Moreno v. Holder

• Decision Date: 18 April 2014
• Docket Number: No. 13–1570.,13–1570.
• Citation: 749 F.3d 40
• Parties: Luz Mery MORENO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

749 F.3d 40

Luz Mery MORENO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 13–1570.

United States Court of Appeals,First Circuit.

April 18, 2014.

Stephen M. Born and Mills and Born, LLP on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Greg D. Mack, Senior Litigation Counsel, and Manuel A. Palau, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, on brief for respondent.

Before TORRUELLA, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

Petitioner Luz Mery Moreno, a Colombian national, seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her asylum and ordering her removed to her homeland. After careful consideration, we deny the petition.

In December of 1998, the petitioner entered the United States pursuant to a non-immigrant tourist visa. That visa required that she depart the country by June 21, 1999. The petitioner overstayed, and nearly eight years passed before federal authorities initiated removal proceedings against her. See8 U.S.C. § 1227(a)(1)(B).

The petitioner admitted the factual allegations of the charge and conceded removability. She did, however, cross-apply for asylum, withholding of removal, and protection pursuant to the United Nations Convention Against Torture (CAT). The gist of her asylum claim was her plaint that she had been persecuted, and would face future persecution, on account of, among other things, her status as the expatriate widow of a slain narco-trafficker.

On July 13, 2011, the petitioner appeared for the removal hearing. Although the petitioner did not affirmatively seek asylum until 2007—well after the usual one-year deadline (measured from date of entry into the country) for filing asylum claims, see8 U.S.C. § 1158(a)(2)(B)—the immigration judge (IJ) nonetheless deemed her application timely. The IJ predicated this conclusion, without further explanation, on the fact that the petitioner's second husband had applied for asylum in 1992 and the United States Citizenship and Immigration Service had considered the petitioner to be a part of that application.

Turning to the merits, the IJ found the petitioner's testimony credible (though somewhat lacking in specifics). Consistent with this positive credibility determination, we assume the accuracy of the raw facts elaborated in her testimony. See Gilca v. Holder, 680 F.3d 109, 113 (1st Cir.2012).

The petitioner related a tale of a Colombia wracked by fear and violence. The saga began in high school, when she started dating her first husband, Juan Carlos Giraldo (whom she married in 1995).

Approximately two years into the marriage, the petitioner discovered a firearm and drugs in her husband's coat. She also learned that Giraldo had access to large amounts of unexplained money. With these data in hand, the petitioner settled on a dark conclusion: her husband was a drug trafficker.

To complicate matters, Giraldo was prone to angry outbursts. His violent tendencies escalated over time, and in October of 1998, the petitioner left the marital home and moved to her parents' nearby residence. Though she stayed there for several weeks, her absence failed to abate Giraldo's stream of threats. To escape what she perceived as imminent peril, she applied for, obtained, and used a tourist visa to enter the United States.

Distance did not prove to be a complete panacea. The petitioner remained in contact with relatives and, through them, learned that her first husband was continuing to threaten her and her family.

Those threats came to an abrupt halt on March 17, 2001, when Giraldo met a violent death. His murder was presaged by anonymous threats directed at the petitioner and her relatives, as well as gunshots fired at Giraldo's home in or about September 2000. Although the petitioner never learned the identity of her first husband's slayer, she came to believe that an unpaid drug-related debt had sparked the homicide. She also believed that the litany of threats and gunshots were attributable to Giraldo's drug-trade associates.

After hearing the petitioner's testimony, the IJ denied her application for asylum.¹The gravamen of the IJ's decision was a finding that the petitioner had failed to carry her burden of proving either past persecution or a well-founded fear of future persecution based on a statutorily protected ground. See8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b).

The petitioner pursued an administrative appeal. The BIA rejected that entreaty. This timely petition for judicial review followed.

Judicial review of immigration cases normally focuses on the final order of the BIA. See Mariko v. Holder, 632 F.3d 1, 5 (1st Cir.2011). “But where, as here, the BIA accepts the IJ's findings and reasoning yet adds its own gloss, we review the two decisions as a unit.” Xian Tong Dong v. Holder, 696 F.3d 121, 123 (1st Cir.2012). “In this exercise, we test the agency's factual findings ... under the familiar substantial evidence rule.” Gilca, 680 F.3d at 114 (internal quotation marks omitted). “This standard requires us to accept all findings of fact so long as they are supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (internal quotation marks omitted). An agency's determination of a fact-driven issue may not be set aside unless the evidence compels a contrary determination. See INS v. Elias–Zacarias, 502 U.S. 478, 483–84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The petitioner advances three claims of error. We address each claim in turn.

To begin, the petitioner asserts that the BIA erred in applying the REAL ID Act's corroboration requirements to her asylum application. See8 U.S.C. § 1158(b)(1)(B)(ii). We review this claim of legal error de novo, with some deference, however, to the agency's expertise in matters of statutory and regulatory interpretation. See Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir.2012).

By its terms, the REAL ID Act applies to “applications for asylum ... made on or after [May 11, 2005].” REAL ID Act of 2005, Pub.L. No. 109–13, § 101(h)(2), 119 Stat. 231, 305. The petitioner applied for asylum on June 5, 2007, so the REAL ID Act would appear to control. See, e.g., Mazariegos–Paiz v. Holder, 734 F.3d 57, 64 (1st Cir.2013) (applying the REAL ID Act to asylum application filed in 2008).

But appearances can be deceiving, cf. Aesop, The Wolf in Sheep's Clothing (circa 550 B.C.), and the petitioner suggests that the linkage of her 2007 asylum application with her second husband's 1992 asylum application—a linkage that the IJ developed for timeliness purposes—alters the analysis. This suggestion, though ingenious, cannot withstand scrutiny.

The agency's determination of the timeliness of an asylum application is beyond the scope of judicial review. See8 U.S.C. § 1158(a)(3); see also Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir.2007). Moreover, there is no principled basis for concluding that the timeliness determination in this case—which in all events is something of a mystery ²—controls the separate issue of what statutory regime governs the petitioner's asylum application. The former simply does not inform the latter. We conclude, therefore, that the BIA's invocation of the REAL ID Act's corroboration requirement was altogether appropriate.

The petitioner's second claim of error implicates the agency's holding that she failed to carry her burden of proving either past persecution or a well-founded fear of future persecution. See Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004) (explicating allocation of burden of proof in asylum cases). To make out eligibility for asylum, “the alien must establish that [s]he is a ‘refugee’ within the meaning of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1).” Orelien v. Gonzales, 467 F.3d 67, 70 (1st Cir.2006). This requires the alien to show that she is “unable or unwilling to return to her home country ‘because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Lopez Perez v. Holder, 587 F.3d 456, 461 (1st Cir.2009) (quoting 8 U.S.C. § 1101(a)(42)(A)).

We review the agency's findings concerning the presence or absence of persecution “through the prism of the substantial evidence rule.” Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007). With respect to her claim of past persecution, the petitioner points to her first husband's involvement with narco-traffickers and his ensuing death. Relatedly, she points to the threats that both she and her family received over the years—threats that she believes emanated from narco-traffickers. These events, the petitioner asserts, compel a conclusion that she has suffered past persecution.

The petitioner's argument ignores the agency's legitimate concern that her testimony, though credible, was uncorroborated by other evidence. Both the IJ and the BIA were troubled by this paucity of evidence, noting that the petitioner never substantiated either her suspicion that her first husband was involved with narco-traffickers or her suspicion that he was killed as a result of that involvement. The agency had the right to require that the petitioner proffer more than uncorroborated suppositions; it had the right to expect such corroboration, if reasonably available. See8 U.S.C. § 1158(b)(1)(B)(ii) (stating that the trier of fact is entitled to require an asylum applicant to corroborate otherwise credible testimony). In this instance, the petitioner offered neither corroboration nor a plausible explanation for the lack of corroboration. Consequently, the agency was entitled to find—as it did—that she failed to carry her burden of proof. See, e.g., Muñoz–Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir.2008).

The agency's conclusion about the insufficiency of the evidence of past persecution...