Filed: Aug. 22, 2017
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-4254 _ LIZETH ROMERO ZAMBRANO; D.A.E.R., Petitioners v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A208-551-639; A208-551-640) Immigration Judge: Roxanne C. Hladylowycz _ Submitted under Third Circuit L.A.R. 34.1(a) July 12, 2017 Before: MCKEE, AMBRO and RESTREPO, Circuit Judges. (Filed: August 22, 2017) _ OPINION* _ * Thi
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-4254 _ LIZETH ROMERO ZAMBRANO; D.A.E.R., Petitioners v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A208-551-639; A208-551-640) Immigration Judge: Roxanne C. Hladylowycz _ Submitted under Third Circuit L.A.R. 34.1(a) July 12, 2017 Before: MCKEE, AMBRO and RESTREPO, Circuit Judges. (Filed: August 22, 2017) _ OPINION* _ * This..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4254
_____________
LIZETH ROMERO ZAMBRANO; D.A.E.R.,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency Nos. A208-551-639; A208-551-640)
Immigration Judge: Roxanne C. Hladylowycz
______________
Submitted under Third Circuit L.A.R. 34.1(a)
July 12, 2017
Before: MCKEE, AMBRO and RESTREPO, Circuit Judges.
(Filed: August 22, 2017)
______________
OPINION*
______________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.
Lizeth Romero Zambrano and her four-year-old son D.A.E.R (collectively,
“Petitioners”) petition for review of the decision of the Board of Immigration Appeals
(“BIA”) dated November 16, 2016, which affirmed the Immigration Judge’s (“IJ”)
decision to deny their applications for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). For the reasons that follow, we will
deny the petition in part and grant it in part.
I
Zambrano and D.A.E.R. are natives and citizens of Colombia. On September 21,
2015, they presented themselves at the United States border seeking protection from
persecution by the Fuerzas Armadas Revolucionarias de Colombia (“FARC”), a guerilla
revolutionary group in Colombia.
At her asylum hearing before the IJ, Zambrano testified that, prior to coming to the
United States, she had owned an apparel store in Cali, Colombia. On August 1, 2014,
members of the FARC began to visit her store. On these visits, the FARC demanded
money and merchandise, and informed Zambrano that there would be consequences if
she did not comply with their demands. The FARC’s visits continued for four weeks, at
which point Zambrano decided to relocate to Jamundi, Colombia and reopen the store,
which she did in October 2014.
Shortly thereafter, members of the FARC discovered Zambrano’s store in Jamundi
and renewed their efforts to extort her. Jamundi locals informed Zambrano that she and
her family could be kidnapped or killed if she were to tell anyone about the FARC’s
2
visits. In January 2015, Petitioners again relocated to evade the FARC, this time to
Jumbo, Colombia. In March 2015, Zambrano learned that the FARC were searching for
her in Jumbo.
In September 2015, Zambrano went to the Colombia Attorney General’s Office
for advice. It recommended to Zambrano that she go to the police and consider moving
abroad to avoid the FARC. Zambrano did not contact the police, but decided to leave
Colombia with D.A.E.R. and fly to the United States, where they were apprehended at
the border.
In November 2015, Zambrano applied for asylum, withholding of removal, and
protection under CAT. Zambrano indicated on her application that D.A.E.R. was to be
included as part of her application. On January 4, 2016, prior to the hearing on
Zambrano’s November 2015 application, a separate application for asylum, withholding
of removal, and protection under CAT was submitted on D.A.E.R.’s behalf.
Petitioners presented the IJ with a variety of evidence in support of their
applications, including Zambrano’s oral testimony and sworn statements and reports
describing the conditions in Colombia as they pertained to the FARC (“country
conditions report”). Petitioners also provided a letter from Zambrano’s brother and a
copy of the complaint Zambrano submitted to the Colombia Attorney General.
On January 20, 2016, the IJ denied Petitioners’ claims after finding that Zambrano
was not credible. The IJ identified several inconsistencies between Zambrano’s various
sworn statements. The IJ also found that Zambrano lied about her mother’s whereabouts
to the IJ at her hearing, as well as to her asylum officer upon entry to the United States.
3
Petitioners appealed the IJ’s decision to the BIA. The BIA dismissed the appeal,
finding that the IJ’s adverse credibility determination was not clearly erroneous. The
BIA’s opinion included a footnote stating that D.A.E.R.’s claims for relief were
dependent on, or “riding on,” Zambrano’s application.
On December 5, 2016, Petitioners submitted to this Court their petition for review
of the BIA’s decision denying their applications. They argue that: (a) the IJ’s adverse
credibility finding was not supported by substantial evidence; (b) the BIA and IJ failed to
consider independent evidence supporting the CAT claim; and (c) the BIA and IJ failed
to consider D.A.E.R.’s separate application for relief.
II1
A. Asylum and Withholding of Removal
The BIA upheld the IJ’s decision to deny Zambrano’s claims for asylum and
withholding of removal solely because of the IJ’s adverse credibility determination. We
review an adverse credibility determination, like other administrative findings of fact,
under the substantial evidence standard. Balasubramanrim v. I.N.S., 143 F.3d 157, 161
(3d Cir. 1998). Under this standard, an agency’s adverse credibility determination “[is]
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). An adverse credibility determination can be based
on inconsistency between a petitioner’s statements in the record and “any inaccuracies or
1
This Court has jurisdiction to review final orders of the BIA pursuant to 8 U.S.C.
§ 1252. Where, as here, the “BIA has affirmed the IJ’s decision, and adopted the analysis
as its own, we will review both decisions.” Dong v. Att’y Gen., 638 F.3d 223, 227 (3d
Cir. 2011).
4
falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
Here, the IJ’s adverse credibility determination is supported by substantial
evidence. The IJ noted numerous falsehoods and inconsistencies between Zambrano’s
testimony and the sworn statements in her original application, which were reiterated by
the BIA. First, the IJ noted that Zambrano stated in her application, through her attorney,
that “local criminals” had initially attempted to extort them in Jamundi. However, in her
hearing testimony Zambrano stated that they were members of the FARC. Second, the IJ
found inconsistencies in Zambrano’s answers regarding her visa applications to the
United States. Finally, the IJ found that Zambrano admitted to lying, both to the asylum
officer upon her entry to the United States and to the IJ at her asylum hearing, about her
mother’s whereabouts. Zambrano initially stated to the IJ and her asylum officer that her
mother was residing in Colombia, but later admitted that her mother was living with
family in Atlanta, Georgia. These inconsistencies and falsehoods, particularly
Zambrano’s admission that she had lied to the asylum officer and the IJ, amount to
substantial evidence in support of the IJ’s adverse credibility determination.
The IJ’s adverse credibility determination, supported by substantial evidence,
provides sufficient basis to deny Zambrano’s asylum claim. See Dia v. Ashcroft, 353
F.3d 228, 247 (3d Cir. 2003) (stating “[a]n alien’s credibility, by itself, may satisfy his
burden, or doom his [asylum] claim”); Zheng v. Att’y Gen.,
549 F.3d 260, 266 (3d Cir.
2008) (“An applicant bears the burden of proving eligibility for asylum based on specific
facts and credible testimony.” (emphasis added)). The IJ’s adverse credibility
5
determination also disposes of Zambrano’s withholding-of-removal claim. Lukwago v.
Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003) (“The standard for withholding of removal is
higher than, albeit similar to, the standard for asylum. . . . If [a petitioner] is unable to
satisfy the standard for asylum, he necessarily fails to meet the standard for withholding
of removal . . . .”). Accordingly, we will deny the petition for review as to Zambrano’s
claims for asylum and withholding of removal.
B. Protection Under CAT2
The IJ’s and the BIA’s decision to reject Zambrano’s CAT claim relied solely on
the IJ’s adverse credibility determination. In her decision, the IJ stated that “[Zambrano]
has set forth absolutely no credible claim that it is more likely than not that she would be
tortured if forced to return to Colombia, and therefore her application for withholding of
removal under the [CAT] must . . . be denied.” App. 30. Similarly, the BIA stated that
“[t]o the extent that [Zambrano’s] claim for CAT relief relies on her testimony, the
Immigration Judge’s adverse credibility finding necessarily precludes [her] from
establishing eligibility for protection under the CAT through credible testimony.” App.
12.
When a petitioner’s CAT claim relies solely on his or her credibility, an adverse
credibility determination will preclude relief. See Zheng v. Gonzales, 417 F.3d 379, 383
2
A CAT claim requires a petitioner to show that “it is more likely than not that he
or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). Torture must be inflicted “by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity.” 8
C.F.R. § 208.18(a)(1).
6
(3d Cir. 2005). However, when a petitioner provides evidence independent of his or her
credibility to corroborate that claim, an adverse credibility determination alone is
insufficient to defeat a CAT claim. Tarrawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir.
2003). Here, Zambrano presented independent evidence to support her CAT claim. She
presented the IJ with a letter from her brother, which detailed the harm that Petitioners
faced from the FARC and their reasons for fleeing Colombia. She also presented the IJ
with a country conditions report, which indicated the risk to civilian lives posed by both
the FARC and the Colombian military resulting from fighting between the two groups.
This evidence supports her CAT claim, but was not addressed by the IJ and the BIA in
their decisions denying the claim. We therefore will grant the petition for review with
respect to Zambrano’s CAT claim and remand to the BIA with instructions to consider
the independent evidence of record.
C. D.A.E.R.’s Claims to Relief
Petitioners also argue to this Court that the BIA failed to consider D.A.E.R.’s
separate application for relief. The BIA’s opinion stated in a footnote that D.A.E.R. was
“riding on” Zambrano’s application. But the record is unclear on this issue.
Zambrano’s initial application noted that D.A.E.R. was to be included in her
application. On January 4, 2016, D.A.E.R. submitted a separate application for relief.
On January 20, 2016, at the hearing before the IJ, Petitioners’ counsel seemed to indicate
that D.A.E.R. was “riding on” Zambrano’s application. However, neither the IJ nor
Petitioners’ counsel addressed the status of D.A.E.R.’s separate application during the
hearing. Further, the IJ’s opinion does not acknowledge the separate application.
7
Petitioners argued to the BIA that the IJ erred by failing to consider D.A.E.R.’s
separate application. They asserted that D.A.E.R. received specific threats of death and
that he “feared persecution on account of a different protected ground than his
mother’s.”3 A.R. 14. The BIA never addressed this argument or D.A.E.R.’s separate
application. So we will remand D.A.E.R.’s claims to the BIA for consideration in light of
this record. See I.N.S. v. Ventura, 537 U.S. 12, 17 (2002).
III
For the foregoing reasons, we will deny the petition for review as to Zambrano’s
claims for asylum and withholding of removal. We will grant the petition as to
Zambrano’s CAT claim and as to D.A.E.R.’s claims for relief, and we will remand to the
BIA for further proceedings consistent with this opinion.
3
Further, the country conditions reports submitted by Petitioners indicate that the
FARC may pose a particular threat to children, as they recruit and kidnap children to join
their forces.
8
