claudia. The sisters’ living situation with their aunt Gloria and cousin Hilda was not ideal. Gloria withheld the money that Claudia and Silvia‘s mother sent them from the United States, and Hilda was violent and associated with gang members, one of whom, Jorge Solis Mexicanos, became her husband. Mexicanos was a career criminal and a leader of Valle del Sol.
II
A
We first consider Silvia‘s petition for review because it presents a closer question than Claudia‘s petition. In the summer of 2003, Hilda used Silvia‘s home telephone to help Valle del Sol assassinate a prominent human rights activist named Jose Lopez-Lopez. After the murder was accomplished, Hilda told Silvia that gang members Juan Carlos Munoz Castillo (aka “Topacio“) and Dennis Marroquin participated in the crime and warned Silvia that she would be killed if she helped the authorities find Lopez-Lopez‘s killers. Silvia‘s safety concerns were exacerbated by the fact that she was pregnant at the time and also looking after her younger sister, Danay.
On August 14, 2003, the investigation of Lopez-Lopez‘s murder led police to Silvia, who refused to cooperate even after several hours of interrogation. At the end of their questioning, the police left, telling Silvia they would return the following day. Silvia then received a telephone call from an unknown woman who told her that Hilda was concerned that Silvia would report her to the police. The woman then requested a meeting with Silvia in a park. Silvia declined the invitation and went to stay with a friend instead.
The following day, Silvia met police officers at a church. She and the officers then traveled to a restaurant where they discussed the evidence against her (i.e., the fact that a phone call that led to Lopez-Lopez‘s murder came from her house). The police threatened to arrest Silvia, but she refused to disclose any information. After leaving the restaurant, however, Silvia learned that her house had been ransacked. Too frightened to return home, Silvia fled to her grandfather‘s house but was turned away because her relatives
When Silvia called the lawyer, he told her there was nothing he could do and it was unlikely any lawyer would take her case. He explained that Silvia had two options: side with the authorities or with Valle del Sol. That day, Silvia contacted officials from Guatemala‘s Public Ministry and arranged a meeting at a restaurant. Officers transported her from the restaurant to another building where, for the first time, Silvia agreed to give a statement implicating Hilda, Topacio, and Marroquin. In return for her assistance with the prosecution, the Public Ministry officials agreed to place Silvia and her sister Danay in witness protection until Silvia testified and then relocate them to another country.
While in witness protection, Silvia and Danay were protected around the clock by armed security teams. In addition, they were moved from hotel to hotel as many as twelve times in three months because of potential security breaches. At various times prior to trial, security personnel were forced to transport Silvia and Danay in armored cars, strictly control their food, keep them away from windows, and arrange for a special trip to the hospital to address a problem with Silvia‘s pregnancy.2
Silvia claimed that despite these security precautions, Hilda threatened her over the phone. Silvia also learned that Marroquin had evaded trial and disappeared, and that Hilda‘s brother, Henry Sosa, was threatening Claudia and her mother in the United States.
Silvia appeared in court twice in October 2003. The first time, she did not testify because the defendants, Hilda and Topacio, were not given proper notice. Two weeks later, Silvia testified under oath outside the presence of the defendants while wearing a disguise and a bulletproof vest. Notwithstanding these precautions, Silvia received a phone call from an unknown individual who said that Silvia was being watched during her first court appearance and that if she testified, she and Danay would be killed. The caller also mentioned that Henry Sosa knew where her mother and Claudia were living in the United States.
A little over a month after Silvia testified, she and Danay were relocated to Mexico, where the Guatemalan and Mexican governments, along with the United Nations and other international organizations, arranged for them to register as refugees. In Mexico City, Silvia and Danay met with representatives from Mexico‘s refugee commission, the Comision Mexicana de Ayuda a Refugiados (COMAR), as well as two non-governmental organizations and the United Nations. They were taken to a hotel, and Guatemalan officials remained in Mexico City to assist in their transition.
Approximately two months later, in February 2004, Silvia and Danay were granted refugee status in Mexico, which permitted them to remain in the country as long as they renewed their status annually. According to Silvia, however, the threats persisted. In the spring of 2004, Silvia saw Dennis Marroquin on the subway. After
In September 2005, Danay and Silvia‘s relationship fractured, and Danay left Mexico for the United States. Silvia claimed that for the rest of her time in Mexico, she was discriminated against and treated poorly because of her refugee status, which made it difficult to find a job. Consequently, she decided to move to Tijuana, Mexico, so she could enter the United States. Once in the United States, Silvia moved to New Jersey where she lived with her mother and Claudia.
Silvia testified before the IJ that Henry Sosa called her in the United States and told her to recant her testimony. Silvia refused to do so, and Hilda was convicted. Silvia also testified that she later saw Sosa on the street in New Jersey and that he began calling her house, telling her Hilda would soon get out of prison and implying that some harm would befall Silvia once Hilda was released. Silvia also testified that Hilda has been released from prison and unsuccessfully attempted to enter the United States.
B
The IJ issued an oral decision denying Silvia‘s application, finding that she was barred from receiving asylum because she had firmly resettled in Mexico before entering the United States. Oral Decision of the IJ, Garcia & Garcia, File Nos. A094783360 & A094783359, at 18-19 (June 2, 2008) (IJ Dec). The IJ also determined that although there was “a plethora of documentation about Silvia‘s testimony, [and] Silvia‘s assistance in the prosecution against Hilda,” she was not eligible for asylum or withholding of removal because any persecution she might face is not on account of her membership in a cognizable “particular social group” (i.e., individuals who testify against gang members). Id.3 The IJ noted that there was no corroborating evidence regarding Sosa or the threat he might present in the future, and that even if Sosa might look to harm Silvia, the Guatemalan government had shown it was willing and able to protect her. Id. at 19-21. Finally, the IJ rejected her CAT claim citing a lack of evidence that the Guatemalan government would acquiesce in, or turn a blind eye to, her torture. Id. at 21.
Silvia appealed, and the BIA issued an opinion affirming the IJ‘s decision. The BIA relied primarily on two of the IJ‘s findings: (1) “that Silvia did not demonstrate an objectively reasonable fear of future persecution in Guatemala because she did not show that she is unable or unwilling to avail herself of the protection of the Guatemalan government;” and (2) “that the Guatemalan government is willing to protect Silvia such that she cannot be considered a ‘refugee’ within the meaning of the [INA].” Decision of the BIA, File Nos. A094783360 & A094783359, at 2 (Dec. 31, 2009) (BIA Dec.) (citing
C
“We exercise de novo review over constitutional claims or questions of law and the application of law to facts.” Yusupov v. Att‘y Gen., 518 F.3d 185, 197 (3d Cir. 2008) (citations omitted) (internal quotation marks omitted). The IJ‘s factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
When the BIA adopts or defers to the underlying decision of the IJ, we review the IJ‘s opinion as the decision of the agency. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir. 2001). As the Government argues, however, “review of the immigration judge‘s decision would be proper in this case ... only to the extent affirmed or incorporated by the Board.” Appellee‘s Br. at 21 n.3 (citing Sheriff v. Att‘y Gen., 587 F.3d 584, 588 (3d Cir. 2009)). In this case, the BIA agreed with several of the IJ‘s findings but did not adopt all of them. Accordingly, we may affirm the BIA‘s decision only if we find that its stated reasons are correct, as it was the BIA—not the IJ—that provided the final and authoritative “grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Li v. Att‘y Gen., 400 F.3d 157, 163 (3d Cir. 2005) (reviewing only BIA‘s finding that “assuming [petitioner] was credible, he failed to establish past persecution,” not IJ‘s adverse credibility determination, because BIA did not adopt credibility finding); cf. Dia v. Ashcroft, 353 F.3d 228, 241 (3d Cir. 2003) (holding that under Chenery, when the BIA affirms the IJ without opinion, we review the IJ‘s opinion as “the grounds invoked by the agency“).
D
1
With the aforementioned standards in mind, we turn to Silvia‘s petition for review. We begin by noting that Silvia did not argue in her opening brief that the BIA erred in denying her CAT claim, so that issue is waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir. 2005) (citing Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (“When an issue is either not set forth in the statement of issues presented or not pursued in the argument section of the brief, the appellant has abandoned and waived that issue on appeal.“)). Thus we review only Silvia‘s requests for asylum and withholding of removal.
Whereas an application for withholding of removal requires a showing that there is a “clear probability” of persecution
2
The Government argues that Silvia did not establish her “[inability] or unwill-ing[ness] to avail herself of the protection of the Guatemalan government.” Our review of the record compels us to disagree.
The parties agree that Silvia‘s conflict with Hilda and Valle del Sol began when she initially decided to assist the Guatemalan government and seek its protection—a decision that left her and her sister Danay under armed guard, moving from hotel to hotel each time there was a feared security breach. Ultimately, the Guatemalan authorities took the drastic measure of working with the Mexican government, the United Nations, and several international organizations to obtain refugee status for Silvia and Danay in Mexico. These extraordinary measures demonstrate that the Guatemalan government believed there was a “reasonable possibility” Silvia would be persecuted if she remained in Guatemala. For that reason, we find no support for the BIA‘s finding that Silvia does not have a reasonable fear of persecution if she is returned there.
Although the Guatemalan government displayed great willingness to protect Silvia before and after her testimony in the Lopez-Lopez murder trial, this willingness sheds no light on Guatemala‘s ability to protect her. The fact that Guatemala saw fit to relocate Silvia to Mexico is tantamount to an admission that it could not protect her in Guatemala. Guatemala‘s decision to move Silvia may have prevented future harm, but it does not constitute “protection” in the same way that a government‘s law enforcement apparatus protects its people by maintaining a state of law and order. There is nothing in the record to suggest that Guatemala will be any better able to protect Silvia if she is returned there now. We see no reason to doubt, then, that Silvia fears retaliation from the same individuals and organization that the Guatemalan government could not control eight years ago. Accordingly, the BIA‘s finding that she has failed to meet this element is not supported by substantial evidence.
The BIA‘s alternative holding—that any persecution Silvia might face in Guatemala would not be based on her membership in a “particular social group“—also is not supported by substantial evidence. In Fatin v. INS, 12 F.3d 1233, 1239-40 (3d Cir. 1993), we adopted the interpretation of “particular social group” that the BIA announced in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985).
[A] group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. [T]he common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.
19 I. & N. Dec. at 233. The parties agree that Silvia testified against Hilda and other members of Valle del Sol. She therefore shares a “common, immutable characteristic” with other civilian witnesses who have the “shared past experience” of assisting law enforcement against violent gangs that threaten communities in Guatemala. It is a characteristic that members cannot change because it is based on past conduct that cannot be undone. To the extent that members of this group can recant their testimony, they “should not be required to” do so.5
The BIA has not yet addressed several other elements of Silvia‘s application for asylum and withholding of removal—including whether the harm she might face in Guatemala rises to the level of persecution, whether there would be a nexus between any persecution and her membership in a particular social group, and whether she was “firmly resettled” in Mexico such that she is barred from receiving asylum under
III
Unlike Silvia, Claudia‘s interactions with Valle del Sol were quite limited, she never testified against Hilda or any of Hilda‘s associates, and she never requested protection from the Guatemalan government. Claudia‘s claim is based on her belief that she will be persecuted either because she is Silvia‘s sister or because she became friendly with Hilda in 1998 and learned about Valle del Sol activities, but then rejected what she perceived to be attempts at recruitment into the gang. Like Silvia, Claudia claimed that Hilda and Henry Sosa found her and her mother living in New Jersey and threatened them in person and by telephone. Claudia also alleged that Hilda has since been released from prison and tried to enter the United States, but she was turned away at the border.
The IJ found, and the BIA agreed, that Claudia‘s asylum application was time-barred and that, in any event, she was
To qualify for withholding of removal under the INA, an alien must show either (1) that she has suffered past persecution in the country of removal “on account of race, religion, nationality, membership in a particular social group, or political opinion,” in which case, a rebuttable presumption of future persecution applies; or (2) that she will be persecuted in the country of removal—i.e., there is a “clear probability” that the alien‘s life or freedom would be threatened upon her removal to a particular country, Chen, 434 F.3d at 216 (quoting INS v. Stevic, 467 U.S. 407, 412 (1984)) (citing
Nothing in the record compels us to reach factual findings contrary to those reached by the IJ in respect to Claudia‘s case. Claudia admitted during her testimony that she never personally contacted law enforcement in Guatemala about her interactions with Hilda and Valle del Sol, and although she may have been understandably fearful while she was living in Guatemala, there is nothing in the record to support a finding that she was ever persecuted in the past. Claudia must therefore show a clear probability of future persecution, which she cannot do in light of the IJ‘s finding that Claudia and Silvia failed to corroborate their testimony about threats Claudia allegedly received after she entered the United States. There is no reason for us to upset the IJ‘s determination that such corroboration could reasonably be expected and that Claudia and Silvia did not adequately explain its absence. See Abdulai, 239 F.3d at 554 (announcing three-part inquiry for whether an application may be denied based on a failure to corroborate). On this record, we agree with the BIA that Claudia failed to meet her burden of showing it is more likely than not that she will face persecution in Guatemala. We will therefore deny Claudia‘s petition for review.
IV
For the reasons stated, we will deny Claudia‘s petition for review, grant Silvia‘s petition for review, and remand Silvia‘s case to the BIA for proceedings consistent with this opinion.