Molina-Diaz v. Wilkinson

• Decision Date: 25 February 2021
• Docket Number: No. 15-2321,15-2321
• Citation: 989 F.3d 60
• Parties: Olga Areceli MOLINA-DIAZ, Petitioner, v. Robert M. WILKINSON, Acting United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

989 F.3d 60

Olga Areceli MOLINA-DIAZ, Petitioner,

v.Robert M. WILKINSON, Acting United States Attorney General,^* Respondent.

No. 15-2321

United States Court of Appeals, First Circuit.

February 25, 2021

Nancy J. Kelly, Boston, MA, with whom John Willshire Carrera and Harvard Immigration & Refugee Clinic of Harvard Law School at Greater Boston Legal Services were on brief, for petitioner.

Stratton C. Strand, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas E. Ginsburg, Assistant Director, and Derek C. Julius, Senior Litigation Counsel, were on brief, for respondent.

Before Howard, Chief Judge, and Kayatta, Circuit Judge.^**

HOWARD, Chief Judge.

Petitioner Olga Areceli Molina-Diaz is a Honduran native and citizen who twice entered the United States without authorization. The government ordered her removed to Honduras, and an immigration judge ("IJ") denied her subsequent application for withholding of removal ("Application"). Molina appealed to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's order and denied Molina's motion to reopen and remand. Molina now petitions this court to review the BIA's decision. Because we agree that the IJ and BIA made legal errors, we grant the petition, vacate the removal order, and remand for further proceedings.

I. Background and Facts

Molina made her first unauthorized entry into the United States in 2006. When the Department of Homeland Security ("DHS") apprehended her shortly thereafter, Molina told DHS that she was looking for work, that she was not afraid to return to Honduras, and that she did not think that she would be harmed if she returned to Honduras. DHS then removed her to Honduras.

Molina again entered the United States without authorization in 2009. This time, she told DHS that she feared returning to Honduras because of her involvement with MUCA,¹ a political organization that advocated for land-reform measures in opposition to the Honduran government's policies. DHS found that Molina had a reasonable fear of persecution and referred her case to an IJ.

In November 2011, Molina filed her Application, including a supporting affidavit and other supporting documents. Molina checked a box on the Application to indicate that she "want[ed] to apply for withholding of removal under the Convention Against Torture" ("CAT"), and she checked another box indicating that she was "afraid of being subjected to torture" if she returned to Honduras.

Molina's supporting affidavit did not expressly request CAT relief. However, it did describe threats against MUCA members, including Molina specifically, made by opposition landowners and their agents in the local police force. Molina also detailed a July 2009 journey that she and other MUCA members made to the Honduras-Nicaragua border to meet with ousted Honduran President Manuel Zelaya. During that journey, elements of the Honduran military and police forces clashed with Zelaya supporters; as a result, some supporters were "killed and stabbed and others were burned." Molina wrote that she had been warned that "militaries and security guards are still looking for [her] and asking ... when [she] will be back." The supporting affidavit also stated that Molina feared "rape ... torture or [being] kill[ed]" if returned to Honduras.

Molina also submitted a three-page supplemental affidavit ("2012 affidavit") before her 2012 merits hearing. In the 2012 affidavit, Molina stated that during the 2009 journey she became separated from her group and was subsequently chased down and raped by an anti-Zelaya Honduran soldier. Molina explained that her youngest child was born of this rape and that she had never discussed the rape with anyone, including her family. Once again, without specifically invoking CAT, Molina expressed her fear that, if removed to Honduras, "it is only a matter of time before I will be raped again, tortured, or even killed."

The IJ denied Molina's Application. Without explicitly finding Molina not credible, the IJ stated that she had "serious doubts" about Molina's credibility due to inconsistencies in Molina's various filings, hearing testimony, and the rape disclosure's timing. Although the IJ acknowledged that Molina submitted "some" corroborating evidence, the IJ required more. She noted that "[a]ll of the doubts the Court has about the credibility of [Molina's] testimony could have been overcome with appropriate corroborating evidence" and described certain information that would have been persuasive. The IJ did not address Molina's CAT claim. Molina appealed.

The BIA issued an October 2015 opinion affirming the IJ's decision and denying Molina's motion to reopen. The BIA determined that the IJ's findings "constitute[d] an adverse credibility finding" that was "not clearly erroneous." The BIA further held that the IJ "correctly determined that [Molina] did not meet her burden to provide, or adequately explain the absence of, reasonably available corroborative evidence." The BIA ruled that the IJ did not have to consider Molina's CAT claim because she failed to reference the CAT in her supporting affidavit. Finally, the BIA denied Molina's motion to reopen because the affidavits and evidence that she wished to provide were either not material or not previously unavailable.

This petition for review followed.

II. Discussion

Because the BIA adopted and discussed the IJ's findings and conclusions, we examine both decisions. See Giraldo-Pabon v. Lynch, 840 F.3d 21, 24 (1st Cir. 2016). We review findings of fact, including credibility determinations, under the substantial evidence standard, which "requires us to defer to the agency's findings as long as they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ " Mariko v. Holder, 632 F.3d 1, 5 (1st Cir. 2011) (quoting Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) ). We review legal questions de novo, with some deference to the agency's interpretation of its own statutes. Id. at 5 n.2. Finally, we review the BIA's denial of a motion to reopen for abuse of discretion, so the BIA's decision will stand unless Molina shows "that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way." Giraldo-Pabon, 840 F.3d at 24 (quoting Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir. 2008) (internal quotation marks omitted)).

Molina raises multiple arguments in her petition. We need discuss only two to dispense with this particular case. We express no opinion on any issues not addressed below.

A. Failure to produce corroborating evidence

Molina claims that the IJ and BIA erred in the manner in which they determined that more corroborating evidence was needed. We agree.

Molina applied for withholding of removal in 2011, so provisions of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (2005), govern the corroboration issue here. See 8 U.S.C. § 1231(b)(3)(C) (incorporating by reference 8 U.S.C. § 1158(b)(1)(B)(ii) and (iii) ). Although "[t]he testimony of the applicant may be sufficient to sustain [her] burden without corroboration," 8 U.S.C. § 1158(b)(1)(B)(ii), an IJ may require corroborating evidence regardless of whether or not an applicant's testimony is credible. See Soeung v. Holder, 677 F.3d 484, 488 (1st Cir. 2012).

The parties acknowledge that "[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii). But the applicability of § 1158(b)(1)(B)(ii) to Molina's case is complicated by the statutory framework governing immigration judges’ credibility determinations. Section 1158(b)(1)(B)(ii) uses the term "otherwise credible," and § 1158(b)(1)(B)(iii) lays out the relevant factors on which an immigration judge may "base a credibility determination." Section (b)(1)(B)(iii) also provides that "if no adverse credibility determination is explicitly made, the applicant ... shall have a rebuttable presumption of credibility on appeal."

These provisions suggest that an immigration judge has three options when it comes to credibility: (1) make an explicit adverse credibility determination, in which case the applicant's testimony would seem to be not "otherwise credible"; (2) make an explicit determination that the applicant is credible, in which case the applicant's testimony would seem to be "otherwise credible"; or (3) make no explicit credibility determination at all, in which case the applicant is afforded a rebuttable presumption of credibility on appeal, but may or may not be "otherwise credible" for the purposes of § 1158(b)(1)(B)(ii).

The problem, then, is the uncertainty as to the applicability of § 1158(b)(1)(B)(ii) for applicants who fall in this third category. Our opinion in Guta-Tolossa v. Holder, 674 F.3d 57 (1st Cir. 2012), seemed to acknowledge, albeit not address, this concern. There, in considering whether a notice requirement existed, the panel suggested that "[i]f section 1158(b)(1)(B)(ii) does include a notice requirement, the requirement would only apply where an IJ finds an applicant's testimony ‘otherwise credible,’ " id. at 64. And "[t]hat, in turn, presents a question of statutory interpretation: whether the IJ must explicitly find an applicant's testimony ‘otherwise credible’ on the record, or whether such a finding may be inferred from the whole of the IJ's decision." Id. However, the panel left that question to the Board to decide in the first instance, id., and as far as we can tell, the Board does not appear to have provided an answer to that question.

The parties appear to agree that the judge did not make an explicit determination that Molina was credible. However, Molina argues that the...