Diaz-Rivas v. U.S. Attorney Gen.

Decision Date18 April 2019
Docket NumberNo. 17-14847,17-14847
CourtU.S. Court of Appeals — Eleventh Circuit


Agency No. A208-172-899

Petition for Review of a Decision of the Board of Immigration Appeals

Before JORDAN, GRANT, and BALDOCK,* Circuit Judges.

GRANT, Circuit Judge:

Gloria Diaz-Rivas seeks review of a final order by the Board of Immigration Appeals (BIA) affirming the denial of her application for asylum and withholding of removal.1 Diaz-Rivas argues that the BIA erred in concluding (1) that part of her testimony was not credible and (2) that she failed to establish that she was persecuted because of her membership in a particular social group. She also asserts that the Immigration Judge (IJ) who heard her case denied her due process and equal protection of the laws. Because the record does not compel reversal of the BIA's factual findings and because Diaz-Rivas's constitutional challenges lack merit, we deny the petition for review.


Diaz-Rivas, a native and citizen of El Salvador, arrived in the United States on May 13, 2015. About one month later, U.S. immigration officials conducted a "credible fear interview" to assess her eligibility for asylum and withholding of removal. The Immigration and Nationality Act (INA) requires an alien seeking asylum to establish that she was persecuted "on account of" her "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Similarly, an applicant for withholding of removal mustshow that her life or freedom would be threatened "because of" one of these protected grounds. 8 U.S.C. § 1231(b)(3)(A).

During the credible fear interview, Diaz-Rivas stated that she fled El Salvador because members of the gang MS-13 threatened to kill her family. According to Diaz-Rivas, the gang kidnapped and killed her brother-in-law, Fidel, for failing to pay extortion money, then threatened her family after they reported his disappearance to the police. When the interviewing officer asked whether she feared returning to El Salvador for any other reason, Diaz-Rivas replied, "No, just what I told you. The reason we flee from there. They want to kill us. There I had my life. My home. We weren't rich or anything, but I was happy with my life." Diaz-Rivas also asserted that her cousin sexually abused her when she was a child but confirmed that no one else in her family had ever harmed her.

Following her release from detention, Diaz-Rivas retained counsel, who she thought would file an asylum application on her behalf. But counsel never did so, which led to an order of removal. When immigration officials sought to deport her, Diaz-Rivas obtained new lawyers, who filed an appeal with the BIA based on ineffective assistance of counsel. In support of that appeal, Diaz-Rivas submitted two affidavits describing a new reason that she fears returning to El Salvador. Specifically, Diaz-Rivas stated that her former partner, Jose Luis Gutierrez, forced her "to have sex with him about ten times a month over the course of twenty years." She further stated, "I'm scared to return because Jose Luis says that I am still with him and that I must still see him" and "I am afraid I will be forced into sex with the father of my children again." The BIA remanded Diaz-Rivas's case tothe Atlanta Immigration Court for further proceedings so that she could apply for relief from removal.

Four months later, Diaz-Rivas filed an application for asylum and withholding of removal. The IJ scheduled a November 16, 2016 hearing to evaluate those claims. About a month out, Diaz-Rivas moved for a continuance to secure additional records from El Salvador and retain a psychological expert, which the IJ denied. In doing so, the IJ remarked that "in these cases, I can tell you, there are a whole slew of them . . . . They have just been reopened and they are sitting here with motions to continue plenty. The case is going forward, okay?"

At the hearing, Diaz-Rivas testified that she feared returning to El Salvador because of the gang threats and the risk that Jose Luis would continue to abuse her. Following about three hours of testimony from Diaz-Rivas and an expert on Central American society, the IJ denied her claims on both grounds. Relevant to this petition, the IJ found that Diaz-Rivas's testimony was "not credible insofar as she claims that she was raped" by Jose Luis. Regarding the gang threats, the IJ determined that Diaz-Rivas failed to prove that MS-13 persecuted her on account of her membership in her family, which Diaz-Rivas argued was a "particular social group" under the INA.

Diaz-Rivas appealed to the BIA, which affirmed the IJ's decision. First, the BIA upheld the IJ's adverse credibility finding, noting that Diaz-Rivas's claims had "evolved significantly since her credible fear interview." Second, the BIA affirmed the IJ's determination that MS-13 "was not and would not be centrally motivated" by her "family ties." In the BIA's view, the evidence showed that thegang threatened Diaz-Rivas and her family as "reprisal for contacting law enforcement" and would have done so "irrespective of whether the individual who contacted law enforcement was related to the subject of the report."


This Court reviews the BIA's order "as the final judgment, unless the BIA expressly adopted the IJ's decision." Gonzalez v. U.S. Att'y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (per curiam) (citing Kazemzadeh v. U.S. Att'y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009)). "Where the BIA agrees with the IJ's reasoning, we review the decisions of both the BIA and the IJ to the extent of the agreement." Id.; see also Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) ("Insofar as the Board adopts the IJ's reasoning, we will review the IJ's decision as well."). In other words, where the BIA affirms the IJ's determinations for the IJ's stated reasons, "we review the IJ's analysis as if it were the Board's." Najjar, 257 F.3d at 1284.

Although we review the BIA's legal conclusions de novo, D-Muhumed v. U.S. Att'y Gen., 388 F.3d 814, 817 (11th Cir. 2004), its factual findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We thus review the BIA's findings of fact under the "highly deferential" substantial evidence test, which requires affirming those determinations so long as they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quoting Najjar, 257 F.3d at 1284). In doing so, "we consider only 'whether there is substantial evidence forthe findings made by the BIA, not whether there is substantial evidence for some other finding that could have been, but was not, made.'" Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en banc) (quoting Mazariegos v. U.S. Att'y Gen., 241 F.3d 1320, 1324 (11th Cir. 2001)).

Given this generous standard, "we view the record evidence in the light most favorable to the agency's decision and draw all reasonable inferences in favor of that decision." Id. at 1027. We cannot "'re-weigh the evidence' from scratch." Mazariegos, 241 F.3d at 1323 (quoting Lorisme v. INS, 129 F.3d 1441, 1445 (11th Cir. 1997)). Indeed, "the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings." Adefemi, 386 F.3d at 1027. Rather, when "the record could support or contradict the conclusion of the Board, we must affirm its decision." Recinos v. U.S. Att'y Gen., 566 F.3d 965, 967 (11th Cir. 2009) (citing Silva v. U.S. Att'y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)).


Diaz-Rivas first argues that the BIA erred in upholding the IJ's adverse credibility determination. As the BIA observed, Diaz-Rivas initially stated that, besides her cousin, "no one else in her family mistreated her" and that, apart from the gang threats, "she did not fear returning to El Salvador for any other reason." Only later did she claim that her former partner, Jose Luis, had repeatedly raped her and that she feared returning to El Salvador because he could harm her again. The BIA found it "significant" that Diaz-Rivas changed course on "an entire basisfor fearing return" to her home country, not just a minor detail or event. In the BIA's view, these inconsistencies supported the IJ's conclusion that Diaz-Rivas's allegations of rape were not credible.2 As a result, she failed to establish her eligibility for asylum or withholding of removal on that basis. See Lyashchynska v. U.S. Att'y Gen., 676 F.3d 962, 967 (11th Cir. 2012) (explaining that an "adverse credibility determination coupled with a lack of corroborating evidence for a claim of persecution means that the applicant's claim fails").

Based on the entire record, we cannot say that "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). The INA expressly permits an IJ to base credibility findings on inconsistencies across an applicant's statements, regardless of whether they go "to the heart of the applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii). And this Court has upheld adverse credibility findings based on inconsistencies like the one here, where the applicant's initial interview statement "was not merely a less detailed version of the facts" provided in later statements, but instead "contradicted" the applicant's hearing testimony. Shkambi v. U.S. Att'y Gen., 584 F.3d 1041, 1051 (11th Cir. 2009) (per curiam); see also Chen v. U.S. Att'y Gen., 463 F.3d 1228, 1232 (11th Cir. 2006) (upholding credibility determination based on "inconsistencies and discrepancies" between credible fear interview, asylum application, and hearing testimony). There is no question that Diaz-Rivas's claims raise serious allegationsthat warrant careful...

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