Ixcuna-Garcia v. Garland
| Decision Date | 08 February 2022 |
| Docket Number | No. 17-1867,17-1867 |
| Citation | 25 F.4th 38 |
| Parties | Miriam IXCUNA-GARCIA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Nancy J. Kelly, with whom John Willshire Carrera, Harvey Kaplan, and Harvard Immigration & Refugee Clinic were on brief, for petitioner.
M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Mark C. Fleming, Arjun K. Jaikumar, Cristina Salcedo, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for Harvard Program in Refugee Trauma and Dr. F. Barton Evans III, amici curiae.
Before Thompson and Kayatta, Circuit Judges, and Katzmann,** Judge.
Miriam Ixcuna-Garcia is a Guatemala-born indigenous K'iche' woman who came to the United States when she was sixteen. After being detained in a workplace raid in 2007, Ixcuna-Garcia applied for relief that included asylum and withholding of removal. Her case wound its way back and forth between an immigration judge (IJ) and the Board of Immigration Appeals (BIA) before arriving at this court on the present petition. As relevant here, the IJ and the BIA found that Ixcuna-Garcia was ineligible for asylum because she exceeded the one-year deadline for applying for such relief, and they denied her application for withholding of removal. They also questioned Ixcuna-Garcia's credibility, in part due to her failure to provide evidence from her mother corroborating her claim that she had been sexually assaulted as a child.
Before this court, the government concedes that Ixcuna-Garcia's application for withholding of removal should be remanded due to the failure of the IJ and the BIA to consider pertinent aspects of Ixcuna-Garcia's claims of past persecution. And we agree with Ixcuna-Garcia that the IJ and the BIA also erred in failing to provide her with, at the very least, an opportunity to explain why she could not provide certain corroborating evidence in connection with her request for withholding. Accordingly, we vacate the denial of Ixcuna-Garcia's application for withholding from removal. As to her request for asylum, however, we agree with the government that we lack jurisdiction to review the denial of that application. Our reasoning follows.
We begin with the circumstances that prompted this petition. Ixcuna-Garcia was born in Guatemala to an indigenous K'iche' Mayan family. She came to the United States in 2002 at the age of sixteen and settled into a K'iche' community in New Bedford, Massachusetts. Ixcuna-Garcia did not apply for asylum when she first arrived in the United States.
On March 6, 2007, Ixcuna-Garcia was detained during a raid on the Michael Bianco factory in New Bedford and placed into removal proceedings under 8 U.S.C. § 1182(a)(6)(A)(i). After conceding removability, Ixcuna-Garcia applied for both asylum and withholding of removal.1 In her initial hearings, Ixcuna-Garcia testified that she had been mistreated in Guatemala due to her indigenous Mayan identity and that she and her family had been threatened with sexual assault by Ladino men.2
She also submitted written and oral testimony regarding the impact of Guatemala's long and violent civil war on her family.
Thus began a years-long administrative process through which Ixcuna-Garcia's removal proceedings twice went before an IJ and the BIA before arriving at this court. First, in 2011, an IJ rendered an oral decision denying Ixcuna-Garcia's applications for asylum and withholding of removal. The IJ found that Ixcuna-Garcia's asylum claim was time-barred because she failed to file her application within one year of entering the country as required by statute. The IJ also explained that Ixcuna-Garcia had not demonstrated either past persecution or a likelihood of future persecution, noting that there was "no evidence that [Ixcuna-Garcia] would be subjected to torture or persecution if she were to be returned to Guatemala based on her purported fear." Accordingly, the IJ found no basis for granting Ixcuna-Garcia's application for withholding of removal. Ixcuna-Garcia timely appealed the IJ's decision to the BIA.
In 2013, the BIA issued a decision dismissing in part and sustaining in part Ixcuna-Garcia's appeal. With respect to asylum, the BIA upheld the IJ's decision, agreeing that Ixcuna-Garcia's application was time-barred. Although the BIA observed that Ixcuna-Garcia's age when she entered the country (sixteen) might have provided extraordinary circumstances warranting an exception to the one-year filing deadline, the BIA noted that Ixcuna-Garcia turned eighteen in September 2004 but did not apply for asylum until October 2007. The BIA therefore found that Ixcuna-Garcia had not filed her asylum application "within a reasonable time after she reached the age of 18 years old." The BIA likewise rejected Ixcuna-Garcia's other explanations for the delay in filing, explaining that they did not suffice to establish changed circumstances that excused the delay.
As to withholding of removal, the BIA remanded Ixcuna-Garcia's claim back to the IJ for further consideration of whether Ixcuna-Garcia was more likely than not to face future persecution upon return to Guatemala. The BIA rejected the IJ's conclusion that there was "no evidence" that Ixcuna-Garcia would be subjected to future persecution, observing that the record "contain[ed] an abundance of documentary evidence" on that point and that the IJ had failed to provide a "detailed analysis of the specific facts of [Ixcuna-Garcia's] case in relation to the controlling law." Accordingly, the BIA ordered the IJ to conduct further proceedings and issue a "new decision." The BIA further ordered that the parties should be provided with an opportunity to update the record and present additional arguments.
In the remanded proceedings before the IJ, Ixcuna-Garcia submitted new evidence in support of her applications, including her own supplemental affidavit, affidavits from two cousins, updated country conditions documentation, and a psychiatric evaluation prepared by Marguerita Reczycki, a clinical nurse specialist who examined Ixcuna-Garcia. In her supplemental affidavit in support of her request for relief, Ixcuna-Garcia stated for the first time that she had been raped as a child by a Ladino man and that Ladino men had attacked her and her cousin. She also explained in her supplemental affidavit her difficulties in applying for asylum when she first arrived in the United States. Reczycki, in turn, opined in a written report that Ixcuna-Garcia met the criteria for chronic and severe major depression and chronic post-traumatic stress disorder based on the traumatic experiences she had endured in Guatemala. Reczycki's report indicated that, in her professional opinion, past trauma prevented Ixcuna-Garcia from speaking about her history of persecution in Guatemala, particularly her rape, and from seeking assistance in applying for asylum within the first year of her entering the United States.
Based on this new evidence, Ixcuna-Garcia requested reconsideration of both her eligibility for a waiver of the one-year asylum application deadline and eligibility for withholding of removal. The IJ conducted further hearings on four separate days spread out over almost two years, ending on April 14, 2016.
Finally, on June 23, 2016, the IJ issued a written decision again denying Ixcuna-Garcia's applications for asylum and withholding of removal. As a threshold matter, the IJ addressed Ixcuna-Garcia's credibility, declining to fully credit her written and oral testimony regarding her rape by a Ladino man from when she was a child. The IJ noted that Ixcuna-Garcia had not revealed the rape either in her initial application or during her first hearings and that there were inconsistencies between her prior testimony and the testimony she offered in support of her claim that she had been raped. The IJ also declined to give much weight to Reczycki's psychiatric evaluation, observing that Reczycki was a nurse rather than a psychologist or psychiatrist and that Reczycki spent "only three hours" evaluating Ixcuna-Garcia. Additionally, the IJ noted that Ixcuna-Garcia failed to provide an affidavit from her mother corroborating the described rape.
The IJ next found that Ixcuna-Garcia's eligibility for asylum was not properly before the IJ on remand because the BIA had upheld the IJ's earlier determination that Ixcuna-Garcia was not eligible for a waiver of the one-year timing requirement. The IJ then concluded that, even if he could consider the claim, the new evidence submitted on remand, including the evidence Ixcuna-Garcia provided regarding her psychological trauma, did not reflect changed conditions directly related to Ixcuna-Garcia's delay in filing.
As to withholding of removal, the IJ found that he lacked jurisdiction to consider any new claims on remand based on mistreatment Ixcuna-Garcia had failed to allege in her initial filings or testimony, including Ixcuna-Garcia's described rape. The IJ went on to conclude that, even if he could consider the new evidence and arguments, Ixcuna-Garcia still would fail to establish past persecution or a clear likelihood of future persecution in Guatemala on account of a protected ground. Ixcuna-Garcia again filed a timely appeal to the BIA.
This time, the BIA upheld all aspects of the IJ's decision. First, the BIA agreed with the IJ's denial of reconsideration as to Ixcuna-Garcia's asylum application. The BIA explained that the new evidence Ixcuna-Garcia submitted on remand regarding her psychological trauma was not "dispositive to establish the veracity of all aspects of [her] claims" relating to her failure to apply for asylum in the required timeframe. The BIA similarly found that Ixcuna-Garcia's other new evidence...
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