NINONSKA SUATE-ORELLANA, also known as NINOSKA SUATE-ORELLANA, Petitioner, versus WILLIAM P. BARR, U.S. Attorney General, Respondent.
No. 19-60729
United States Court of Appeals for the Fifth Circuit
November 3, 2020
Petition for Review of an Order of the Board of Immigration Appeals BIA No. A200 965 308
Before JONES, HAYNES, and HO, Circuit Judges.1
Petitioner Ninoska Suate-Orellana asks this court to reverse an unfavorable decision from the Board of Immigration Appeals (the “Board” or “BIA“). Spеcifically, she appeals the Board‘s (1) adverse credibility determination, (2) decision to deny withholding of removal relief, (3) denial of her claim under the Convention Against Torture (“CAT“), and (4) denial of her motion to remand the case for consideration of new evidence. Upon review оf the record, we DENY Suate-Orellana‘s petition for review.
I. BACKGROUND
Suate-Orellana is a Honduran woman. When she was approximately eighteen years old, she was abused by a man named Walter Najera. In 2001, she reported Najera‘s involvement in the killing of a police officer. Although Najera was subsequently imprisoned, Suate-Orellana fled to Mexico because she was afraid “he would find out” that she had reported him and might retaliate. In 2002, Suate-Orellana returned to Honduras and agreed to marry Najera. Najera was released from prison in 2006 and traveled to the United Stаtes where he remains. According to Suate-Orellana, she last spoke to him in 2012 or 2013 when Najera told her that he wanted a divorce so that he could marry his current partner. In 2009, Suate-Orellana began a relationship with a drug dealer named Ramon Ramos. That same year, she fled to Mеxico
In 2011, Suate-Orellana entered the United States but was denied asylum and subsequently deported that same year. Initially, she did not go back to her hometown because she was “afraid of Luis Lopez” and instead lived “in several places” within Honduras. In 2012, Suate-Orellana learned that Lopez had been killed by Rudy Chavez, who was the leader of a gang called “La Rumba.” Chavez attempted to recruit Suate-Orellana аnd threatened her when she refused to join the gang. Chavez was later killed in 2016.
In 2013, a purported hitman for La Rumba called “El Diablo” approached Suate-Orellana at a bar. He told her that he had been hired to kill her, but, after another individual intervened, he told her he would not kill her that night but would kill her if he saw her again. Suate-Orellana left Honduras and, after spending some time in Mexico and “a very short time” hiding with a friend in another city in Honduras, ultimately came to the United States.
In 2014, Suate-Orellana entered the United States, was detained, and completed a reasonable fear interview (“2014 interview“). A merits hearing was held in 2015 (“2015 hearing“) concerning her withholding of removal and CAT claims. The immigration judge (“IJ“) made an adverse credibility determination due to “numerous significant inconsistencies throughout the testimony and previous statements of [Suate-Orellana]” based on “the totality of the cirсumstances.” The IJ also denied Suate-Orellana‘s claims for relief. The Board affirmed the IJ‘s adverse credibility determination and denial of relief based on withholding of removal. But the Board remanded the CAT claim for additional factual development, recognizing that the Board “does nоt engage in factfinding in the course of deciding an appeal.” The IJ engaged in the requisite factfinding and again denied the CAT claim. This time the Board affirmed the IJ decision on appeal. The Board also rejected Suate-Orellana‘s motion to remand the record for consideration of new evidence showing that one of her sons was murdered earlier in the year. Suate-Orellana timely appealed.
II. DISCUSSION
We have jurisdiction to review a final order of removal where, as here, “the alien has exhausted all administrative remedies available to the аlien as of right.”
A. Adverse Credibility Determination
The agency‘s adverse credibility determination is reviewed under the substantial evidence standard and is “conclusive unless any reasonablе adjudicator would be compelled to conclude to the contrary.”
Suate-Orellana contends that her adverse credibility determination was based on several factual errors. Upon review of these purported errors, however, we conclude the Board‘s decision was
Overall, Suate-Orellana‘s arguments regarding the adverse credibility determinatiоn amount to a disagreement with the agency‘s conclusions, but she does not demonstrate “that no reasonable fact-finder could make such an adverse credibility ruling.” Singh, 880 F.3d at 225. Substantial evidence, thus, supports the adverse credibility determination.
B. Withholding of Removal
Having affirmed the adverse credibility determination, wе reach the merits of the withholding of removal and CAT claims only to the extent that other evidence was presented to support those claims. Cf. Chun v. I.N.S., 40 F.3d 76, 79 (5th Cir. 1994) (choosing not to reach the Board‘s alternative arguments because the case turned “purely on the IJ‘s assessment of [the petitioner‘s] credibility“). We review factual determinations for substantial evidence and legal determinations de novo. Ghotra, 912 F.3d at 287-88.
At bottom, we agree with the Board‘s conclusion that Suate-Orellana‘s first proposed social group—Honduran women who have been targeted for and resisted gang reсruitment after the murder of a gang-associated partner—is not cognizable.2 We are not convinced that former partners of gang members are sufficiently distinct from anyone that resists gang recruitment. Thus, we agree it lacks particularity and social distinction. See Orellana-Monson v. Holder, 685 F.3d 511, 522 (5th Cir. 2012) (concluding a similar grоup—men who were recruited but refused to join Mara 18—lacked particularity and social distinction).
We also agree with the Board that Suate-Orellana failed to show her membership in her second proposed social group: Honduran women in domestic relationships who are unable to leave or are viewed as property by virtue of their position in a domestic relationship.3 She has not heard from Najera in many years, and he has requested a divorce so that he can marry his current girlfriend in Los Angeles.4 These facts are dispositive, and the IJ certаinly did not have to discount them based on expert testimony concerning the “effects and cyclical nature of abusive relationships.” The Board‘s decision to deny
C. Convention Against Torture
To establish her CAT claim, Suate-Orellana must show that she is more likely than not to be tortured by or with the acquiescence of the Honduran government if repatriated to Honduras.
Suate-Orellana contends the Board erred by “fail[ing] to meaningfully consider аll of the evidence submitted” that would show she is likely to be tortured upon return to Honduras. We disagree. In fact, the Board previously remanded the case to the IJ with explicit instructions to “consider and make findings on the written evidence in the record, assess whether the evidence corroborates her narrative, and enter a new decision concerning protection under the CAT accordingly.” In a ten-page decision, the IJ did exactly that.
We also find that the Board‘s conclusion that Suate-Orellana did not prove requisite state action is supported by substantial еvidence. The underlying IJ decision engaged in substantive analysis and cited meaningful evidence to support its conclusion. For instance, the IJ observed: (1) evidence police executed raids on La Rumba and captured suspected gang members; (2) evidence Chavez was killed in 2016; and (3) thе promulgation of a presidential decree creating a commission to restructure the Honduran National police.6 The Board‘s conclusion is supported by substantial evidence.
D. Remand to Consider New Evidence
We review denial of a motion to remand “under a highly deferential abuse-of-discretion standаrd.” Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014) (citation omitted). Denial based on an error of law constitutes abuse of discretion, and we review questions of law de novo. Larin-Ulloa v. Gonzales, 462 F.3d 456, 461 (5th Cir. 2006).
“A motion to remand for new evidence shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” Milat, 755 F.3d at 365 (cleaned up). The Board‘s decision will not be disturbed unless it is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id.; see Inestroza-Antonelli v. Barr, 954 F.3d 813, 819 (5th Cir. 2020) (Jones, J., dissenting) (“We do violence to the structure of immigration law when we incorrectly permit cases to be reopened, particularly when the system is being overrun.“). When determining materiality, the Board should consider whether the nеw evidence would likely change the result in the case. See Qorane v. Barr, 919 F.3d 904, 912 (5th Cir. 2019) (concluding that materiality on a motion to reopen “means the evidence must be likely to change the result of the alien‘s underlying
Suate-Orellana claims the Board made an error of law by creating an extra-statutory evidentiary requirement of an eyewitness account to her son‘s murder. The Board made no such across-the-board requirement, so Suate-Orellana‘s attempt to characterize this as an error of law fails. Rather, the Board did not think the new evidence was connected to La Rumba‘s purported interest in Suate-Orellana.
Suate-Orellana also argues that the Board made an error of law by engaging in impermissible factfinding. We disagree. The Board may evaluate new evidence on a motion for remand to assess whether or not that evidence meets the stringent requirements for remand.8 Engaging in this exercise does not constitute an error of law; in fact, some courts have faulted the Board for not analyzing evidence in such motions in sufficient detail. See, e.g., Marqus v. Barr, 968 F.3d 583, 593 (6th Cir. 2020) (criticizing the Board for denying a motion to remand “with little more than a bald statement” and nо “real analysis” of why the evidence was immaterial).
We also conclude that the Board did not abuse its discretion in not remanding the case for consideration of new evidence. The new evidence was similar to evidence already considered and rejected by the IJ, and it suffеred from the same shortcoming by not showing any connection to Suate-
Orellana herself.9 Thus, the Board reasonably concluded that the new evidence was “indicative of the danger the community faces from gang violence” but did not meaningfully impact the CAT analysis for Suate-Orellana. See Milat, 755 F.3d at 365 (considering it rеlevant that new evidence was similar to evidence already considered). The Board did not abuse its discretion in reaching this conclusion.
Suate-Orellana contends that Zhao v. Gonzales should determine the outcome on whether to remand. 404 F.3d at 304-05.10 We find Zhao distinguishable. In that case, the government acted in a “disingenuous” manner by simultaneously arguing that the new evidence presented was “redundant” when comрared to previously considered evidence and then faulting the prior evidence for not containing information that was only contained in the new evidence. Id. at 305. There was no such disingenuous conduct here. In this case, the Board simply recognized that the new evidence was like previous evidence
III. CONCLUSION
Based on the foregoing we DENY the petition for review.