Garcia v. Attorney Gen. of the United States
| Decision Date | 13 January 2012 |
| Docket Number | No. 10–1311.,10–1311. |
| Citation | 665 F.3d 496 |
| Parties | Silvia Moreno GARCIA; Claudia Moreno GARCIA, Petitioners v. ATTORNEY GENERAL of the UNITED STATES, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
Rosa H. Soy [Argued], Montclair, NJ, for Petitioners.
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.
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.
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 San Ysidro, California. Claudia's younger sister Silvia was born on April 6, 1981, also in Guatemala City. Silvia illegally entered the United States at San Ysidro in October 2005.
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), 8 U.S.C. § 1182(a)(6)(A)(i). Both sisters conceded removability but applied for asylum, withholding of removal, and CAT protection, claiming that if they are returned to Guatemala, they will be persecuted by Valle del Sol, a violent gang the Guatemalan government allegedly cannot control.
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.
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 feared retaliation from Hilda. Silvia then turned to a lawyer who recommended she leave Guatemala City and not tell anyone where she was going, but added that she should call him in a few days. Silvia followed the lawyer's advice and went to stay with a friend several hours away in the city of Escuintla.
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 Silvia reported the encounter to COMAR, she and Danay were relocated to Guadalajara, Mexico, where they were placed in refugee housing. Meanwhile, Hilda, who was in prison at the time, kept calling.
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.
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. 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...
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