Avelar-Oliva v. Barr
| Decision Date | 03 April 2020 |
| Docket Number | No. 18-60421,18-60421 |
| Parties | Rosa Marisol AVELAR-OLIVA, also known as Rosa Ayelar-Oliva, Petitioner v. William P. BARR, U.S. Attorney General, Respondent |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jennifer Loraine Swize, Alex Potapov, Jones Day, Washington, DC, for Petitioner.
Dawn S. Conrad, Senior Litigation Counsel, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before JOLLY, JONES, and ENGELHARDT, Circuit Judges.
Rosa Marisol Avelar-Oliva, a native and citizen of El Salvador, petitions for review of a final order issued by the Board of Immigration Appeals (BIA). The BIA dismissed her appeal from the order of the Immigration Judge (IJ) denying her claims for asylum, withholding of removal, and Convention Against Torture (CAT) relief. For the following reasons, we DENY the petition for review.
Avelar-Oliva's requests for immigration relief arise from threats she claims to have received, between January 6, 2016 and February 14, 2017, from Rosalio Oliva ("Rosalio"), who she identifies as a police officer and her mother's cousin. Although Avelar-Oliva had not seen Rosalio for several years prior to January 2016, she testified that he had abused her when she was a child. Specifically, Avelar-Oliva testified that, in August 2002, when she was 11 years old, she went to live with Rosalio, his wife, and son because he had promised her mother that he would send her to school and provide for her. Instead, she contends, Rosalio imprisoned her in his house for two years, forcing her to work 16–18 hours a day, depriving her of food, and raping her numerous times. Avelar-Oliva asserts the abuse ended only when she escaped Rosalio's home, in November 2004, to live with her brother. Avelar-Oliva maintains that she never told her brother or mother about Rosalio's abuse because she "was ashamed[,] very embarrassed[,] and did not want to cause further problems."
Two years later, in 2006, Avelar-Oliva, then 15 years old, met and began living with her husband, Jose Miguel Reyna Gutierrez, in La Palma, El Salvador. In 2014, however, less than a year after the birth of their second child, Avelar-Oliva moved to Tejutla, El Salvador, to be closer to her mother. It was there, she contends, in January 2016, that she encountered Rosalio, who wore a police uniform and gun, demanded that she have a sexual relationship with him, and attempted to rape her. She maintains that Rosalio also told her that the police would not help her because he was a police officer. And, thereafter, on three occasions in September 2016, Avelar-Oliva alleges, Rosalio grabbed her by her neck and jaw, asked for sex, and demanded that she be with him and collect rent money for him in the area. During the latter two encounters, Avelar-Oliva contends, Rosalio threatened to hurt her and her family.
Telling her mother only that a police officer had threatened to kill them, Avelar-Oliva, her mother, and her children moved to Caserio San Francisco, El Salvador, in mid-September 2016, in hopes of escape. Her relief was short-lived, she claims, because Rosalio again found her, on February 14, 2017, while she was walking home, and threatened to kill her and her family if she did not do as he wanted. Upon that encounter, Avelar-Oliva told her mother, siblings, and Gutierrez of Rosalio's threats, told Gutierrez that he must hide with their children, and said that she must leave the country to be safe from Rosalio. Thereafter, Gutierrez took their children with him, Avelar-Oliva's mother and siblings moved, and she left El Salvador.
After traveling through Guatemala and Mexico, Avelar-Oliva entered the United States without a valid entry document on May 1, 2017. Shortly thereafter, she was detained by the United States Department of Homeland Security (DHS), which initiated removal proceedings against her. Conceding her inadmissibility, Avelar-Oliva filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In May 2017, an asylum officer, with the assistance of a Spanish speaking interpreter, conducted a telephonic credible fear interview (CFI) of Avelar-Oliva.1
The asylum officer's record from Avelar-Oliva's CFI indicates that, at the conclusion of the interview, Avelar-Oliva confirmed that the asylum officer's summary of her claim was accurate and said that there was nothing she would like to add. The asylum officer asked if there was anything else that she would like to say about her claim that had not yet been discussed; she responded negatively. Finally, the asylum officer asked if Avelar-Oliva understood all the questions; she responded, "Yes." The asylum officer asked if she had any problems understanding the interpreter; she responded, "No." The asylum officer concluded that Avelar-Oliva had a credible fear of persecution.
Following a merits hearing at which Avelar-Oliva and two experts testified, the IJ issued a written decision, finding Avelar-Oliva not credible, "[a]fter considering the totality of the circumstances, especially given the lack of corroborating evidence and [ ] multiple inconsistencies," and denied her requests for relief. The IJ's decision additionally characterizes certain testimony by Avelar-Oliva as implausible, particularly regarding her allegations that she suffered two years of physical and sexual abuse from Rosalio without exhibiting visible signs of injury, or evident emotional distress, such that no one was ever aware of her suffering. The information considered by the IJ was taken from the notes of the CFI, the affidavit that Avelar-Oliva had submitted with her applications for relief, Avelar-Oliva's testimony at the merits hearing, and an affidavit provided by Gutierrez. The IJ's adverse credibility determination prevented Avelar-Oliva from satisfying her burden of establishing eligibility for asylum, withholding of removal, and protection under the CAT.
On appeal, the BIA affirmed, relying on the multiple inconsistencies identified by the IJ, and finding no "clear error" in the IJ's "adverse credibility" determination. The BIA likewise found the CFI sufficiently reliable, with questions that were not "too vague." Finding no clear error based on the identified inconsistencies, the BIA eschewed any need to rely on the "multiple implausibilities" also found by the IJ, which amici curiae argued, on appeal, reflected a misunderstanding of gender-based violence and sexual abuse. Instead, the BIA relied only on the following: (1) Avelar-Oliva testified that she was never bruised when she was attacked by Rosalio, but told the asylum officer during her CFI that she sustained bruises on two occasions; (2) Avelar-Oliva testified that she was never harmed in front of her family members, but told the asylum officer during her CFI that Rosalio had grabbed and threatened her in front of her mother and children; (3) Avelar-Oliva testified that Rosalio sexually abused her as a child, but had not mentioned this abuse during her CFI; and (4) Avelar-Oliva testified that she did not tell Gutierrez that Rosalio was harassing her until 2017, whereas Gutierrez's affidavit stated that Avelar-Oliva had told him about the abuse in 2016.
The BIA further concluded that there was insufficient support for Avelar-Oliva's contentions that these inconsistencies resulted from a misinterpretation of her testimony during her CFI, a failure of the asylum officer to ask a specific question regarding past abuse, and an inference by Gutierrez, in 2016, from his general knowledge of threats being made by an unidentified police officer. The BIA also agreed with the IJ's determination that Avelar-Oliva "did not submit sufficient corroborating evidence to rehabilitate her incredible testimony," noting that Avelar-Oliva's expert witnesses' testimony were general in nature and that Avelar-Oliva had not submitted a corroborating statement from her mother or brother.
The BIA additionally concluded that the IJ did not clearly err, relative to Avelar-Oliva's claim under the CAT, in finding Avelar-Oliva had not demonstrated a likelihood of being tortured upon her return to El Salvador. Lastly, to the extent that Avelar-Oliva and amici curiae sought to submit new evidence on appeal, the BIA reasoned that it was precluded from engaging in factfinding when deciding appeals. It likewise concluded remand was not warranted because Avelar-Oliva and amici curiae had not established that proposed new evidence would alter the outcome of the case. Following the issuance of the BIA's May 7, 2018 opinion, Avelar-Oliva filed her petition with this court.
We review an immigration court's factual findings for substantial evidence and conclusions of law de novo. Orellana-Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). To the extent that the BIA relied upon the IJ's rulings, we may consider the decisions of both the BIA and the IJ. Theodros v. Gonzales , 490 F.3d 396, 400 (5th Cir. 2007). On substantial-evidence review, factual findings are not reversed unless the petitioner demonstrates "that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion." Orellana-Monson, 685 F.3d at 518 (internal quotation marks and citation omitted).
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