Case: 18-11097 Date Filed: 11/07/2018 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11097
Non-Argument Calendar
________________________
Agency No. A202-073-728
WENDY DIAZ-DE ROJAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 7, 2018)
Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Case: 18-11097 Date Filed: 11/07/2018 Page: 2 of 14
Wendy Diaz-De Rojas seeks review of the Board of Immigration Appeals’s
final order affirming the Immigration Judge’s denial of her application for asylum
and withholding of removal. On appeal, Diaz-De Rojas argues that the record
compels reversal of the agency’s adverse credibility finding and the resulting
denial of her asylum and withholding-of-removal claims. After careful review, we
hold (1) that we lack jurisdiction to review the BIA’s determination that Diaz-De
Rojas’s asylum claim was untimely and (2) that the record compels a finding of
past persecution and that the BIA did not expressly find that the government
rebutted the corresponding presumption of future persecution.
I
Wendy Diaz-De Rojas, a native and citizen of El Salvador, entered the
United States without inspection on September 1, 2014. Just more than a week
later, she was interviewed by a border patrol agent. According to the agent’s
record, Diaz-De Rojas stated that her purpose for entering was “to work and live in
the United States” for “eight years.” When asked if she feared persecution or
torture if she were to be sent back to her country, Diaz De-Rojas responded, “no.”
She said the same thing when asked if she had any fear about being returned to her
home country and when asked if she would be harmed if she were returned to her
home country.
2
Case: 18-11097 Date Filed: 11/07/2018 Page: 3 of 14
A couple of weeks after her border-patrol interview, Diaz-De Rojas had a
credible-fear interview with an asylum officer. According to the interview form,
Diaz stated that her husband, Jairo Rojas, abused her physically and
psychologically for many years beginning in 2012, and would continue to do so if
she were to return to El Salvador. Diaz also stated that Jairo “forced [her] to have
intercourse with him one time” and that at other times she consented “because
[she] was afraid that if [she] said no, he would hurt [her].” When asked if she ever
reported Jairo to the police, Diaz-De Rojas stated she did not because she “was
afraid people might start talking” about her, but she conceded that the police
“would have protected [her]” had she reported him. She also noted that she tried to
go to the police once, but Jairo threatened her, saying, “if you do that, I will do
something worse to you.” Finally, when asked why she told officials at the border
that she was not afraid to return to El Salvador, Diaz-De Rojas replied that she did
not remember them asking her that.
Nearly two years later, in June 2016, Diaz-De Rojas filed an application for
asylum, withholding of removal, and relief under the Convention Against Torture,
based on membership in a particular social group, specifically “Salvadoran women
in a domestic relationship which they cannot leave.” In the application, she
asserted that she was “abused physically and verbally, and threatened with
kidnapping and death numerous times by [her] ex-husband.” She further stated
3
Case: 18-11097 Date Filed: 11/07/2018 Page: 4 of 14
that Jairo raped her in 2012 after a heated argument, that she threatened to leave
him, and that he told her that she would end up in a coffin if she tried. In the
application, when asked if she feared harm or mistreatment if she were to return
home, she checked “yes” and explained that she was afraid of being “kidnapped,
raped, beaten and killed by [her] ex-husband, in retribution for leaving him.”
Diaz-De Rojas stated that she was also afraid to return because the police did not
protect women who were victims of domestic violence.
In support of her statements, Diaz-De Rojas attached several documents to
her application: a letter confirming her participation in domestic-violence
counseling group sessions; a psychological evaluation by a mental-health
professional; the El Salvador 2016 Human Rights Report, which noted that
“[v]iolence against women, including domestic violence, was a widespread and
serious problem”; and the El Salvador 2017 Crime & Safety Report, which noted
the prevalence of rape and stated that “many victims choose not to participate in
the investigation and prosecution of the crime for fear of not being treated
respectfully by authorities.”
Diaz-De Rojas also attached her divorce decree; a letter from her pastor that
stated that he witnessed her relationship with Jairo “became difficult by the year
2012”; a letter from her sister attesting that Diaz-De Rojas told her about Jairo’s
physical and sexual aggressions and that Diaz-De Rojas had no option but to come
4
Case: 18-11097 Date Filed: 11/07/2018 Page: 5 of 14
to the United States to get away from Jairo’s harassment; and a letter from her
mother stating that she noticed the physical and psychological abuse that Diaz-De
Rojas had suffered from Jairo and that Diaz-De Rojas would not be safe in El
Salvador because of him.
At her asylum and withholding-of-removal hearing, Diaz-De Rojas testified
that she remembered being asked by the border-patrol agent a few days after her
entry if she was afraid to return to El Salvador. When asked why she told the
agent “no” she stated that she was afraid and “didn’t understand the word in truth.”
Diaz-De Rojas also testified that she “was ill” when the border agent asked her if
she feared persecution or torture if she were sent back to her home country, and
that, while she generally understood the meaning of “persecuted or tortured,” on
“[t]hat day they asked [her she] didn’t understand the word.” Diaz-De Rojas also
recalled telling the border agent that she came to live and work in the United States
for a certain number of years.
At the end of the hearing, the IJ issued an oral decision denying Diaz-De
Rojas’s claims. The IJ first found that her asylum claim was time-barred because
she filed it more than a year after entering the United States. The IJ then made an
adverse credibility finding based on several inconsistencies between Diaz-De
Rojas’s testimony and her prior statements (both those given under oath and those
found in the psychological report). The inconsistencies included, among others,
5
Case: 18-11097 Date Filed: 11/07/2018 Page: 6 of 14
that Diaz-De Rojas (1) swore to a border-patrol agent that she did not fear harm if
she had to return to El Salvador but later testified that she did fear harm; (2) stated
in her credible-fear interview that the abuse began in 2012 but testified that the
abuse began in 2010; (3) told a psychologist that she slept in a car to escape Jairo’s
rage but testified that Jairo dragged her to their car and made her sleep there on
multiple occasions; and (4) told the asylum officer that the police would have
protected her had she gone to them but testified that she did not go to the police
because they would not do anything. The IJ also found that, even if Diaz were
credible and had suffered past persecution, she was not eligible for withholding of
removal or CAT relief because the government had shown that she could avoid
persecution by relocating in El Salvador and Diaz had not shown that more likely
than not she would be tortured with the acquiescence of the Salvadorian
government. Accordingly, it denied her claims for asylum, withholding of
removal, and CAT relief.
Diaz-De Rojas appealed the IJ’s decision. On appeal, the BIA affirmed the
IJ’s finding that she was ineligible for asylum and withholding of removal.1 First,
the BIA agreed with the IJ that Diaz-De Rojas was ineligible for asylum because
her claim was untimely and she did not establish that extraordinary circumstances
excused her late filing. Second, the BIA determined that she did not satisfy her
1
The BIA also noted that Diaz-De Rojas had waived her Convention Against Torture claim by
failing to argue it on appeal.
6
Case: 18-11097 Date Filed: 11/07/2018 Page: 7 of 14
burden of proving eligibility for withholding of removal. The BIA concluded that
there was no clear error in the IJ’s adverse credibility finding because the IJ based
its findings on specific and cogent reasons, including inconsistencies in Diaz’s
testimony, statements to border patrol, statements in her credible-fear interview,
and statements in her psychological evaluation. The BIA concluded that these
inconsistencies sufficiently supported the IJ’s adverse credibility determination,
and further found that, without credible testimony, the record was insufficient to
establish that she suffered past persecution or would face future persecution on
account of a protected ground.
II
We first consider whether we have jurisdiction over Diaz-De Rojas’s asylum
claim, which the IJ and BIA dismissed for untimeliness. Although neither party
raised this argument, we are “obligated to inquire into subject-matter jurisdiction
sua sponte whenever it may be lacking.” Chacon-Botero v. U.S. Atty. Gen., 427
F.3d 954, 956 (11th Cir. 2005) (quoting Cadet v. Bulger, 377 F.3d 1173, 1179
(11th Cir. 2004)).
Under the INA, this Court lacks jurisdiction to review the IJ’s and BIA’s
determination that an asylum applicant filed an untimely application and failed to
7
Case: 18-11097 Date Filed: 11/07/2018 Page: 8 of 14
establish changed or extraordinary circumstances to excuse her untimely filing.2
See INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). This is true even when the agencies
reach an alternative finding that the claim also fails on its merits. Chacon-Botero,
427 F.3d at 956–57 (holding that this Court lacked jurisdiction over a petitioner’s
asylum claim denied as untimely, even when the agency had found in the
alternative that the claim failed on the merits).
Because the BIA in this case dismissed Diaz-De Rojas’s asylum claim as
untimely, we lack jurisdiction to review this claim. See INA § 208(a)(3),
8 U.S.C. § 1158(a)(3). Consequently, we also lack jurisdiction to review the BIA’s
alternative determination that, based on its adverse credibility finding, the asylum
claim fails on the merits. Chacon-Botero, 427 F.3d at 957. Accordingly, we
dismiss Diaz-De Rojas’s asylum claim for lack of jurisdiction.
III
We next consider Diaz-De Rojas’s challenge to the BIA’s denial of her
withholding-of-removal claim based on its adverse credibility finding. We review
the BIA’s factual determinations, including credibility determinations, under the
substantial-evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th
Cir. 2005) (citing D–Muhumed v. United States Att’y Gen., 388 F.3d 814, 817–18
2
We review the BIA’s decision, except to the extent the BIA expressly adopts the IJ’s
decision—in which case we also review the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577
F.3d 1341, 1350 (11th Cir. 2009). Here, the BIA did not expressly adopt the IJ’s decision, so we
review the BIA’s decision.
8
Case: 18-11097 Date Filed: 11/07/2018 Page: 9 of 14
(11th Cir. 2004)). Under this test, we must affirm the BIA’s factual findings if
they are “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230
(11th Cir. 2005) (quotation omitted). In making this determination, “[w]e view the
record evidence in the light most favorable to the agency’s decision and draw all
inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027
(11th Cir. 2004) (en banc). Indeed, to reverse the BIA’s factual findings “[we]
must find not only that the evidence supports a contrary conclusion, but that it
compels one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir.
2001) (citation omitted).
Turning to the relevant provisions of the INA, an applicant is entitled to
withholding of removal if she can show that her life or freedom would be
threatened in the country of removal on account of her race, religion, nationality,
membership in a particular social group, or political opinion. INA § 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A). An applicant bears the burden of showing that she will
“more likely than not” suffer persecution on account of being a member of one of
these protected groups. Sepulveda, 401 F.3d at 1232. If an applicant
demonstrates past persecution, she is entitled to a rebuttable presumption that she
has a well-founded fear of future persecution. Ruiz v. U.S. Atty. Gen., 440 F.3d
1247, 1257 (11th Cir. 2006). The government may, in turn, “rebut this
9
Case: 18-11097 Date Filed: 11/07/2018 Page: 10 of 14
presumption if it shows, by a preponderance of the evidence, that either (1) the
conditions in the country have changed or (2) the applicant could
avoid future persecution by relocating within the country if, ‘under all the
circumstances, it would be reasonable to expect the applicant to do so.’” De
Santamaria v. U.S. Atty. Gen., 525 F.3d 999, 1012 (11th Cir. 2008) (citing 8 C.F.R.
§ 208.13(b)(1)(i)).
An applicant must establish eligibility for relief by offering “credible, direct,
and specific evidence in the record.” Forgue, 401 F.3d at 1287 (citation omitted).
A credibility determination should be based on the totality of the circumstances,
including: (1) “the demeanor, candor, or responsiveness of the applicant”; (2) the
“inherent plausibility” of the applicant’s account; (3) the consistency between the
applicant’s statements; (4) the “internal consistency” of each statement; and (5) the
consistency of the applicant’s statements with other record evidence.3 INA
§ 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C). “Indications of reliable testimony
include consistency on direct examination, consistency with the written
application, and the absence of embellishments.” Ruiz, 440 F.3d at 1255. In
contrast, an adverse credibility determination may be based on inconsistencies,
3
We have faulted, for example, an IJ’s reliance solely on inconsistencies between an applicant’s
testimony at her airport interview and her subsequent testimony, because the IJ failed to consider
the circumstances in which the airport statements were made. Tang v. U.S. Att’y Gen., 578 F.3d
1270, 1279 (11th Cir. 2009). In considering whether statements qualify as contradictions rather
than mere elaboration, this Court has instructed that an IJ should consider that an alien in the
airport is not represented by counsel and may be intimidated by police questioning, particularly
if the alien was a victim of government abuse. Id.
10
Case: 18-11097 Date Filed: 11/07/2018 Page: 11 of 14
inaccuracies, or falsehoods, regardless of whether they relate to the “heart” of an
applicant’s claim. INA § 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C).
If the BIA finds an applicant not credible, it must make an explicit adverse
credibility finding and offer “specific, cogent reasons” for its finding. Shkambi v.
U.S. Atty. Gen., 584 F.3d 1041, 1049 (11th Cir. 2009) (internal citation omitted).
The BIA need not accept an applicant’s proffered explanation for inconsistencies
in her testimony if the explanation does not compel a finding that the applicant was
credible. Id. at 1050. Once the BIA has made an adverse credibility finding, the
applicant bears the burden of showing that the finding was not supported by
“specific, cogent reasons or was not based on substantial evidence.” Forgue, 401
F.3d at 1287.
If an alien is found credible, her testimony may be sufficient, without
corroboration, to carry her burden of proof in establishing eligibility for relief
from removal. Id. “Conversely, an adverse credibility determination alone may be
sufficient to support the denial of an asylum application.” Id. An adverse
credibility determination does not, however, eliminate the factfinder’s duty to
consider other evidence an applicant submits. Id.
The BIA in this case provided specific, cogent reasons for its adverse
credibility finding, including several inconsistencies in Diaz-De Rojas’s testimony,
statements to border patrol, statements in her credible-fear interview, and
11
Case: 18-11097 Date Filed: 11/07/2018 Page: 12 of 14
statements in her psychological evaluation. 4 Specifically, the BIA noted that—in
direct contradiction to the testimony she gave in her credible-fear interview—Diaz-
De Rojas told border patrol that she had no fear of persecution or torture if she
returned to El Salvador and that she came to the United States only to work and
live for eight years. See INA § 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C). The BIA
found her explanation that she did not understand the words “torture or
persecution” unpersuasive, given her other answers to border patrol and her
college-level education. The BIA also identified Diaz’s inconsistent testimony
regarding the length and severity of her abuse, including the year in which it began
and whether her husband forced her to sleep in their car or whether she voluntarily
slept there to avoid his rage. 5
While these inconsistencies are subtle rather than blatant, the INA instructs
that an adverse credibility determination may be based on inconsistencies,
regardless of whether they relate to “the heart of an applicant’s claim.” INA
§ 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C). We may not reverse the BIA’s factual
4
The parties disagree about whether the BIA improperly considered as inconsistent Diaz-De
Rojas’s testimony concerning how many times she was forcibly raped despite saying “no” and
how many times she instead consented out of fear. Because we conclude that the BIA’s decision
is sufficiently supported by other inconsistencies, we need not consider whether the BIA
properly relied on supposed inconsistencies in Diaz-De Rojas’s rape-related statements.
5
The IJ also noted several inconsistencies in Diaz-De Rojas’s testimony concerning her decision
not to go to the police, including that she initially noted that she did not go to the police because
they would not have done anything, but told the asylum officer that the police would have
protected her had she gone to them.
12
Case: 18-11097 Date Filed: 11/07/2018 Page: 13 of 14
findings simply because “the evidence supports a contrary conclusion”; rather, we
may reverse only if the evidence truly “compels” a contrary conclusion.
Farquharson, 246 F.3d at 1320. That is not the case here. Although the decision
is a close call, “the mere fact that the record may support a contrary conclusion is
not enough to justify a reversal.” Ruiz, 440 F.3d at 1255.
The BIA did not explain, however, its basis for finding that “[w]ithout
credible testimony, the record evidence is insufficient to establish that the
respondent suffered past persecution or will face future persecution on account of a
protected ground.” The letters from Diaz-De Rojas’s mother, sister, and pastor
support the conclusion that she was in a toxic marriage in El Salvador and that her
ex-husband frequently abused her. And the country reports support the conclusion
that spousal abuse against women is socially acceptable in El Salvador.
Combined, these items compel a finding of past persecution, which gives rise to a
rebuttable presumption of future persecution. See 8 C.F.R. § 208.16(b)(1)(i); Ruiz,
440 F.3d at 1257. Although the record also indicates changes in circumstances that
could perhaps rebut the presumption of future persecution, the BIA’s opinion does
not find that the government carried this burden, and indeed, appears to rest on a
finding that there was no showing of past persecution in the first place.
In sum, we uphold the BIA’s adverse credibility finding because, although
the record as a whole could be read to support a finding of credibility, it does not
13
Case: 18-11097 Date Filed: 11/07/2018 Page: 14 of 14
compel such a finding. But because the record compels a finding of past
persecution, and because the BIA did not expressly find that the government
rebutted the corresponding presumption of future persecution, we must grant the
petition in part and remand to the BIA for consideration of whether Diaz-De Rojas
has shown that she is eligible for withholding of removal despite the adverse
credibility finding.
IV
Because we lack jurisdiction to review the BIA’s timeliness determination,
we dismiss the portion of Diaz-De Rojas’s appeal relating to her petition for
asylum. But because the BIA’s decision does not address whether the government
rebutted the presumption that Diaz-De Rojas will suffer future persecution, we
grant the petition in part and remand to the BIA for further consideration of her
withholding of removal claim.
PETITION DISMISSED IN PART AND GRANTED IN PART.
14