Troche v. Garland
| Decision Date | 18 October 2021 |
| Docket Number | No. 20-1718,20-1718 |
| Citation | 15 F.4th 559 |
| Parties | Mario Rene Lopez TROCHE, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Elena Noureddine, with whom Irene C. Friedel and PAIR Project were on brief, for petitioner.
Jennifer A. Bowen, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, and Anthony C. Payne, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Before Kayatta and Barron, Circuit Judges. Saris,** District Judge.
Mario Rene Lopez Troche ("Lopez Troche"), a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals ("BIA") that affirms the denial of his application for withholding of removal and protection under the Convention Against Torture ("CAT"). We vacate and remand.
Lopez Troche came to the United States in 1988. He was removed from this country in 1992. He re-entered the United States shortly thereafter. He has lived here since 1993 or 1994.
The U.S. Department of Homeland Security detained Lopez Troche and reinstated his removal order on February 6, 2013. While detained at the Suffolk County House of Correction in Boston, Massachusetts, Lopez Troche asked to meet with an asylum officer. The asylum officer then conducted what we will refer to as a "reasonable fear" interview.
Lopez Troche told the asylum officer that he was gay and living with HIV. He further claimed that, on account of his sexual orientation and from a young age, "he was repeatedly harassed, abused and beaten by members of his community." He said that he had been abused and faced attempted stoning and frequent beating because of his sexual orientation and that this abuse was exacerbated by his dressing as a woman for shows at clubs.
Lopez Troche also told the asylum officer about his relationship in Honduras with a man named Carlos Sota. Lopez Troche told the asylum officer that Sota's family blamed Lopez Troche for Sota's death from AIDS and that they told Lopez Troche that the family would kill him if he did not leave the country. Lopez Troche also told the asylum officer that he thought that Sota's family was responsible for the murder of Lopez Troche's younger brother in 2012, and that, should Lopez Troche return to Honduras, Sota's family would kill him as well.
According to the asylum officer's notes of the interview, when Lopez Troche was asked whether he had ever gone to the police to report any of the abuse that he had recounted, he stated: "we complained a few times but nothing happened[;] the police didn't do anything about it." The asylum officer's notes also recorded that Lopez Troche claimed that he feared harm from "the authorities" in Honduras "because they don't protect the homosexual community [and] ... people go unpunished, they violate rights of homosexuals."
The asylum officer determined that Lopez Troche was credible and that Lopez Troche had established a reasonable fear of persecution in Honduras. Lopez Troche thereafter filed a Form I-589 application for withholding of removal and protection under the CAT. See 8 C.F.R. §§ 1208.16 - 18.
In support of the application for relief, Lopez Troche submitted a written declaration. In it, he repeated many of the claims that he had made during his interview with the asylum officer and stated that he was "afraid" that he would "be beaten, arrested, tortured, and killed by the national police or others because [he is] gay."
Lopez Troche restated in his declaration that, prior to coming to the United States, he had performed at clubs in women's clothing and "would constantly get assaulted and beaten," including, in one incident, by two men he knew from his hometown. He also again discussed his relationship with Sota and Sota's family's subsequent threats and possible murder of Lopez Troche's brother.
In addition, Lopez Troche added detail regarding beatings that he suffered at the hands of his father and being sexually assaulted at a young age. Lopez Troche also described an incident in which "somebody let off gunshots and shattered the windows to [a] taxi cab" in which he was riding as a passenger.
In support of his application for relief, Lopez Troche also submitted a number of documents. They included country condition reports from the U.S. Department of State, medical records, a physician's letter addressing his HIV diagnosis, a statement of support from the AIDS Action Committee of Massachusetts, and a letter from Dr. John Grimaldi, a psychiatrist at Brigham and Women's Hospital. The letter stated that Dr. Grimaldi had been treating Lopez Troche for "depression, anxiety, and sequelae
of past trauma," and that Lopez Troche's "psychiatric symptoms and HIV disease adversely affected his cognitive functioning, specifically his memory, attention and concentration[, leading to] ... difficulty organizing and following through with basic tasks in daily living such as following a schedule, meeting deadlines, and fulfilling other responsibilities related to self-care." Lopez Troche then later supplemented these documents by submitting additional reports from the State Department, Human Rights Watch, Amnesty International, and media sources.
An Immigration Judge ("IJ") held a hearing on the merits of Lopez Troche's claims for relief on April 6, 2018. Lopez Troche testified at the hearing. Following the hearing, the IJ issued an oral decision denying the claims.
The IJ began by assessing Lopez Troche's argument that he had met his burden to show that he had been subject to past persecution. The IJ explained in doing so that it did "not find [Lopez Troche] to be a credible witness in terms of crucial aspects of his claim and his lack of credibility [was] ultimately fatal to his argument that he has suffered past persecution" and that it "g[ave] little or no weight" to the letter from Dr. Grimaldi. With that predicate adverse credibility finding in place, the IJ then explained that Lopez Troche's attempt to show past persecution failed because -- even assuming that he had suffered the requisite level of harm and been subject to it based on his membership in a protected group -- "there [was] insufficient evidence in this record to establish that the respondent ever reported any incidents in the past to the police, or that the officials in Honduras would be unable or unwilling to protect him." The IJ further explained that "the respondent himself was not credible in this regard."
To support this adverse credibility finding, the IJ explained that although Lopez Troche had, during the hearing, "argued that he never reported any of these incidents in the past to the police," he had "made a different statement to the asylum officer." Specifically, the IJ noted that in Lopez Troche's reasonable fear interview he had stated in response to the question "did you ever go to the police?" that The IJ then elaborated that "[t]he respondent's testimony on the witness stand, as compared to what he told the asylum officer, [was] different," and that he had not adequately explained the reason for the discrepancy.
As further support for finding that Lopez Troche failed to establish that he had been subject to past persecution, the IJ also identified what it deemed to be a second discrepancy between Lopez Troche's testimony and what he had told the asylum officer during his reasonable fear interview. The IJ determined that this discrepancy was "fatal to the respondent's credibility in terms of his argument that the government were actors in any of the harm that he suffered" and that it could not "find that the government are actors in any of the harm that the respondent has suffered, even if the Court f[ound] that the rest of the respondent's testimony [was] credible."
Here, the IJ pointed to what it deemed to be a discrepancy between Lopez Troche's testimony at the hearing and his declaration concerning the incident in which Lopez Troche claimed to have been shot at while he was in a taxi. The IJ focused on the fact that Lopez Troche stated in his declaration that "somebody let off gunshots" while he testified that "there w[as] a group of people from the national police [and] ... [o]ne of them shot ... at the cab."
The IJ concluded its consideration of Lopez Troche's claim that he had suffered past persecution by returning to the issue of whether Lopez Troche was credible:
As the Court found above, the Court cannot find the respondent credible in his assertions that the Government were actually actors in the harm that he suffered .... Therefore, the Court does not find that the respondent has established past persecution and the Court finds that the respondent does not enjoy a presumption of a well-founded fear of future persecution ....
The IJ then noted that Lopez Troche had not established "a pattern or practice of persecution of a group of persons similarly situated to the applicant," which would have allowed him to circumvent the requirement "to provide evidence that he would be singled out individually for such persecution." The IJ "incorporate[d] and adopt[ed] its findings" regarding the past persecution claim and, relying on them, found "there is no pattern or practice of persecution of gay Honduran men by the government in Honduras." The IJ noted in that connection that "[t]here is discrimination, there is harassment, but ... d[id] not find it rises to a sufficient level for the respondent to meet his burden of proof."
The IJ at that point turned to Lopez Troche's CAT claim, which it also rejected. The IJ explained that "[w]hile the respondent argues that he is afraid of the government, the respondent has failed to meet his burden with detailed evidence that he would be tortured in the future or even that he has been tortured in the past." In so...
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