Gonzalez v. Whitaker, 18-1122

• Decision Date: 15 November 2018
• Docket Number: No. 18-1122,18-1122
• Citation: 908 F.3d 820
• Parties: Francisco AVELAR GONZALEZ, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

908 F.3d 820

Francisco AVELAR GONZALEZ, Petitioner,

v.Matthew G. WHITAKER,^* Acting Attorney General, Respondent.

No. 18-1122

United States Court of Appeals, First Circuit.

November 15, 2018

Carlos E. Estrada, Ashley M. Barkoudah, and Estrada Law Office on brief for petitioner.

Maarja T. Luhtaru, Trial Attorney, Civil Division, U.S. Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Rachel L. Browning, Acting Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before Lynch, Stahl, and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

Francisco Avelar-Gonzalez, a native and citizen of El Salvador, seeks judicial review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) denial of Avelar-Gonzalez's requests for asylum under the Immigration and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a), for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under Article 3 of the United Nations Convention Against Torture (CAT).¹

We focus on his argument, which underlies all his claims, that the BIA erred in upholding the IJ's determination that Avelar-Gonzalez did not provide adequate corroboration for his claims. There is substantial evidence for the determination that Avelar-Gonzalez did not provide adequate corroboration, which was reasonably available to him, for crucial elements of his claims, and so we deny the petition for review. We dismiss for lack of jurisdiction Avelar-Gonzalez's claims regarding past persecution, ineffective assistance of counsel, and protection under the CAT.

I.

Avelar-Gonzalez entered the United States on January 29, 2012, near Hidalgo, Texas. The next day, he gave a sworn statement to the Border Patrol, discussed later. On February 20, 2012, the Department of Homeland Security served Avelar-Gonzalez with a Notice to Appear in removal proceedings, and charged him with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. On March 16, 2012, Avelar-Gonzalez, through prior counsel, conceded to the charge of removability, declined to name a country for removal, and stated that he would seek "relief in the form of asylum, withholding of removal, [and the] Convention Against Torture." A change of venue to Boston was granted on July 13, 2012.

Avelar-Gonzalez filed an application for asylum on December 11, 2012. The affidavit attached to Avelar-Gonzalez's 2012 asylum application contained only a single general paragraph alleging being "chased ... out of [El Salvador]" due to involvement with the Nationalist Republican Alliance (ARENA), a political party. The affidavit did not mention any specific persecution or harm that Avelar-Gonzalez had experienced. Further, Avelar-Gonzalez did not answer whether he, his family, or his close friends or colleagues had experienced mistreatment or harm in the past, and did not provide the requested information about his background, such as his address, past residences, education, employment, and family members.

On January 5, 2017, more than four years after his initial application and almost five years after entering the United States, Avelar-Gonzalez then filed what the parties refer to as an "updated application" for asylum. The IJ evaluated the updated application. Avelar-Gonzalez's updated asylum application stated that he had a fear of persecution based on his political party membership. He supported that with a lengthier 2017 affidavit, filed with the updated application, which stated, "I left my country because my life was at risk on account of my political opinion." As to his political opinion, Avelar-Gonzalez said that he was an active member of ARENA.

Avelar-Gonzalez's affidavit described three violent incidents in El Salvador after Avelar-Gonzalez joined ARENA in 2007. First, while he and other ARENA members were "involved in outreach efforts" in March 2008, a group from a rival political party, Farabundo Martí National Liberation Front (FMLN), accosted and physically assaulted them. He escaped, with bruises. Second, while he was campaigning with other ARENA members in November 2008, a group of people wearing FMLN shirts threatened the ARENA members, and then shot at them. Two members of the ARENA group were shot, though Avelar-Gonzalez was not, and the police took witness statements. A report was compiled, but no copies were provided. Third, around February 2009, Avelar-Gonzalez was threatened at knifepoint by men in FMLN t-shirts while leaving a football match, because he refused to remove an ARENA t-shirt he was wearing. Avelar-Gonzalez did not report this incident to the police and does not claim he was injured during this incident. Avelar-Gonzalez's affidavit did not mention any incidents of persecution or harm after the February 2009 incident, though he was in El Salvador for nearly three more years before entering the United States on January 29, 2012.

At a merits hearing before an IJ on March 7, 2017, Avelar-Gonzalez testified that he had left El Salvador due to attacks based on his ARENA membership. When testifying, Avelar-Gonzalez was at times unable to remember details about the three violent incidents, such as where and when the shooting had occurred or how many FMLN members were involved in the March 2008 incident. As to the March 2008 incident, Avelar-Gonzalez testified that this altercation started when FMLN members attempted to "destroy the [ARENA party] propaganda," or promotional material. After ARENA members "were opposed to that," the FMLN members then began hitting the ARENA members. The police responded to the incident; Avelar-Gonzalez said ARENA officials filed a report with the police, but again he did not provide a copy. Avelar-Gonzalez also testified that he was threatened about ten other times beyond the three incidents mentioned in his affidavit, including in phone calls and written notes, but he did not provide detail regarding these incidents, nor did he describe these threats in his affidavit. He was also unable to remember "approximately what ... these notes" said.

Avelar-Gonzalez's immigration record contained a sworn statement given to Border Patrol agents on January 30, 2012, the day after he crossed the border. In this sworn statement, Avelar-Gonzalez said that he left El Salvador in order "[t]o live and to look for work in Miami, Fl[orida]." When asked if he had "any fear or concern about being returned to [his] home country or being removed from the United States," he stated "[n]o." He also answered "[n]o" when asked, "[w]ould you be harmed if you are returned to your home country or country of last residence?" In front of the IJ, Avelar-Gonzalez testified that he did not remember giving this sworn statement to Border Patrol agents, and that he did not remember telling the agents that he did not have a concern about being returned to El Salvador or otherwise removed from the United States. He did, however, acknowledge that his signature was on the sworn statement, and he did not claim that the interview with the Border Patrol had not happened.

In an oral decision on March 7, 2017, the IJ denied Avelar-Gonzalez's applications. The IJ noted a number of inconsistencies between Avelar-Gonzalez's affidavit and his testimony regarding the three violent incidents, and expressed concern with Avelar-Gonzalez's vague testimony and inability to remember, or provide detail about, several important events. For example, the IJ noted that Avelar-Gonzalez testified that he was not injured during the March 2008 incident, before being confronted about the inconsistency with his affidavit. Avelar-Gonzalez amended his testimony to say that the declaration was correct rather than his initial testimony.

The IJ further stated that Avelar-Gonzalez's testimony was "somewhat at odds" with his affidavit regarding the February 2009 incident, including when and where the incident occurred and whether he was threatened at knifepoint or was shot at by FMLN members. Also, the IJ noted that Avelar-Gonzalez "was not able to remember what happened in November 2008," and that this was a significant event for his asylum application, as fellow ARENA members were allegedly shot by FMLN members. The IJ stated that these particular inconsistencies and vague testimony "g[a]ve the court pause," but the IJ did not hold them against Avelar-Gonzalez.

The IJ then expressed further concern with the "different version of events that [Avelar-Gonzalez] told to the Border Patrol," as compared to Avelar-Gonzalez's declaration and testimony before the IJ. The IJ also raised a concern regarding Avelar-Gonzalez's testimony that he had been threatened numerous times after the February 2009 incident, since these threats were not discussed in Avelar-Gonzalez's affidavit and Avelar-Gonzalez failed to provide detail about these threats during his testimony.

Due to these concerns regarding inconsistencies, vagueness, and the omission of important events from Avelar-Gonzalez's application, the IJ had "serious doubts [about] the respondent's credibility." The IJ determined that Avelar-Gonzalez had not produced necessary corroboration, such as police reports from the November 2008 attack, medical records from fellow ARENA party members' injuries, or notes related to the threats. The IJ found that further corroborating evidence "appears to have been reasonably available" (given that at least his mother and aunt remained in El Salvador), and that Avelar-Gonzalez "did not adequately explain his failure to supply such corroborating evidence." Avelar-Gonzalez did provide a notarized letter recounting statements from two persons in El Salvador² and a letter from a representative of ARENA. The second letter confirms Avelar-Gonzalez was "part of the team of ARENA activists." It says that "based on the high crime conditions ... of El Salvador and mainly the district of Colon Township ...