Ayala-Osegueda v. Garland

92 F.4th 220

Luis Alonso AYALA-OSEGUEDA; Sandra Liseth Martinez-De Ayala; D.E.A.M., Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-1707

United States Court of Appeals, Fourth Circuit

Argued: October 26, 2023

Decided: February 1, 2024

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED: James Doyle Brousseau, BROUSSEAU & LEE, PLLC, Falls Church, Virginia, for Petitioners. Remi da Rocha-Afodu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Dawn S. Conrad, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before NIEMEYER, QUATTLEBAUM, and RUSHING, Circuit Judges.

Petition for review denied by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Niemeyer and Judge Rushing joined.

QUATTLEBAUM, Circuit Judge:

Luis Alonso Ayala-Osegueda and Sandra Liseth Martinez-De Ayala, along with their minor son, D.E.A.M., all natives and citizens of El Salvador, claim they were threatened and harmed by local MS-13 gang members because their relative, Guadalupe Osegueda, broke up with the gang's leader, Franscisco Javier Sarabia. They also insist they will be harmed for that same reason if returned to El Salvador. As a result, they petition for review of an order of the Board of Immigration Appeals upholding the Immigration Judge's ("IJ's") oral decision denying their applications for asylum and withholding of removal.

The petition involves two central issues. First, it challenges the IJ's mixed credibility finding. Petitioners argue the IJ's adverse credibility finding was not sufficiently explicit under 8 U.S.C. §§ 1158(b)(1)(B)(iii) and 1229a(c)(4)(C). Along the way, they also argue that an IJ cannot make a mixed credibility finding. Petitioners suggest that an IJ must give either a thumbs up or thumbs down on the whole of an applicant's credibility. Second, it challenges the Board's decision to affirm the IJ's determination that petitioners did not establish a nexus between any past or feared future harm and any familial relationship.

Having considered the arguments presented and reviewed the record, we conclude that the Board did not err and that substantial evidence supports the denial of relief. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Accordingly, we deny the petition for review.

I.

Before delving into the particulars of this petition, we begin with the legal background behind petitioners' claims. To qualify for asylum under the Immigration and Nationality Act ("INA"), petitioners had the burden of showing they are "refugee[s]." 8 U.S.C. § 1158(b)(1)(A); INS v. Orlando Ventura, 537 U.S. 12, 13, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). A "refugee" is someone "who is unable or unwilling to return to" his native country "because of persecution or a well-founded fear of persecution on account of . . . membership in a particular social group," or other protected categories. 8 U.S.C. § 1101(a)(42). An asylum applicant "may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution." 8 C.F.R. § 1208.13(b).

Petitioners faced an even higher burden of proof "to qualify for withholding of removal to a particular country under the INA." Dankam v. Gonzales, 495 F.3d 113, 115 (4th Cir. 2007). Applicants have the burden of showing "a 'clear probability of persecution' on account of a protected ground." Id. (quoting INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)). If they meet this heightened burden, withholding of removal is mandatory. Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011). "But because the standard for withholding of removal is higher than the standard for asylum, if applicants cannot demonstrate asylum eligibility, their applications for withholding of removal will necessarily fail as well." Id.

Because the burden to prove both asylum and withholding of removal lies with petitioners, "the credibility of [their] testimony is often paramount." Herrera-Alcala v. Garland, 39 F.4th 233, 245 (4th Cir. 2022). "The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, 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." 8 U.S.C. § 1158(b)(1)(B)(ii).

"There is no presumption of credibility" in proceedings before the IJ, 8 U.S.C. § 1158(b)(1)(B)(iii), or before this court in considering the petition for review, see Garland v. Ming Dai, 593 U.S. 357, 141 S.Ct. 1669, 1677, 210 L.Ed.2d 11 (2021). However, if the IJ declines to give an " 'explici[t]' 'adverse credibility determination,' 'the applicant or witness shall have a rebuttable presumption of credibility' " before the Board on appeal. Id. (quoting §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C)). Accordingly, "[a]n adverse credibility determination supported by substantial evidence generally dooms an asylum claim unless the application can prove actual past prosecution through independent objective evidence." Herrera-Alcala, 39 F.4th at 245. Indeed, "[a] single testimonial discrepancy, particularly when supported by other facts in the record, may be sufficient to find an applicant incredible in some circumstances." Ilunga v. Holder, 777 F.3d 199, 207 (4th Cir. 2015). "An adverse credibility determination is supported by substantial evidence so long as the record as a whole supports it by 'more than a mere scintilla' of evidence." Herrera-Alcala, 39 F.4th at 245 (quoting Biestek v. Berryhill, — U.S. —, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019)).

II.

With that background in mind, we turn to the details of petitioners' claims. Petitioners entered the United States without inspection near Hidalgo, Texas, around November 30, 2016. Ten months later, they filed separate applications seeking asylum, withholding of removal and protection under the Convention Against Torture ("CAT").¹ The applications were later consolidated.

Petitioners appeared at a removal hearing in June 2019. The adult petitioners both testified that, in 2009, their relative Guadalupe² dated Francisco, a leader of the local MS-13 gang. But according to petitioners, after Mr. Ayala-Osegueda's mother, Blanca, expressed her disapproval of the relationship, Guadalupe decided to end the relationship and fled to the United States to escape Francisco. Petitioners claimed that gang members tried to punish Guadalupe's relatives in retaliation for the breakup.

Ms. Martinez-De Ayala testified first. She stated that she had been threatened in El Salvador by MS-13. In particular, she said Francisco had extorted her family through three anonymous letters left under the door of a fast-food business the family started in April 2016. According to Ms. Martinez-De Ayala, the letters contained demands for money and threats to kill the family if they did not comply. She testified that she threw the letters away and did not retain copies. Ms. Martinez-De Ayala also claimed that Francisco continues to extort Blanca. In fact, Ms. Martinez-De Ayala said that the whole family would be killed by Francisco immediately upon return to El Salvador.

On cross-examination, however, Ms. Martinez-De Ayala conceded that neither Francisco nor his associates have ever stated that they sent the letters. And none of the letters identified that they were from Francisco or his associates. Instead, she assumed the letters came from Francisco and the gang because "they [were] the only ones in town." J.A. 145. She also conceded that the letters were delivered only after they opened the fast-food restaurant in April 2016, seven years after Guadalupe's purported breakup with Francisco.

Ms. Martinez-De Ayala was also questioned about affidavits that she and her husband submitted twelve days before their hearing. In those affidavits, both adult petitioners told a different story about what happened to Guadalupe. They stated that "[t]he family is not sure where [Guadalupe] currently is," J.A. 179, "[t]he family always believe[d] that she has been taken by MS-13 gang members," J.A. 179, and that "no one knows where she went. She just disappeared. She may have been taken by the gang members," J.A 181. But at their hearing, petitioners admitted that Guadalupe lived in Virginia—indeed, in the same town as petitioners. When cross-examined on this point, Ms. Martinez-De Ayala said, "Maybe [the statements in the affidavits were] a mistake." J.A. 146.

Finally, Ms. Martinez-De Ayala testified that her husband had been attacked by four unknown assailants shortly before the family left El Salvador in November 2016. When cross-examined on her statement in her affidavit that the attack instead occurred in October 2016, the IJ "advise[d] [her] not to look at the other witness in this case for assurance." J.A. 147. The IJ then turned to Mr. Ayala-Osegueda, and stated, "And you too, sir. I see you nodding back and forth to the respondent. That is disfavored by this court. You cannot communicate with the witness on the witness stand. It does affect the court's assessment of the credibility in this case." J.A. 147.

After that, Mr. Ayala-Osegueda testified. He first stated that he was attacked by four people on his way to work in October 2016. The attackers told him that if he "did not pay what they were asking [him] to pay, they would kill [his] wife, [his] son, and [him]." J.A. 156. He had never seen the four attackers before and could not identify them. On cross-examination, he conceded that none of the assailants mentioned Guadalupe when they attacked him and that he wrote in his asylum application that he believed they beat him up because he owned a...