Gonzales v. Garland

29 F.4th 989

Victor Hugo Paredes GONZALES; Pablo Paredes Gonzales; Jose Paredes Gonzales, Petitioners

v.Merrick B. GARLAND, Attorney General of the United States, Respondent

No. 20-2964

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2021

Filed: April 1, 2022

Victor Hugo Paredes Gonzales, Falcon Heights, MN, Pro Se.

Pablo Paredes Gonzales, Falcon Heights, MN, Pro Se.

Jose Paredes Gonzales, Falcon Heights, MN, Pro Se.

David L. Wilson, Wilson Law Group, Minneapolis, MN, for Petitioners.

Carl H. McIntyre, Remi da Rocha-Afodu, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Victor Hugo Paredes Gonzales, Pablo Paredes Gonzales, and Jose Paredes Gonzales (collectively, Petitioners),¹ sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An immigration judge (IJ) denied Petitioners all relief, and the Board of Immigration Appeals (BIA or Board) affirmed. Petitioners seek review of the denial of their CAT claim. Having jurisdiction under 8 U.S.C. § 1252, we deny the petition.

I.

Petitioners are brothers and citizens of Bolivia. They, along with a fourth partner named Luis Fernando Galleguillos Larrain, operated a company producing organic stevia called Tierra Dulce. Petitioners came to the United States on temporary visas in May 2015. They assert that they fled Bolivia because investors in Tierra Dulce, many of whom were retired Bolivian military and government officials, were unhappy with the lack of returns in 2014 and 2015 and threatened Petitioners with harm. Petitioners were charged with fraud in Bolivia and warrants were issued for their arrest in May 2015. Luis also fled Bolivia initially but returned in June 2015. He was jailed and has not received a trial on the charges against him. Bolivia subsequently obtained Interpol Red Notices seeking Petitioners’ arrest.²

Once their temporary visas expired, Petitioners sought asylum in the United States, and their I-589 applications were referred to the immigration court. In 2019, Petitioners were charged with removability and conceded the charges. They filed updated I-589 forms, and the IJ held hearings on their petitions in January 2020. The IJ denied Petitioners’ claims for asylum, withholding of removal, and CAT protection. In particular, the IJ was not satisfied that Petitioners’ testimony was credible because of inconsistencies and gaps in the record. The IJ also found that Petitioners had not shown it was more likely than not they would be tortured if returned to Bolivia. Petitioners appealed to the BIA, which affirmed the IJ's opinion. The BIA concluded that the IJ did not clearly err in making an adverse credibility finding or concluding that Petitioners had not demonstrated with sufficient certainty that they would be tortured. Petitioners had also filed a motion to remand on the basis of new evidence—a document indicating that the district attorney in Bolivia recommended dismissal of some of the charges against Petitioners. The BIA denied the motion, finding that the dismissal was not relevant to the dispositive issues of Petitioners’ claims for relief before the IJ.

Petitioners seek review, but only of the decision to deny them CAT relief. First, Petitioners argue that the BIA abused its discretion in making an adverse credibility finding against them. Second, Petitioners argue that the BIA applied the wrong legal standard in determining that they failed to show they would be subject to torture if returned to Bolivia. Additionally, while their petition was pending before this court, Petitioners asked Interpol to delete the Red Notices issued for Victor and Jose.³ In July 2021, Interpol granted the request. Petitioners then filed a motion asking this court to remand their petition for reconsideration in light of this development, or in the alternative, to hold the matter in abeyance pending a decision on Petitioners’ motion to reopen proceedings before the BIA.

II.

As an initial matter, we take up Petitioners’ motion to remand or to hold the case in abeyance. In support of their motion, Petitioners characterize Interpol as finding "irreconcilable fault with the veracity of the R[ed] Notices." And because the IJ gave "significant weight" to the now-rescinded Notices and to the Bolivian indictment generally, Petitioners say the IJ must be given an opportunity to reconsider her decision.

Petitioners’ motion for remand mischaracterizes both Interpol's decision and the impact of the Red Notices on the IJ's rulings. Petitioners assert that Interpol's action constitutes "a wholescale [sic], post decision, impeachment of the evidentiary basis for [the BIA's] decision" and argue that Interpol "has outright repudiated reliance on the very evidence that the Service touted before the [IJ]" and "unequivocally impeached a key piece of evidence."

Petitioners sought deletion of the Red Notices because the case was "of a predominantly political character." Reviewing the information provided, Interpol declined to find the case was predominantly political. However, Interpol did conclude that the Red Notices were not supported by "sufficient judicial data" as required by Interpol rules for a valid notice to issue. Interpol found the Red Notices failed to comply with Interpol rules applicable to cases involving multiple individuals. In particular, it found "the study of the summary of facts of [each] Red Notice ... raises questions as to the role that was allegedly played by the Applicant himself in the facts of which he is accused." In other words, the Red Notices did not meet Interpol standards because the case involved several individuals but the information provided by the Bolivian government did not describe the specific role played by either Victor or Jose in the crime alleged.

Furthermore, Interpol explicitly stated that "the Commission is not empowered to conduct an investigation, weigh evidence, or make a determination on the merits of the case" and that its analysis was limited to whether each file met Interpol's requirements for accuracy and relevancy. Thus, Interpol's decision to delete the Red Notices cannot be construed as offering an opinion on the merits of the criminal proceedings against Petitioners. Rather, the Red Notices were deleted because materials provided by the Bolivian government did not meet Interpol's sufficiency requirements.

Second, we disagree with Petitioners’ claim that the existence of the Red Notices was a material factor in the IJ's decision on their CAT claim. It is true the IJ noted that the Red Notices could be treated as "reliable [evidence of] a request by a member country to provisionally arrest a specifically identified person pending extradition based on a valid national arrest warrant for a crime that is not political in nature." However, this was not a factor in the IJ's adverse credibility finding. Rather, that finding was "[b]ased on the discrepancies" in the record and with Petitioners’ 2016 petitions for asylum. The IJ's discussion of credibility includes the pending lawsuit in Bolivia but does not mention the Red Notices.

Even if the Red Notices gave an additional imprimatur of legitimacy to the Bolivian proceedings, the BIA already held this factor was not material to Petitioners’ claims. Petitioners asked the BIA to remand in light of evidence that the prosecuting attorney in Bolivia recommended dismissing some of the criminal charges. The BIA denied the motion to remand, stating that "the submission is not material" because it would not affect the IJ's credibility determination or, if it would, the submission "is not material as it does not link the potential harm to a protected ground, and does not establish a likelihood of torture," which are the "dispositive issues."

Deletion of the Red Notices is likewise immaterial here. Even if we assume that the Red Notices contributed to the IJ's adverse credibility finding, the deletion of the Notices is not material to the dispositive issues on review, which turn on the likelihood of enduring torture upon removal to Bolivia. Bolivia's decision to request Red Notices without adhering to the applicable Interpol rules does not make it any more likely that Petitioners will be subject to torture if returned to Bolivia. As such, we deny the motion to remand or hold the case in abeyance.

III.

We now turn to the merits of the petition for review. "We review the Board's decision as the final agency action, including the IJ's findings and reasoning to the extent that the Board expressly adopted them." Mumad v. Garland, 11 F.4th 834, 837 (8th Cir. 2021). Here, the BIA expressly adopted the IJ's decision, so we "also review the IJ's decision as part of the final agency action." Galloso v. Barr, 954 F.3d 1189, 1191 (8th Cir. 2020) (quoting Davila-Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir. 2008) ). "We review the BIA's legal determinations de novo and employ the deferential ‘substantial evidence’ standard when reviewing the BIA's factual determinations." Id. (quoting Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004) ). "Accordingly, we will affirm the BIA's factual findings ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Rosales-Reyes v. Garland, 7 F.4th 755, 759 (8th Cir. 2021) (quoting Etchu-Njang v. Gonzales, 403 F.3d 577, 580 (8th Cir. 2005) ).

A.

First, Petitioners challenge the IJ's adverse credibility finding, as adopted and affirmed by the Board. A petitioner "faces a high hurdle to overcome an adverse credibility determination by the IJ. Such determinations are afforded great deference. We review for substantial evidence, and it is a rare case where an adverse credibility determination is disturbed on appeal." Tian v. Barr, 932 F.3d 664, 668 (8th Cir. 2019) (citation omitted). "Under our standard of review, credibility findings must be...