Munoz-Rivera v. Garland
| Docket Number | 22-3124 |
| Decision Date | 24 August 2023 |
| Parties | Irma Elizabeth Munoz-Rivera, et al., Petitioners, v. Merrick B. Garland, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
1
Irma Elizabeth Munoz-Rivera, et al., Petitioners,
v.
Merrick B. Garland, Attorney General of the United States, Respondent.
No. 22-3124
United States Court of Appeals, Seventh Circuit
August 24, 2023
ARGUED MAY 25, 2023.
Petition for Review of An Order of the Board of Immigration Appeals. Nos. A209-299-363, A209-299-364, A209-299-365.
Before EASTERBROOK, ROVNER, and LEE, Circuit Judges.
ROVNER, Circuit Judge.
Irma Munoz-Rivera and her daughters, Ana Cristina and Maria, fled Guatemala where they allege they were victims of domestic abuse, and sought asylum in the United States, entering without inspection in
August 2016.[1] The immigration judge found that Munoz's claims were not supported by credible evidence and denied her petition. The Board of Immigration Appeals affirmed and ordered removal to their countries of citizenship, which is Honduras for Munoz and Guatemala for Ana and Maria. Because the decisions were supported by substantial evidence, this court must deny Munoz's petition for review.
I.
Munoz was born in and is a citizen of Honduras. She moved to Guatemala at age twenty-five to join some family members, but never acquired lawful status there. In Guatemala, she entered into a twelve-year relationship with Esduardo Mazariegos, with whom she had two daughters, Ana and Maria, who by birth became citizens of Guatemala. When Munoz was pregnant with Maria, Esduardo began a relationship with another woman, Alejandra Oneida Escalante, and his relationship with Munoz deteriorated.[2]
Munoz and her children left Guatemala for the United States in August 2016. She applied for asylum under 8 U.S.C. § 1158(b)(1)(A) along with withholding of removal under 8 U.S.C. § 1231(b)(3)(A), and relief under the Convention Against Torture. The daughters sought derivative beneficiary status under 8 U.S.C. § 1158(b)(3), and as such their claim for
relief is entirely based on the success of Munoz's claim. See N.L.A. v. Holder, 744 F.3d 425, 432-33 (7th Cir. 2014).
At her credible fear interview held shortly after her arrival in the United States, Munoz stated that she was afraid of Oneida who had insulted and threatened her and wanted her to leave Guatemala. In response to a direct question about physical harm, Munoz stated that she had not been physically harmed by Oneida or anyone else. She also stated that the police would protect her in Guatemala. In an updated asylum application, however, she claimed that she was the victim of domestic violence at the hands of Esduardo. The declaration submitted with her application added that Oneida had threatened to kill her, and also described an incident in which her husband chased her with an axe. In her legal brief in support of the application she added that Esduardo repeatedly hit her and her daughters.
At her trial before the immigration judge, Munoz testified that Esduardo was physically and mentally abusive, and that the abuse began primarily when and because Esduardo began a relationship with Oneida. In testimony, she described Esduardo's taunts and verbal abuse, as well as the axe-chasing event whereupon she fell and received five stitches on her head. She also testified that she tried to leave the house, but Esduardo found her and threatened to take her daughters if she tried to leave again. She asserted that she could not go to the police because they would not help a foreigner, but that Esduardo's mother would often intervene when Esduardo was abusive. Munoz left for the United States because she feared that Esduardo's mother, who had become ill with cancer, would no longer be able to protect her. According to Munoz's testimony, Esduardo and Oneida wanted her to
leave Guatemala, but she feared they would continue to harass her if she went to Honduras, as Oneida had family there and would "find a way to continue bothering" her. Administrative Record (A.R.) at 154. Munoz's cousin in Honduras told Munoz that Oneida and Esduardo reached out to her and said that they will not leave Munoz alone and will look for her wherever she is.
On cross examination, when the Department of Homeland Security attorney asked Munoz why she had told the asylum officer that that she had not been harmed by anyone other than Oneida, Munoz replied "[b]ecause she was the only one who had harmed me, and he who hurt me a lot." A.R. at 152. The Department attorney asked Munoz if Oneida ever hit her, and she responded "No, she only threatened me." A.R. at 156. And when asked if Esduardo ever hit her, she responded, "[h]e will come to threaten me, and my mother-in-law would defend me." Id. When the Department attorney asked why she testified on direct examination that Esduardo hurt her a lot, she answered that it "was true because he mistreated me a lot" and would "say mean things" all the time. A.R. at 15758. The Department lawyer also asked her why Oneida would still pursue her in Honduras if Oneida's goal was for Munoz to leave Guatemala. Munoz simply responded that Oneida "would find a way to continue bothering me." A.R. at 154.
On re-direct examination, Munoz's attorney asked, "did your ex-partner ever hit you?" Munoz replied, "No, he just mistreated me verbally with his threats." A.R. at 159. When asked why she testified earlier that he did physically hit her, she replied, "no just when he was chasing" her and she fell and hurt her head. Id. She added that he would chase her around with a knife every week for ten years and once "threw
the door" on her and hurt her finger. A.R. at 159-61. She also testified on re-direct that she was uncomfortable sharing this information with the male asylum officer at her credible fear interview.
Munoz also testified about an incident in 2010 when she alleged that Oneida kidnapped Ana. Munoz explained that she sent Ana to the store, and an hour later a cousin called to say that Ana was with Oneida in Huehuetenango, which was about two hours away.[3] The immigration judge asked how she could have received a call from her cousin about the kidnapping one hour after it happened if Ana was taken two hours away, and Munoz responded, "Well, because he was over there and Huehuetenango." A.R. at 169-70. When asked why Oneida would take her daughter, Munoz stated that it was because Oneida wanted Esduardo "to come to her [Oneida's] house." A.R. at 170. But Munoz also confirmed that Esduardo was living with Oneida at the time of the kidnapping. According to her testimony, she went to the police department, but the police told her not to press charges, and Oneida also begged her not to press charges. She stated that she nevertheless filed a police report that same day, but when questioned as to why the police report was dated 2016, she explained that she did not receive a copy until 2016.
The immigration judge held that Munoz's testimony was not credible based on the cumulative effect of the inconsistent, vague, and evasive testimony, and thus she did not meet her burden under the REAL ID Act. Pub. L. No. 109-13, 119 Stat. 302 (2005); 8 U.S.C.A. § (b)(1)(B)(iii).
Moreover, the immigration judge found that the documentary evidence did not rehabilitate her claim, and therefore denied her application for asylum, withholding of removal, and protection under the Convention Against Torture. The immigration judge also denied Munoz's request to have Ana testify as the judge explained that she did not think her testimony would be relevant and she did not "see any benefits of having a child or minor testify about an event that she probably did not understand when she was 5 years old." A.R. at 171. The Board affirmed, finding that the immigration judge based her credibility finding on specific and cogent reasons, agreeing that the testimony was inconsistent, implausible, and vague. The Board found that Munoz "also did not challenge the Immigration judge's findings she made as to the respondent's implausible and vague testimony .. [and] did not address the inconsistency regarding when she filed the police report," and thus waived any challenge to those findings made by the immigration judge. A.R. at 4. Because the Board agreed with the decision of the immigration judge, we review the immigration judge's decision as supplemented by the Board. Cui v. Garland, 71 F.4th 592, 599 (7th Cir. 2023).
II.
Munoz bears the burden of proving that she is a refugee who is unwilling or unable to return to her home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i). Victims of domestic violence may meet this burden if they "would experience...
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