Pinel-Gomez v. Garland
| Decision Date | 02 November 2022 |
| Docket Number | 19-3124-ag |
| Parties | Mauricio Dagoberto Pinel-Gomez, J. L. P-E., Petitioners, v. Merrick B. Garland, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
ARGUED: MAY 18, 2022
On Petition for Review of a Final Order of Removal of the Board of Immigration Appeals
An immigration judge ("IJ") (Aviva L. Poczter Immigration Judge) denied Petitioner Mauricio Dagoberto Pinel-Gomez's application for asylum withholding of removal, and protection under the Convention Against Torture based on Pinel-Gomez's failure to adequately corroborate his claim with documentary evidence. The Board of Immigration Appeals ("BIA") affirmed. Petitioners argue that the BIA was unduly deferential to the IJ's determination that corroboration was required. We hold that the BIA reviews de novo an IJ's determination under 8 U.S.C. § 1158(b)(1)(B)(ii) that an applicant should provide additional evidence that corroborates otherwise credible testimony, because that is not a finding of fact. In contrast, the BIA reviews for clear error an IJ's finding as to whether an applicant does not have and cannot reasonably obtain such corroborating evidence because that is a finding of fact. Because the BIA properly applied these standards of review here, we DENY the petition for review.
HAROLD A. SOLIS, Make the Road New York, Brooklyn, NY, for Petitioners.
JOHN F. STANTON (Jessica E. Burns, on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C. (Ethan P. Davis, Acting Assistant Attorney General, Civil Division, Washington, D.C., on the brief), for Merrick B. Garland, United States Attorney General, for Respondent.
Before: KEARSE, JACOBS, and NARDINI, Circuit Judges.
An applicant seeking asylum carries the burden of establishing his eligibility for relief. In some instances, an immigration judge ("IJ") may determine that an applicant's credible testimony, standing alone, is enough to meet that burden. In others, an IJ may determine that an applicant must provide corroborating evidence because the applicant's testimony, although credible, is not sufficient on its own. Once an IJ decides that such corroborating evidence is necessary, the applicant must provide it unless he "does not have the evidence and cannot reasonably obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii). The case before us concerns the standards that the Board of Immigration Appeals ("BIA") must apply when reviewing the IJ's determinations on these issues.
The Department of Justice has promulgated regulations that govern the BIA's jurisdiction over IJ decisions in removal and asylum proceedings. 8 C.F.R. § 1003.1(b)(3), (9). The regulations provide that the BIA must review an IJ's findings of fact, including credibility determinations, for clear error. 8 C.F.R. § 1003.1(d)(3)(i). By contrast, the BIA reviews de novo all other issues in appeals from IJ decisions, including questions of law, discretion, and judgment. Id. § 1003.1(d)(3)(ii).
An IJ first determines whether corroborating evidence is needed; and if corroboration is required and is not produced, the IJ determines whether corroborating evidence was possessed by or reasonably available to the applicant. We have not previously decided which standard the BIA is to apply to which determination. We conclude that the IJ's initial determination-that an applicant "should provide" corroborating evidence, 8 U.S.C. § 1158(b)(1)(B)(ii)-is not a factual finding. We therefore hold that the BIA reviews that determination de novo. The IJ's subsequent determination as to whether an applicant "does not have the evidence and cannot reasonably obtain the evidence," id.-i.e., as to the existence of circumstances that Section 1158 provides will excuse him from providing corroboration-is a factual finding that the BIA reviews only for clear error.
Because we conclude that the BIA here properly applied these standards of review, we DENY the petition for review.
Mauricio Dagoberto Pinel-Gomez and his minor son, J. L. P-E. (together, "Petitioners"), are natives and citizens of Honduras. They left Honduras in April 2016 and entered the United States without inspection that May. The United States Department of Homeland Security ("DHS") charged Petitioners as subject to removal under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1182(a)(6)(A)(i). Pinel-Gomez conceded that he was removable but applied for asylum under section 208A of the INA, 8 U.S.C. § 1158, withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture ("CAT"), U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOF.Supp. No. 51, at 197, U.N. Dec. A/39/51, 1465 U.N.T.S 85.
He named his son as a derivative beneficiary.[1]
Pinel-Gomez sought relief on two theories: First, he alleged that he experienced past persecution in Honduras on account of his political opinion-that the Mara 18 gang threatened to kill him and his son for his refusal to pay the "tax" they demanded of residents who lived in Pinel-Gomez's hometown, Santa Elena. According to Pinel-Gomez, his refusal to pay the tax was a direct challenge to the gang's authority, as he expressed to a Mara 18 member that Santa Elena did not belong to the gang and that the gang had no right to his money, which he earned working in lemon fields and used to support his family. Second, he feared that if he returned to Honduras he would experience future persecution at the hands of Mara 18 on account of his membership in a particular social group-Hondurans who have reported gang activity to law enforcement. Pinel-Gomez claimed that Mara 18 continued to threaten him on the streets of Santa Elena on his way to or from work and, eventually, sent threatening notes to his home. Not only would Mara 18 kill him and his son if he did not pay the tax, but the gang would kill them if he reported their threats to the Honduran authorities. Pinel-Gomez claimed that, on March 30, 2016, he reported Mara 18's threats to the justice of the peace of criminal matters in Choluteca, Honduras. He later feared that Mara 18 found out about his report, and that the gang would kill him and his son if they were to return to Honduras.
Pinel-Gomez submitted three documents to corroborate his claim for relief. First, he provided a copy of a record dated May 30, 2016, and signed by the secretary of the justice of the peace in Choluteca, verifying the existence of a complaint filed by Pinel-Gomez in March 2016 about Mara 18's threats. Second, he submitted a letter from his friend stating that Pinel-Gomez fled Honduras because of threats he received from Mara 18 for his refusal to pay the "war tax"; that upon Pinel-Gomez's departure from Honduras, Mara 18 destroyed his home during their search for him; and that the friend was hospitalized after he was beaten by Mara 18 members looking for information on Pinel-Gomez's whereabouts. Lastly, he submitted evidence summarizing the conditions in Honduras.
At a February 12, 2018, hearing, IJ Aviva L. Poczter denied Petitioners' applications for asylum, withholding of removal, and CAT relief. The IJ's oral decision found Pinel-Gomez credible "in the sense that his testimony was internally consistent." But the IJ determined that his testimony was "inconsistent with one of only two pieces of personalized corroborating evidence directly relating to [his] claim"-that is, the record of Pinel-Gomez's March 2016 complaint of threats by Mara 18. Pinel-Gomez, the IJ said, was unable to explain why the report signed by the justice of the peace was dated May 30 when Pinel-Gomez had testified to receiving it on March 30. The IJ also gave no weight to the letter from Pinel-Gomez's friend, as it did not specify where Pinel-Gomez and the friend lived and was unaccompanied by any documentation of the friend's identity. Finally, the IJ concluded that although Pinel-Gomez had argued that he lacked the opportunity to get necessary supporting documents, such as proof of his address and verification of his friend's identity, his explanations did "not mean that the document[s were] not reasonably available had [they] been properly requested from local authorities." CAR 119.
Petitioners submitted a timely appeal to the BIA. On September 18, 2019, the BIA dismissed Petitioners' appeal. See Matter of Mauricio Dagoberto Pinel-Gomez, J. L. P-E., Nos. A208 991 867/866 (B.I.A. Sept. 18, 2019), aff'g Nos. A208 991 867/866 (Immigr. Ct. N.Y.C. Feb. 12, 2018). The BIA affirmed the IJ's determination that Petitioners did not meet their burden of proof for asylum, withholding of removal, or CAT protection given Pinel-Gomez's failure to provide documentary evidence to corroborate his otherwise credible testimony. This issue was dispositive of Petitioners' claims.
Pinel-Gomez and his son now petition for review of the agency's denial of their claims for relief.
Petitioners raise only one argument on appeal: that the BIA applied an unduly deferential standard of review to the IJ's determinations that corroborating evidence was required and that such evidence was reasonably obtainable. We review questions of law de novo, including whether the BIA applied the correct standard in its review of an IJ decision. See Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir. 2001) ...
To continue reading
Request your trial