Submitted: June 13, 2016
for Review of an Order of the Board of Immigration Appeals
RILEY, Chief Judge, MURPHY and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
A. Arevalo-Cortez ("Arevalo"), a citizen of
Guatemala, petitions for review of the Board of Immigration
Appeals' (BIA's) decision affirming the immigration
judge's (IJ's) denial of her application for asylum,
withholding of removal, and protection under the Convention
Against Torture ("CAT"). We deny the petition.
entered the United States in October 2014 without inspection.
She was apprehended by border patrol officers and placed in
removal proceedings. Once apprehended, Arevalo expressed fear
of returning to Guatemala, and was given a credible fear
interview with an Asylum Officer of the Department of
Homeland Security. The officer found that Arevalo
demonstrated a credible fear of persecution and referred her
case to an IJ for further consideration. A Notice to Appear
was filed, charging Arevalo with being removable as an
immigrant who was present in the United States without
admission or parole after inspection by an immigration
officer, pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I).
January 6, 2015, Arevalo appeared with counsel before an IJ
in Fort Snelling, Minnesota, for a master calendar hearing.
At the hearing, she admitted the factual allegations and
conceded the charge of removability. Arevalo declined to
designate a country of removal, so the government designated
Guatemala. Arevalo indicated that she intended to seek
asylum, withholding of removal, and protection under the CAT.
At a subsequent hearing, Arevalo applied for the
aforementioned relief and protection, and a merits hearing
was set for April 21, 2015.
merits hearing, Arevalo testified that her live-in boyfriend
in Guatemala, Jose Jorge Margarito Chan-Davila
("Chan"), a police officer, had been abusing her
physically and psychologically, and that she feared that if
she returned to Guatemala, he would harm her. She testified
that the physical abuse had begun in January 2013, and
continued until she departed, including grabbing her hair,
beating her, kicking her, locking her in their home, and
threatening to kill her. Arevalo also stated that she had
tried to report the abuse to the police, but could not. She
explained that she had spoken about the abuse with a
neighbor, that she had seen a doctor on August 15, 2014 who
prescribed medication for her abuse-caused injuries, and that
she had received treatment from a midwife for her back
injuries resulting from the abuse.
also testified about her departure. She stated that on
September 5, 2014, she finally decided to risk fleeing
Guatemala because she believed that if she returned home,
Chan would kill her. Once in the United States, she planned
to stay with her uncle, a lawful permanent resident.
the hearing, Arevalo stated that she was confident that her
passport had expired in 2012, so she left it in Guatemala.
She later said it expired in 2014. When presented with
evidence that her passport expired in 2015, she stated that
she did not remember when it had expired. Later in the
hearing, Arevalo claimed to have lost her passport, and
maintained that this was the reason she did not remember the
date of expiration. She further testified that she had not
previously attempted to come to the United States. When
confronted with evidence that she had in fact applied for a
visa in 2010, she explained that she had wanted to attend
school in the United States with friends. The visa record
indicated, however, that she had applied to visit her uncle.
When presented with this information, Arevalo claimed to not
further presented three written witness statements to support
her claims of abuse at the hands of Chan. The first was a
statement prepared by a Guatemalan medical doctor stating
that she treated Arevalo for injuries inflicted upon her by
her partner. The second was a statement prepared by a midwife
indicating that she treated Arevalo for her back injuries,
and the third was a statement prepared by a neighbor stating
that she witnessed Chan's physical abuse of Arevalo and
that the abuse was the reason Arevalo fled Guatemala for the
United States. Arevalo testified that, after she arrived in
the United States, she asked family members in Guatemala to
obtain written statements from these individuals and forward
the same to Arevalo. However, the doctor's statement is
dated August 15, 2014, the midwife's statement is dated
August 20, 2014, and the neighbor's statement is dated
May 15, 2014, all dates which significantly precede
Arevalo's arrival in the United States in October, 2014.
rendered an oral decision finding Arevalo removable and
denying her application for protection and relief. The IJ
determined that Arevalo lacked credibility based upon the
contradictions in her statements about her passport and past
attempt to travel to the United States; the lack of evidence,
or explanation for the lack of evidence, verifying her
abuser's position as a police officer; and the suspect
nature of the written statements. As to the written
statements, the IJ concluded, based upon the text of the
statements and Arevalo's testimony, that each statement
had been written after Arevalo's arrival in the United
States but was backdated in order to give the false
impression that the statements were prepared prior to
Arevalo's departure from Guatemala "in an attempt to
corroborate the respondent's testimony."
timely appealed to the BIA, arguing that the IJ had erred in
finding her testimony not credible. Specifically, she argued
that the IJ had mischaracterized her testimony regarding the
written statements, relied on immaterial passport
information, and failed to take into account that Arevalo did
not consider her application as an attempt to enter the
United States. The BIA found that the IJ did not clearly err
in its findings of fact and provided cogent reasons for the
IJ's credibility determination, despite Arevalo's
arguments. Absent credible testimony, the BIA concluded that
Arevalo could not establish her eligibility for asylum and
withholding of removal, nor that she was more likely than not