Pagoada-Galeas v. Lynch, 15-3770

• Decision Date: 02 September 2016
• Docket Number: No. 15-3770,15-3770
• Parties: SANTOS PAGOADA-GALEAS, Petitioner, v. LORETTA E. LYNCH, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

SANTOS PAGOADA-GALEAS, Petitioner, v. LORETTA E. LYNCH, U.S. Attorney General, Respondent.

No. 15-3770

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

September 2, 2016

NOT RECOMMENDED FOR PUBLICATION

File Name: 16a0514n.06

ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS

BEFORE: BATCHELDER and WHITE, Circuit Judges; and LIPMAN, District Judge.^*

HELENE N. WHITE, Circuit Judge. Santos Pagoada-Galeas, a citizen of Honduras, was stopped entering the United States in July 2010. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) based on two encounters with, and death threats by, the MS-13 gang. An Immigration Judge (IJ) denied Pagoada-Galeas's application—based on an adverse credibility finding and on the merits—and Pagoada-Galeas appealed to the Board of Immigration Appeals (BIA or Board). While that appeal was pending, Pagoada-Galeas filed a motion to remand based on evidence that MS-13 had murdered his younger brother. The BIA dismissed the appeal and denied the motion to remand. Pagoada-Galeas petitioned this court for review. We DENY the petition in part, GRANT in part, and REMAND the motion to remand to the BIA for further consideration.

I.

A.

Pagoada-Galeas first entered the United States illegally in 2009 to find work, but returned to Honduras after an IJ granted him voluntary departure. He attempted to return to the United States in March 2010, but was apprehended in Mexico and deported back to Honduras.

According to Pagoada-Galeas, the background pertinent to the instant asylum claim started in March 2010, when he began having trouble with the MS-13 gang. Around that time, MS-13 threatened to kill members of his soccer team—Parma—when they were playing in an MS-13 "zone," and took the team members' soccer IDs. Pagoada-Galeas encountered MS-13 again one evening in March, when "four or five" members of MS-13 approached him while he was walking home with two female friends.¹ (Aff., A.R. 344; see also Hr'g Tr., A.R. 245-46.) The gang members beat Pagoada-Galeas and hit him with a pistol, rendering him unconscious.

Pagoada-Galeas later encountered MS-13 members again, but the details of this encounter are not consistent in the record. In his affidavit and interview with an asylum officer, Pagoada-Galeas stated that the same evening as the attack, he left home to get food and saw the gang members who attacked him earlier; they chased him and he escaped by jumping over a wall, hurting his knee. At the hearing before the IJ, Pagoada-Galeas testified that this encounter occurred a week after the first incident, when his mother asked him to go out for vegetables, and that when the gang members saw him running, they shot at him. When asked to explain the inconsistency, Pagoada-Galeas testified that these were two separate incidents that occurred in the same place, and he had not mentioned both earlier in his testimony because he was nervousand not thinking clearly. However, the record does not support that these were two separate incidents and in his briefing before this court, Pagoada-Galeas does not contend he encountered MS-13 members twice after the first attack.

In addition to these attacks, according to Pagoada-Galeas, MS-13 members went to his mother's house looking for him and told his mother they would kill him. Pagoada-Galeas attested that he then went into hiding, "remain[ing] indoors as much as possible," either at his house or his girlfriend's house. (Aff., A.R. 346.) Pagoada-Galeas testified that from the time of the attacks in March through July 2010—when he left Honduras for the United States—he stayed home for one week, then spent three weeks at his grandmother's house before coming to the United States. Despite questioning about where he was for the remaining months, Pagoada-Galeas did not account for the rest of the time.

Upon fleeing Honduras in July 2010, Pagoada-Galeas was stopped at the United States border and sent to a juvenile center. Pagoada-Galeas testified at the hearing that he was traveling with a teammate. In an earlier interview with an asylum officer, however, Pagoada-Galeas stated that "[he] was traveling with four friends" from his neighborhood, one of whom was a teammate, and that "[they] hired a coyote to cross the border." (Asylum Officer's Notes, A.R. 271.) At the hearing, Pagoada-Galeas confirmed that he told the asylum officer he was traveling with four friends, but denied telling the asylum officer that they hired a coyote. (Hr'g Tr., A.R. 267-68.) When asked about the inconsistency in the number of persons he traveled with, Pagoada-Galeas testified that one was his friend, but the three others were persons from his neighborhood he did not know very well, but who "seem[ed] to know more than [he] did about crossing." (Hr'g Tr., A.R. 268.)

According to Pagoada-Galeas, since he left Honduras, gang members have threatened to hurt his mother and to kill him if he returns, (Aff., A.R. 348-49), and "have tried to go to [his] house several times to get [his] brother to come out," (Hr'g Tr., A.R. 247.) Pagoada-Galeas also testified that before he left Honduras, MS-13 killed one of his teammates, and that his mother told him of news reports indicating that three others have been killed since he left.

B.

Based on the hearing and evidence submitted, the IJ found Pagoada-Galeas's testimony not credible. The IJ focused on a number of inconsistencies in making this determination, including 1) Pagoada-Galeas's testimony that he did not have a child in Honduras, despite his statement in an affidavit that he did; 2) the inconsistency between the I-213 Form (Record of Deportable/Inadmissible Alien) filled out when Pagoada-Galeas was stopped at the border in July 2010, stating that Pagoada-Galeas came to the United States to work and did not fear returning to Honduras, and Pagoada-Galeas's "slippery" testimony about whether or not he made the latter statement to the border patrol; and 3) "numerous inconsistencies" between Pagoada-Galeas's testimony and his earlier statements to an asylum officer, particularly how many friends he traveled with to the United States, whether they hired a coyote, and when his second encounter with MS-13 occurred.² (A.R. 163-65.) The IJ then noted that although the credibility finding would be dispositive, Pagoada-Galeas also failed to demonstrate eligibility for the substantive relief sought.

The BIA affirmed, and denied the motion to remand that Pagoada-Galeas filed while his appeal to the BIA was pending. This appeal followed.

II.

Where the BIA reviews the IJ's decision and issues a separate opinion, this court reviews the BIA's decision as the final agency determination, but to the extent the BIA adopts the IJ's reasoning, the court also reviews the IJ's decision. Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009). We review legal conclusions de novo, deferring to the BIA's reasonable interpretations of the INA, Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir. 2005), and review administrative findings of fact using the substantial evidence standard, "keeping in mind that such findings are 'conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,'" Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005) (quoting Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004)).

III.

An asylum applicant bears the burden of establishing he is a refugee as defined by 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A), (B)(i). The applicant's testimony alone may be sufficient to meet this burden, "but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." Id. § 1158(b)(1)(B)(ii). To determine credibility, the fact-finder considers the "totality of the circumstances, and all relevant factors," and

may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.

Id. § 1158(b)(1)(B)(iii).

A.

Pagoada-Galeas first challenges the IJ's reliance on the Asylum Officer's Notes (generated April 19, 2011), and the I-213 Form (generated by the border patrol when Pagoada-Galeas entered the county unlawfully on July 10, 2010) in making an adverse credibility determination, arguing that these forms do not contain sufficient indicia of reliability under the analysis set forth in Koulibaly v. Mukasey, 541 F.3d 613, 620-21 (6th Cir. 2008).³ In Koulibaly, this court held that courts should "ensure that there exist sufficient 'indicia of reliability' before relying upon an Assessment to Refer" to make a credibility determination. 541 F.3d at 620-21 (quoting Singh v. Gonzales, 403 F.3d 1081, 1087 (9th Cir. 2005)). In identifying relevant indicia, the court quoted the Ninth Circuit's explanation of what an unreliable Assessment lacked:

The Assessment To Refer does not contain any record of the questions and answers at the asylum interview, or other detailed, contemporary, chronological notes of the interview, but only a short, conclusory summary-essentially, an opinion. There is no transcript of the interview. There is no indication of the language of the interview or of the administration of an oath before it took place. The asylum officer did not testify at the

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