Rivera-Medrano v. Garland
| Decision Date | 26 August 2022 |
| Docket Number | 20-1667 |
| Citation | 47 F.4th 29 |
| Parties | Karen Elizabeth RIVERA-MEDRANO, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
47 F.4th 29
Karen Elizabeth RIVERA-MEDRANO, Petitioner,
v.
Merrick B. GARLAND, United States Attorney General, Respondent.
No. 20-1667
United States Court of Appeals, First Circuit.
August 26, 2022
SangYeob Kim, with whom Gilles Bissonnette, Henry Klementowicz and American Civil Liberties Union of New Hampshire were on brief, for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, and Leslie McKay, Senior Litigation Counsel, were on brief, for respondent.
Before Thompson, Lipez, and Kayatta, Circuit Judges.
LIPEZ, Circuit Judge.
Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture ("CAT"), 8 C.F.R. §§ 1208.16(c) – 1208.18, and denying her motion to remand this case to the immigration judge ("IJ") based on newly obtained evidence.1 We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings.
I.
A. Rivera-Medrano's Abuse in El Salvador
In or about 2008, when Rivera-Medrano was about nine years old, her stepfather Jose Luis Bonilla came to live with Rivera-Medrano and her mother and brother. Rivera-Medrano asserts that Bonilla physically and sexually abused her multiple times, such as by touching her breasts and legs. On one occasion, Bonilla came into the bedroom she shared with her brother and attempted to undress her. After reporting this incident to her aunt, who lived next door, Rivera-Medrano and other members of her family sought help from the police. Bonilla fled and the police did not find him.
Rivera-Medrano and her brother then went to live with her grandmother and uncle in a different neighborhood for several years. In about 2015, she returned to live with her mother and again encountered Bonilla in the neighborhood. At first, he would simply stare at her, and Rivera-Medrano -- who was then a high school student -- attempted to avoid him. However, sometime in 2017, Bonilla approached her and threatened to "do to [her] what he was not able to do before." Rivera-Medrano believed that Bonilla was upset because his relationship with her mother had ended after Rivera-Medrano reported the incident in which he attempted to undress her.
Later, also in August 2017, Bonilla demanded that Rivera-Medrano accompany him to drop off a bag with an unidentified man, threatening to rape her if she did not comply. The man to whom they delivered the bag was tattooed with the number 18, which Rivera-Medrano believed signified
the 18th Street gang. The situation with Bonilla then worsened. Several days later, he took Rivera-Medrano to a nearby riverbank, where he beat and raped her.
Rivera-Medrano and her mother reported the rape to the police soon thereafter, but Bonilla was not apprehended. Rivera-Medrano fled El Salvador shortly after making this report. After spending approximately three months in Mexico, she entered the United States in November 2017.
B. Rivera-Medrano's 2017 Entry and 2018 Removal Hearing
Rivera-Medrano was stopped at the southern border and screened by a Customs and Border Protection ("CBP") officer. She did not disclose Bonilla's abuse to this officer, instead stating that she feared returning to El Salvador because she had refused to transport drugs for a gang member. She was detained and referred to an asylum officer for a credible fear interview ("CFI"), which occurred in December 2017.
During the CFI, Rivera-Medrano disclosed Bonilla's sexual assaults, including her rape in August 2017. According to the asylum officer's interview notes, Rivera-Medrano stated that she feared Bonilla would kill her if she returned to El Salvador because "when he raped me my mother called the police," but they "did not find him."2 When asked whether she had "filed a police report," she responded that she had. The asylum officer's written summary of the interview states that "[Rivera-Medrano's] mother reported [Bonilla] to the police and the police searched for him but could not find him."
Rivera-Medrano also disclosed the incident in which Bonilla coerced her into delivering the bag. When asked by the asylum officer whether she had ever moved drugs, she responded "only one time," explaining that Bonilla had threatened to rape her if she did not accompany him on this errand. Asked if she thought Bonilla belonged to a gang, she responded, "I think so." The asylum officer's written summary stated that Bonilla "forced [her] to take drugs to a possible member of the 18 gang," and this portion of the summary was confirmed by Rivera-Medrano.
Rivera-Medrano was found to have a credible fear of persecution, and her case was referred to an IJ in San Antonio, Texas. She remained detained and appeared pro se before the IJ for an initial proceeding in January 2018. At that hearing, the IJ informed her that he did not have the authority to release her on bond, and he explained the potential timeline for her to submit an asylum application and appear for a merits hearing. When asked what she wanted to do, Rivera-Medrano responded, "leave to my country." Rivera-Medrano was ordered removed to El Salvador and waived her right to appeal. The IJ never addressed the merits of her fear-based claims for relief.
C. Rivera-Medrano's 2019 Entry
Rivera-Medrano returned to El Salvador for approximately nine months. However, she continued to fear Bonilla and fled the country again in October 2018. When she re-entered the United States in July 2019 and was stopped at the border, her prior order of removal was automatically reinstated. See 8 U.S.C. § 1231(a)(5). Nonetheless, she pursued withholding of removal under 8 U.S.C. § 1231(b)(3) and protection
under the CAT. See 8 C.F.R. § 208.31. After again expressing a fear of returning to El Salvador in her entry interview, Rivera-Medrano participated in two reasonable fear interviews ("RFI").3 According to the asylum officer's RFI notes, Rivera-Medrano referred to Bonilla having "rape[d]" her as a young child before she moved away from her mother's house.4 The notes also indicate that, when asked how many times Bonilla raped her, Rivera-Medrano responded, "in total, three times." She also stated that, when she told the police about the 2017 rape, they told her to go home and did not "take [her] report."
Rivera-Medrano also recounted that Bonilla "made me bring a bag to a guy" when she was in high school, but said that she did not know what was in the bag. She explained that she assumed the recipient of the bag was a gang member because he was tattooed with the number 18.
The asylum officer found that Rivera-Medrano had a reasonable fear of return and referred her to immigration court for proceedings on her requests for relief. Her merits hearing was adjourned several times so that she could obtain counsel, but she was unable to do so. Thus, although she is a native Spanish speaker and does not speak or write in English, Rivera-Medrano represented herself at the hearing through an interpreter.5
D. Rivera-Medrano's Merits Hearing
In November 2019, Rivera-Medrano appeared pro se before an immigration judge in Boston, where she had been moved for detention. She testified about her childhood sexual abuse by Bonilla; that he had coerced her into delivering a bag of unknown contents to a potential gang member in 2017; that he had raped her in August 2017; and that she had reported the rape to the police, who did not take meaningful action. She became so emotional during the proceedings that the IJ stopped her testimony multiple times to give her breaks.
The government sought to raise doubts about several aspects of Rivera-Medrano's testimony by introducing the notes from her CFI and RFIs, as well as the CBP officer's summary of Rivera-Medrano's initial apprehension at the border in 2017, which was contained in a two-page document known as an I-213. Government counsel asked why she had testified at the hearing that she did not know for certain what was in the bag Bonilla had asked her to deliver, but had told the CBP officer and the asylum officer in 2017 that Bonilla wanted her to transport drugs. Rivera-Medrano responded that she did not recall referring explicitly to drugs in 2017 and that she "did not know [the bag's] content[s]." She also testified that she had felt intimidated by the CBP officer. She explained that "I don't like telling what happened to me, and he was saying that everything I said was a lie."
Relying on the same CFI notes, the government also pressed Rivera-Medrano on several details of the response to her rape in 2017. Government counsel noted
that Rivera-Medrano had told the asylum officer that her mother called the police, who then searched for Bonilla after taking her report. At the hearing, however, she had testified that her mother had merely accompanied her to the police station and that the police did not ask questions or conduct any investigation. When cross-examined, Rivera-Medrano responded that...
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