Mendoza-Ordonez v. Attorney Gen. of the U.S., 16-3333

• Decision Date: 23 August 2017
• Docket Number: No. 16-3333,16-3333
• Parties: Luis Javier MENDOZA-ORDONEZ, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

869 F.3d 164

Luis Javier MENDOZA-ORDONEZ, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America, Respondent

No. 16-3333

United States Court of Appeals, Third Circuit.

Argued May 9, 2017

Filed: August 23, 2017

Joseph A. Brophy, Esq. [Argued], Brophy & Lenahan, 18 Campus Boulevard, Suite 100, Newtown Square, Pennsylvania 19073, Counsel for Petitioner.

Dana M. Camilleri, Esq., Jessica Dawgert, Esq., Sabatino F. Leo, Esq., [Argued] United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, District of Columbia 20044, Counsel for Respondent.

BEFORE: AMBRO, RESTREPO, and NYGAARD, Circuit Judges

OPINION OF THE COURT

NYGAARD, Circuit Judge.

I.

Luis Javier Mendoza-Ordonez, a citizen of the Republic of Honduras, crossed the United States border without inspection on two occasions. After his first entry Customs and Border Patrol officers (CBP) detained him and the Government returned him to Honduras under an expedited removal. When CBP detained him after his second entry Mendoza requested asylum and, alternatively, asked the Government to withhold his removal from the United States because he feared for his life if returned to Honduras.¹ He was placed into a "withholding only" proceeding and after a hearing the Immigration Judge denied his requests and ordered his removal. He appealed to the Board of Immigration Appeals (BIA) asserting, primarily, that the Immigration Judge ignored key evidence.

Mendoza now petitions us to review the BIA's order that dismissed his appeal. He contends that substantial evidence supporting his request for withholding of removal compels a conclusion that is contrary to that of the BIA. He also maintains that the BIA applied the wrong legal standard when it reviewed this claim. Finally he argues he is eligible for asylum. We will reverse the decision of the BIA and grant Mendoza's petition for withholding of removal. We will deny the petition as to his request for asylum.

II.

A.

Mendoza was born in Honduras in 1989, the son of Edith Dalila Mendoza Ordonez and Manuel Ulises Martinez Gonzalez.² Mendoza's father (Martinez) was politically active in the Liberal Party. He routinely spoke out against the National Party and its elected officials in the Honduran government. After unsuccessfully running for mayor of Apacilagua, Martinez won an election to serve as a council member for the municipality. He remained a vocal opponent of the National Party, accusing it of corruption.

Tragically, on January 1, 2000, a National Party activist named Gerardo Valladares assassinated Martinez and wounded Martinez's wife. Valladares was convicted of murder, imprisoned and released.³ In 2002, Mendoza's uncle (Jose Avilio Martinez Gonzalez) also ran for mayor as a Liberal Party candidate; he, too, was assassinated. The man who killed him, Dimas Amador, was—like Valladares—a National Party activist.⁴ Amador was convicted of this crime.

Throughout his childhood Mendoza attended Party functions with his father. In spite of the murders of his father and uncle, Mendoza's interest in politics persisted. He served as president of the local Liberal Party's youth division, gave speeches supporting the Party between 2008 and 2014, and worked for the Party during the national election in 2013.⁵

On September 7, 2014, Hector Giron approached Mendoza on behalf of Valladares (the assassin of Mendoza's father) and threatened him with the same fate as his father if he did not stop speaking out against the National Party. Mendoza reported this incident on the following day to Judge Miriam Umanzor Aguilar, who told him that she would investigate. Mendoza noted that Umanzor is a National Party member and the niece of the Apacilagua mayor (the same woman who defeated his father in the mayoral election). So when Mendoza heard nothing from Judge Umanzor in the two weeks following the filing of his complaint, he was convinced that the Judge would not take action. He left Apacilagua and stayed with one of his sisters in Tegucigalpa.

In October 2014, he applied for—but was denied—a visa to the United States. Nonetheless, Mendoza crossed the United States border from Mexico without inspection on November 27, 2014. CBP agents detained and interviewed him on his reasons for crossing.⁶ On December 3, 2014, the Department of Homeland Security executed an expedited removal under 8 U.S.C. § 1225(b)(1) and returned him to Honduras.

Again, Mendoza lived with a sister in Tegucigalpa. He remained hidden there for four months, still fearing for his safety. On April 17, 2015, Mendoza traveled to Apacilagua to visit his ailing grandfather. The next day Valladares and other National Party members approached him. Valladares put a gun to Mendoza's head and told him that he would kill him if he continued to speak out against the National Party.⁷ On April 20, 2015, Mendoza filed a complaint with Judge Umanzor about this new threat. When, on April 22, 2015, Mendoza heard nothing from the Judge about his complaint, he returned to his sister's house in Tegucigalpa and went back into hiding. He testified that he feared even walking the streets.

Mendoza attempted to re-enter the United States again in May 2015, but Mexican authorities detained and returned him to Honduras. He went back to his sister's house and remained in hiding until June 5, 2015. He then embarked on his last attempt to cross the United States border from Mexico. He re-entered the United States in July 2015. CBP detained him approximately six days after he crossed.

The Department of Homeland Security determined that Mendoza was subject to removal and served him with a Notice of Intent/Decision to Reinstate the Prior Removal Order on July 28, 2015. On September 1, 2015, an asylum officer interviewed him to determine if he had credible fear of persecution in Honduras. It was determined that Mendoza's claims warranted further review, and he was referred to the Immigration Court for a "withholding only" proceeding.

B.

The Immigration Judge concluded that, although Mendoza's testimony credibly established that he received death threats for his political opinions, he still did not meet his burden of proof for withholding of removal because he failed to prove that the Honduran government was unwilling or unable to protect him from those threats. The Immigration Judge decided alternatively that the government had proven that the periods of time in which Mendoza lived with his sisters proved that he could safely relocate in Honduras. The order pretermitted his claim for withholding of removal under the INA,⁸ and his asylum claim.⁹ It also denied his withholding of removal claim under the Convention Against Torture.¹⁰

Mendoza filed a timely direct appeal, claiming that the Immigration Judge erred by: deciding that he was ineligible for withholding of removal; concluding that he failed to prove the Honduran government was unwilling or unable to protect him; ruling that he could safely relocate in Honduras; deciding that he should be placed in a "withholding only" proceeding; and finally, declaring that he was ineligible for asylum. The BIA dismissed his appeal. Mendoza filed this petition for review.

III.

A.

Mendoza sought our review of the BIA's dismissal of his asylum claim. But he now concedes that our recent decision controls the analysis and forecloses his request for asylum. See Cazun v. Attorney General of the United States, 856 F.3d 249, 260 (3d Cir. 2017).¹¹ The remaining action that Mendoza requests from the government arises from the INA, which says: "[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group or political opinion." 8 U.S.C. § 1231(b)(3)(A). An alien who applies for withholding of removal must prove that " ‘it is more likely than not that [his] life or freedom would be threatened on account of ... political opinion.’ " Ordonez–Tevalan v. Attorney General of the United States , 837 F.3d 331, 341 (3d Cir. 2016) ( quoting Amanfi v. Ashcroft, 328 F.3d 719, 726 (3d Cir. 2003) ); 8 C.F.R. § 1208.16(b)(1).¹² Mendoza contends that the BIA erred by ruling that he failed to prove this.

We have jurisdiction to review the BIA's final order of removal under 8 U.S.C. § 1252(a). When, as in this instance, the BIA provides its own reasoned decision (rather than merely adopting the immigration judge's opinion) we review the BIA's decision as the final decision. Nelson v. Attorney General of the United States, 685 F.3d 318, 321 (3d Cir. 2012). Nonetheless, "to the extent the BIA deferred to or adopted the [immigration judge's] reasoning" on particular issues, we may consider both opinions on those points. Id. We are empowered to review the BIA's legal conclusions under a de novo standard of review. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). But we must regard all determinations about facts grounding the final order as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Factual findings include statements about the events and circumstances in the country grounding an alien's claim that he or she suffered persecution. Kaplun v. Attorney General of the United States , 602 F.3d 260, 270 (3d Cir. 2010).¹³

Mendoza alleges the BIA made two errors. First, he contends the entire record compels a result contrary to BIA's finding that he failed to produce sufficient evidence to support his request for withholding of removal. He also claims that the BIA applied the wrong standard of review when it analyzed his argument that the Immigration Judge ignored key evidence. We will address this latter issue first.

B.

The BIA is required to examine challenges to the immigration judge's factual findings for clear error. 8 C.F.R. § 1003.1(d)(3)(i). Clear error is commonly defined as "an obvious, plain,...