Luis Ayala-Osegueda v. Merrick GarlandLuis Ayala-Osegueda v. Merrick Garland
Argued: October 26, 2023
Decided: February 1, 2024
Before NIEMEYER, QUATTLEBAUM, and RUSHING, Circuit Judges.
Petition for review denied by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Niemeyer and Judge Rushing joined.
ARGUED: James Doyle Brousseau, BROUSSEAU & LEE, PLLC, Falls Church, Virginia, for Petitioners. Remi da Rocha-Afodu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Dawn S. Conrad, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
QUATTLEBAUM, Circuit Judge:
Luis Alonso Ayala-Osegueda and Sandra Liseth Martinez-De Ayala, along with their minor son, D.E.A.M., all natives and citizens of El Salvador, claim they were threatened and harmed by local MS-13 gang members because their relative, Guadalupe Osegueda, broke up with the gang‘s leader, Franscisco Javier Sarabia. They also insist they will be harmed for that same reason if returned to El Salvador. As a result, they petition for review of an order of the Board of Immigration Appeals upholding the Immigration Judge‘s (“IJ‘s“) oral decision denying their applications for asylum and withholding of removal.
The petition involves two central issues. First, it challenges the IJ‘s mixed credibility finding. Petitioners argue the IJ‘s adverse credibility finding was not sufficiently explicit under
Having considered the arguments presented and reviewed the record, we conclude that the Board did not err and that substantial evidence supports the denial of relief. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Accordingly, we deny the petition for review.
I.
Before delving into the particulars of this petition, we begin with the legal background behind petitioners’ claims. To qualify for asylum under the Immigration and Nationality Act (“INA“), petitioners had the burden of showing they are “refugee[s].”
Petitioners faced an even higher burden of proof “to qualify for withholding of removal to a particular country under the INA.” Dankam v. Gonzales, 495 F.3d 113, 115 (4th Cir. 2007). Applicants have the burden of showing “a clear probability of persecution’ on account of a protected ground.” Id. (quoting INS v. Stevic, 467 U.S. 407, 430 (1984)). If they meet this heightened burden, withholding of removal is mandatory. Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011). “But because the standard for withholding of removal is higher than the standard for asylum, if applicants cannot demonstrate asylum eligibility, their applications for withholding of removal will necessarily fail as well.” Id.
Because the burden to prove both asylum and withholding of removal lies with petitioners, “the credibility of [their] testimony is often paramount.” Herrera-Alcala v. Garland, 39 F.4th 233, 245 (4th Cir. 2022). “The testimony of the applicant may be sufficient to sustain the applicant‘s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant‘s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.”
“There is no presumption of credibility” in proceedings before the IJ,
II.
With that backgrоund in mind, we turn to the details of petitioners’ claims. Petitioners entered the United States without inspection near Hidalgo, Texas, around November 30, 2016. Ten months later, they filed separate applications seeking asylum, withholding of removal and protection under the Convention Against Torture (“CAT“).1 The applications were later consolidated.
Ms. Martinez-De Ayala testified first. She stated that she had been threatened in El Salvador by MS-13. In particular, she said Francisco had extorted her family through three anonymous letters left under the door of a fast-food business the family started in April 2016. According to Ms. Martinez-De Ayala, the letters contained demands for money and threats to kill the family if they did not comply. She testified that she threw the letters away and did not retain copies. Ms. Martinez-De Ayala also claimed that Francisco continues to extort Blanca. In fact, Ms. Martinez-De Ayala said that the whole family would be killed by Francisco immediately upon return to El Salvador.
On cross-examination, however, Ms. Martinez-De Ayala conceded that neither Francisco nor his associates have ever stated that they sent the letters. And none of the letters identified that they were from Francisco or his associates. Instead, she assumed the letters came from Francisco and the gang because “they [were] the only ones in town.” J.A. 145. She also conceded that the letters were delivered only after they opened the fast-food restaurant in April 2016, seven years after Guadalupe‘s purported breakup with Francisco.
Ms. Martinez-De Ayala was also questioned about affidavits that she and her husband submitted twelve days before their hearing. In those affidavits, bоth adult petitioners told a different story about what happened to Guadalupe. They stated that “[t]he family is not sure where [Guadalupe] currently is,” J.A. 179, “[t]he family always believe[d] that she has been taken by MS-13 gang members,” J.A. 179, and that “no one knows where she went. She just disappeared. She may have been taken by the gang members,” J.A. 181. But at their hearing, petitioners admitted that Guadalupe lived in Virginia—indeed, in the same town as petitioners. When cross-examined on this point, Ms. Martinez-De Ayala said, “Maybe [the statements in the affidavits were] a mistake.” J.A. 146.
Finally, Ms. Martinez-De Ayala testified that her husband had been attacked by four unknown assailants shortly before the family left El Salvador in November 2016. When cross-examined on her statement in her affidavit thаt the attack instead occurred in October 2016, the IJ “advise[d] [her] not to look at the other witness in this case for assurance.” J.A. 147. The IJ then turned to Mr. Ayala-Osegueda, and stated, “And you too, sir. I see you nodding back and forth to the respondent. That is disfavored by this court. You cannot communicate with the witness on the witness stand. It does affect the court‘s assessment of the credibility in this case.” J.A. 147.
After that, Mr. Ayala-Osegueda testified. He first stated that he was attacked by four people on his way to work in October 2016. The attackers told him that if he “did not pay what they were asking
After the hearing, the IJ denied all of petitioners’ claims. First, the IJ found petitioners’ testimony that Guadalupe‘s relationship led to retaliation not credible. Because of its importance to our analysis, we quote the IJ‘s entire discussion of this issue:
After careful examination of the record of evidence and considering the totality of the circumstances and all relevant factors, the court makes a mixed finding on credibility here today.
The court is mindful and concerned about the issues raised by the government in this case—specifically the very many material inconsistencies between testimony under oath here today and statements made in the respondents’ affidavits. There are very distinct discrepancies between about what happened to their niece or sister-in-law, Guadalupe, and, significantly, the whereabouts of Guadalupe. The written affidavits, which were tendered a couple of weeks ago, said that nobody knew where she was, and people suspected that she was taken away by gang members. That is untrue. Guadalupe apparently left for the United States some time ago and has been known to be in Virginia for some time. The respondent has been in touch with Guadalupe on more than one оccasion since she‘s been in the United States. And both the respondents and their niece, Guadalupe, live in the same city, in Sterling, Virginia. The court is gravely concerned about the discrepancy on that particular fact as, if it was true that Guadalupe was missing at the hands of the gang, it creates a very different scenario. And the court finds in this case that there was an attempt to deceive the court in terms of what actually happened to the niece, and that she is alive and well. As will be noted momentarily, it‘s also significant to the court that Guadalupe did not offer anything material to the court to corroborate the accounts of either
of the respondents when she is present in the United Statеs, in Sterling, Virginia, and in contact with the respondents. Both of the respondents perpetuated this falsity in their written affidavits, and it gravely affects the level of weight that the court will afford to the respondents’ testimony in this case. The court noted during the course testimony that the respondents were communicating during testimony, one signaling the other that a date was correct or that it should be changed. Having made all those findings and recognizing that the weight of the respondents’ testimony is minimal in this case, the court will decline to make a completely adverse credibility finding in this case.
J.A. 61-62.
The IJ then noted the lack of corroborative evidence. Particularly striking to the IJ was petitioners’ lack of evidence from Guadalupе, “whose relationship with the gang member was presented as central to their claim,” the absence of “medical evidence or photographs” concerning Mr. Ayala-Osegueda‘s injuries from the attack and the failure of petitioners to produce “copies of the notes” documenting any threats received. J.A. 62.
The IJ found that petitioners had not met their burden to seek protection based on membership in a particular social group (“PSG“). Mr. Ayala-Osegueda argued two
between the alleged harm and a protected ground.” J.A. 63. Instead, the IJ found, based on all the credible evidence, that petitioners were targeted because of monetary motivations. Therefore, the IJ found that petitioners were not entitled to a rebuttable presumption of a well-founded fear of future persecution.
The IJ also found that petitioners had not shown a well-founded fear of future persecution. Beyond showing a “subjectively genuine fear,” the court noted that Blanca—Luis‘s mother—still lived in El Salvadоr, unharmed. J.A. 64. Because there was no evidence to show they met the burden for asylum, the IJ also found that petitioners failed to demonstrate their eligibility for withholding of removal—an even higher evidentiary burden.4
Following petitioners’ timely appeal, the Board adopted and affirmed the IJ‘s denial of the requested relief. First, the Board affirmed the IJ‘s “determination that the respondents have not established a nexus between any past or feared future harm and a protected ground.” J.A. 3. The Board held that petitioners identified no clear error of fact with the IJ‘s decision, and made no argument on appeal that would disturb the IJ‘s denial of relief.
Next, the Board rejected petitioners’ argument that the IJ was unclеar in its credibility finding as the IJ “provided specific reasons for [its] mixed finding on credibility.” J.A. 4. The Board noted that the IJ was concerned about “material inconsistencies” in testimony and affidavits. J.A. 4. In particular, the Board recognized that the IJ was concerned with several discrepancies as it relates to Guadalupe. The Board also noted the IJ‘s concerns over conflicting testimony about Guadalupe‘s whereabouts and that there had been an attempt to deceive the court. On top of a “lack of corroborating evidence,” the Board also recognized the IJ‘s note that “the adult respondents were attempting to communicate by signaling with each other.”
As a result, the Board dismissed the appeal.
III.
In seeking our review of the Board‘s decision, petitioners make two main arguments. First, they challenge the IJ‘s “mixed credibility finding.” According to petitioners, the IJ‘s credibility finding was not “explicit” as required by
A.
1.
The issue of whether the IJ “explicitly made” an “adverse credibility determination” under
We have no binding authority on what an IJ must say to explicitly make an adverse credibility finding.6 And recently, the Supreme Court left “for another day the question [of] what the factfinder must say or do to furnish an explici[t] adverse credibility determination.” Ming Dai, 141 S. Ct. at 1679 (internal quotation marks omitted).
To consider petitioners’ argument that the IJ here failed to make the required explicit finding, therefore, we begin with the text of the relevant statutory provisions. “There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.”
Not searching the decision for any magic words, we look instead to the substance of what the IJ said. Up front, the IJ said, “the court makes a mixed finding on credibility today.” J.A. 61. There is nothing equivocal about that language. Through that statement, the IJ fully and clearly expressed its finding, without vagueness, implication or ambiguity.7 That alone satisfies the statutory requirement of an explicit credibility determination.
And as to exactly what was found incredible, the IJ‘s description of the scope of and reasons for the determination was likewise sufficiently clear. When reviewing the testimony concerning Guadalupe, the IJ found “very distinct discrepancies” between testimony and “untrue” written affidavits, had “grave[] сoncern[s] about the discrepancy” and determined there had been “an attempt to deceive the court” and to “perpetuate[] falsity in their written affidavits.” J.A. 61–62. It is hard to imagine an IJ using more determinative language than classifying testimony as “untrue,” a “falsity” or “an attempt to deceive the court.” J.A. 61–62.
The IJ “explicitly made” an adverse credibility finding about petitioners’ testimony on retaliation stemming from Guadalupe‘s breakup with Franscisco. So, we reject petitioners’ claim that the IJ‘s mixed adverse credibility finding was not explicit.
2.
Petitioners lodge a second complaint about the IJ‘s mixed credibility finding. They insist a mixed finding is inherently improper. According to petitioners, credibility is an all or nothing concept, to be applied wholesale to the applicant‘s entire testimony. See Op. Br. 23 (“[A]n applicant‘s testimony is either credible or is not credible.“); see also Op. Br. 21 (“[A]n IJ has only three options when it comes to a credibility determination: (1) make an explicit adverse credibility determination[;] (2) make an explicit determination that the applicant is credible; or (3) make no explicit credibility determination at all, in which case the applicant is afforded a rebuttable presumption of credibility on appeal[.]” (internal quotation marks omitted)).
The statutes do not support this view. Nothing in the statutes prohibits a mixed credibility finding—deeming an applicant‘s testimony credible as to one subject but not another. Indeed, although we have not directly expressed approval, we have acknowledged IJ decisions that have done just that, without correction. See Cordova v. Holder, 759 F.3d 332, 336 (4th Cir. 2014) (“The IJ found Aquino‘s
Along with lacking support in the statutory language, prohibiting a mixed credibility finding would uniquely limit IJs unlike other factfinders. In courtrooms across the country, triers of fact can and regularly do find parts of testimony credible and оther parts incredible. Indeed, federal courts typically instruct juries that they may do just that. See 3 Fed. Jury Prac. & Instr. § 101:43 (6th ed.) (“In deciding the facts, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, part of it, or none of it.“). We see no reason to treat IJs differently.
And imagine if we adopted petitioners’ argument. If an IJ found part of a petitioner‘s testimony credible but part not, what is the IJ supposed to do? Declare all of the testimony incredible even though only some of it was or declare it all credible even though some was not? Petitioners’ proposed rule would force a blanket determination at odds with the way the IJ actually viewed thе testimony.8
Indeed, the Supreme Court‘s recent Ming Dai decision found no reason to treat the agency factfinders differently from any other reasonable factfinder. In discussing the Board‘s authority, the Court stated that an “agency, like any reasonable factfinder, is free to credit part of [a] witness’ testimony without necessarily accepting all of it. It does not matter whether the agency accepts all, none, or some of the alien‘s testimony; its reasonable findings may not be disturbed.” Ming Dai, 141 S. Ct. at 1677 (internal quotation marks and citations omitted).
Thus, an IJ may make a partial or mixed adverse credibility determination so long as substantial evidence supports it. See Paul v. Gonzales, 444 F.3d 148, 154–57 (2d Cir. 2006) (reviewing a “bifurcated” or “mixed” credibility finding where the IJ believed some aspects of the alien‘s claim but not others). An IJ is not bound to make its adverse credibility determination wholesale, for the alien‘s entire testimony.
Here, the IJ properly made a “mixed” finding about credibility. After finding the testimony about retaliation due to Guadalupe‘s breakup incredible, the IJ nevertheless “decline[d] to make a completely adverse credibility finding.” J.A. 62. That suggests the IJ found the remaining parts of petitioners’ testimony credible. And on appeal, there is no indication the Board did not apply a presumption of credibility to such other testimony, as it must. It certainly reviewed in detail the reasons why no presumption of credibility applied to petitioners’ testimony concerning retaliation following Guadalupe‘s breakup with Francisco.
3.
Last, it is important to clarify what applying the presumption of credibility means and what it does not mean. Just because testimony is presumed credible does not mean that the Board must accept
That is what happened here. Even accepting petitioners’ belief that they suffered past persecution on account of their relationship to Guadalupe, the Board affirmed the IJ‘s rejection of that position. The Board held that petitioners “have not established a nexus between any past or feared future harm and a protected ground.” J.A. 3. As result, petitioners’ argument about the IJ‘s explicit adverse credibility determinаtion and credibility presumption on appeal fails.10
Suppose a plaintiff is doing her best to recount a car accident to prove her case for damages. She testifies earnestly that she thought the traffic light was green when she entered an intersection. The plaintiff says she was then broadsided by the defendant who was traveling on a cross street and ran a red light. Later in the proceedings, however, the defendant presents video footage and the testimony of other witnesses, all of which show that it was really the plaintiff who drove through a red light and the defendant who had the right of way. It‘s easy enough to imagine that a factfinder might not describe the plaintiff as lacking credibility—in the sense that she was lying or not “worthy of belief,” Black‘s Law Dictionary 448 (10th ed. 2014) (defining “credibility“)—yet find that her testimony on a key fact was outweighed by other evidence and thus unpersuasive or insufficient to prove the defendant‘s liability.
B.
Petitioners also challenge the factual determination that they were
After finding petitioners’ family-based PSGs cognizable, the IJ found that petitioners failed to establish a nexus between their PSGs and the persecution they suffered. Relying on “all of the facts and credible evidence,” the IJ ruled that petitiоners were targeted by unknown individuals who sought money from their business and family. J.A. 63. And, as already noted, the Board affirmed the IJ‘s determination that petitioners did not establish a nexus.
According to petitioners, a reasonable adjudicator would be compelled to disagree because there were “multiple intertwined reasons why the MS-13 began threatening Petitioners,” including family ties, and not just the “immediate trigger” of getting money. Op. Br. 37. In particular, petitioners argue that the IJ‘s finding—that the central motivation behind the alleged harm to petitioners was pecuniary and not due to Guadalupe breaking up with Francisco—is not supported by substantial evidence.
But this argument fails because petitioners have not shown that reversal is compelled based on the record. We review a BIA decision based on a factual determination for substantial evidence. Dankam v. Gonzales, 495 F.3d 113, 119 (4th Cir. 2007). Under this “highly deferential” standard of review, Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020), we must look only to the administrative record “on which the order of removal is based” and consider the findings of fact “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
Take Ms. Martinez-De Ayala‘s testimony on the extortionary letters. She testified that the letters were anonymous and that she merely “suspect[ed]” that they were from Francisco and the gang. J.A. 144. But neither Francisco nor his associates ever stated that they were the ones behind the letters, and the anonymous writers never identified themselves as gang members. One thing the letter writers did say, however, is that “they wanted money.” J.A. 150.
And regarding the attack by the unknown assailants, Mr. Ayala-Osegueda testified that he had thought that they attacked him because he owned a restaurant. And because the attack happened on his way to work at the fast-food business, Mr. Ayala-Osegueda аgreed that it would be fair to say that the assailants might have thought he had cash on hand. This evidence accords with Mr. Ayala-Osegueda‘s asylum application, see J.A. 234 (“I believe they targeted me because I owned a business and had money.“), and Ms. Martinez De-Ayala‘s application, see J.A. 328 (“I owned a small fast food stand since April 2016 so therefore they though [sic] I had money, which is why they targeted me.“).
Next, consider the timing with respect to the extortionary notes and attack. While Ms. Martinez De-Ayala testified that the alleged relationship between Francisco and
Finally, some of the PSGs articulated by petitioners’ counsel at the hearing imply that petitioners were persecuted because of a pecuniary motivation. There, counsel asserted that Ms. Martinez De-Ayala sought protection under the INA based on membership in a PSG defined as “small business owner” and “fast food business owner in El Salvador,” while Mr. Ayala-Osegueda sought protection based on membership in a PSG defined as “Salvadorian who own[s] a fast food restaurant.” J.A. 140–41. Persecution in the form of extortion due to ownership of a business appears to be a concession that petitioners were being targeted for pecuniary reasons.
The record evidence does not compel a ruling contrary to the administrative factual finding that petitioners were targeted for pecuniary reasons. In fact, besides their subjective belief, petitioners point to no evidence that Guadalupe‘s breakup with Francisco was a reason for the harms they suffered. Petitioners’ claim of “multiple intertwined reasons” was therefore appropriately considered and rejected by the IJ for specific and cogent reasons. A reasonable adjudicator would not be compelled to conclude otherwise. Despite the difficult circumstances that impelled petitioners to flee El Salvador, substantial evidence supports the Board‘s conclusion that they were not persecuted on account of their family-based PSG. Thus, we deny the petition for review on this ground.11
IV.
For the reasons discussed above, we deny the petition for review of the Board‘s decision.
PETITION DENIED