Luis Mendoza-Ordonez v. Attorney General United States , 869 F.3d 164 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 16-3333
__________
LUIS JAVIER MENDOZA-ORDONEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
__________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A202-144-002)
Immigration Judge: Roxanne Hladylowycz
___________
Argued May 9, 2017
BEFORE: AMBRO, RESTREPO,
and NYGAARD, Circuit Judges
(Filed: August 23, 2017)
Joseph A. Brophy, Esq. [Argued]
Brophy & Lenahan
18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
Counsel for Petitioner
Dana M. Camilleri, Esq.
Jessica Dawgert, Esq.
Sabatino F. Leo, Esq. [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
__________
OPINION OF THE COURT
__________
NYGAARD, Circuit Judge.
I.
Luis Javier Mendoza-Ordonez, a citizen of the
Republic of Honduras, crossed the United States border
without inspection on two occasions. After his first entry
Customs and Border Patrol officers (CBP) detained him and
2
the Government returned him to Honduras under an expedited
removal. When CBP detained him after his second entry
Mendoza requested asylum and, alternatively, asked the
Government to withhold his removal from the United States
because he feared for his life if returned to Honduras. 1 He
was placed into a “withholding only” proceeding and after a
hearing the Immigration Judge denied his requests and
ordered his removal. He appealed to the Board of
Immigration Appeals (BIA) asserting, primarily, that the
Immigration Judge ignored key evidence.
Mendoza now petitions us to review the BIA’s order
that dismissed his appeal. He contends that substantial
evidence supporting his request for withholding of removal
compels a conclusion that is contrary to that of the BIA. He
also maintains that the BIA applied the wrong legal standard
when it reviewed this claim. Finally he argues he is eligible
for asylum. We will reverse the decision of the BIA and
grant Mendoza’s petition for withholding of removal. We
will deny the petition as to his request for asylum.
II.
A.
1
Mendoza requested withholding of removal under both the
Immigration and Naturalization Act (INA), 8 U.S.C.
§1231(b)(3)(A), and the Convention Against Torture (CAT),
8 C.F.R .§ 208.18. Of these, his petition for review raises
only the denial of his request for withholding of removal
under the INA.
3
Mendoza was born in Honduras in 1989, the son of
Edith Dalila Mendoza Ordonez and Manuel Ulises Martinez
Gonzalez. 2 Mendoza’s father (Martinez) was politically
active in the Liberal Party. He routinely spoke out against the
National Party and its elected officials in the Honduran
government. After unsuccessfully running for mayor of
Apacilagua, Martinez won an election to serve as a council
member for the municipality. He remained a vocal opponent
of the National Party, accusing it of corruption.
Tragically, on January 1, 2000, a National Party
activist named Gerardo Valladares assassinated Martinez and
wounded Martinez’s wife. Valladares was convicted of
murder, imprisoned and released. 3 In 2002, Mendoza’s uncle
(Jose Avilio Martinez Gonzalez) also ran for mayor as a
Liberal Party candidate; he, too, was assassinated. The man
who killed him, Dimas Amador, was—like Valladares—a
National Party activist. 4 Amador was convicted of this crime.
2
The petitioner refers to his father as Manuel Luis Martinez-
Gonzales. Martinez was married to another woman, named
Bessy Magdalena Sanchez Rodriguez, when Mendoza was
born. A birth certificate and Sanchez’s testimony on the
telephone established that Martinez was Mendoza’s father.
3
Sanchez testified that Valladares received only a six-month
prison sentence. The BIA agreed with the Immigration Judge
that this was insufficient evidence to substantiate the length of
his prison term.
4
Mendoza did not mention his uncle’s assassination when he
crossed the United States border from Mexico in either 2014
or 2015. Nonetheless, the Immigration Judge found his
testimony on this event credible.
4
Throughout his childhood Mendoza attended Party
functions with his father. In spite of the murders of his father
and uncle, Mendoza’s interest in politics persisted. He served
as president of the local Liberal Party’s youth division, gave
speeches supporting the Party between 2008 and 2014, and
worked for the Party during the national election in 2013. 5
On September 7, 2014, Hector Giron approached
Mendoza on behalf of Valladares (the assassin of Mendoza’s
father) and threatened him with the same fate as his father if
he did not stop speaking out against the National Party.
Mendoza reported this incident on the following day to Judge
Miriam Umanzor Aguilar, who told him that she would
investigate. Mendoza noted that Umanzor is a National Party
member and the niece of the Apacilagua mayor (the same
woman who defeated his father in the mayoral election). So
when Mendoza heard nothing from Judge Umanzor in the two
weeks following the filing of his complaint, he was convinced
that the Judge would not take action. He left Apacilagua and
stayed with one of his sisters in Tegucigalpa.
In October 2014, he applied for—but was denied—a
visa to the United States. Nonetheless, Mendoza crossed the
United States border from Mexico without inspection on
November 27, 2014. CBP agents detained and interviewed
him on his reasons for crossing. 6 On December 3, 2014, the
5
Mendoza’s friend (Oman Reuben Ouela Rodriguez)
testified that Mendoza was politically active.
6
Aspects of this interview are disputed by Mendoza, but
given his admission that he is not eligible for asylum (see
infra note 11) and the unchallenged conclusion that
5
Department of Homeland Security executed an expedited
removal under 8 U.S.C. § 1225(b)(1) and returned him to
Honduras.
Again, Mendoza lived with a sister in Tegucigalpa. He
remained hidden there for four months, still fearing for his
safety. On April 17, 2015, Mendoza traveled to Apacilagua
to visit his ailing grandfather. The next day Valladares and
other National Party members approached him. Valladares
put a gun to Mendoza’s head and told him that he would kill
him if he continued to speak out against the National Party. 7
On April 20, 2015, Mendoza filed a complaint with Judge
Umanzor about this new threat. When, on April 22, 2015,
Mendoza heard nothing from the Judge about his complaint,
he returned to his sister’s house in Tegucigalpa and went back
into hiding. He testified that he feared even walking the
streets.
Mendoza attempted to re-enter the United States again
in May 2015, but Mexican authorities detained and returned
him to Honduras. He went back to his sister’s house and
remained in hiding until June 5, 2015. He then embarked on
his last attempt to cross the United States border from
Mexico. He re-entered the United States in July 2015. CBP
detained him approximately six days after he crossed.
Mendoza’s claims of politically motivated death threats are
credible, these issues are not relevant to our deliberation.
7
Rodriguez and Sanchez witnessed this and testified about it.
Rodriguez also validated that the threat was grounded in
Mendoza’s actions on behalf of the Liberal Party.
6
The Department of Homeland Security determined that
Mendoza was subject to removal and served him with a
Notice of Intent/Decision to Reinstate the Prior Removal
Order on July 28, 2015. On September 1, 2015, an asylum
officer interviewed him to determine if he had credible fear of
persecution in Honduras. It was determined that Mendoza’s
claims warranted further review, and he was referred to the
Immigration Court for a “withholding only” proceeding.
B.
The Immigration Judge concluded that, although
Mendoza’s testimony credibly established that he received
death threats for his political opinions, he still did not meet
his burden of proof for withholding of removal because he
failed to prove that the Honduran government was unwilling
or unable to protect him from those threats. The Immigration
Judge decided alternatively that the government had proven
that the periods of time in which Mendoza lived with his
sisters proved that he could safely relocate in Honduras. The
order pretermitted his claim for withholding of removal under
the INA, 8 and his asylum claim. 9 It also denied his
8
The Immigration Judge did not deny, but instead
pretermitted (invalidated), Mendoza’s claim for withholding
of removal under the INA. The BIA ruled that this was error,
but it determined that the error was harmless given that the
Immigration Judge reviewed the merits of Mendoza’s claim
for withholding of removal. However, the BIA did not
explain its decision. Because we will grant Mendoza’s
petition for review on his withholding of removal claim
arising from the INA, we clarify that, as we recently held, 8
C.F.R. § 1208.31 does not bar withholding of removal for
7
withholding of removal claim under the Convention Against
Torture. 10
Mendoza filed a timely direct appeal, claiming that the
Immigration Judge erred by: deciding that he was ineligible
for withholding of removal; concluding that he failed to prove
the Honduran government was unwilling or unable to protect
him; ruling that he could safely relocate in Honduras;
deciding that he should be placed in a “withholding only”
proceeding; and finally, declaring that he was ineligible for
asylum. The BIA dismissed his appeal. Mendoza filed this
petition for review.
III.
A.
Mendoza sought our review of the BIA’s dismissal of
his asylum claim. But he now concedes that our recent
decision controls the analysis and forecloses his request for
asylum. See Cazun v. Attorney General of the United States,
aliens who are under a reinstated removal order. Cazun v.
Attorney General of the United States, 856 F.3d 249, 264 (3d
Cir. 2017).
9
Upon his second entry into the United States without
inspection, the Government reinstated his prior removal
order. The Immigration Judge explained in her opinion that
this rendered Mendoza ineligible for asylum. 8 C.F.R. §
1208.31. We discuss this in more detail later (see infra note
11).
10
8 C.F.R. § 208.18.
8
856 F.3d 249, 260 (3d Cir. 2017). 11 The remaining action
that Mendoza requests from the government arises from the
INA, which says: “[T]he Attorney General may not remove
an alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership
in a particular social group or political opinion.” 8 U.S.C. §
1231(b)(3)(A). An alien who applies for withholding of
removal must prove that ‘“it is more likely than not that [his]
life or freedom would be threatened on account of . . .
political opinion.’” Ordonez–Tevalan v. Attorney General of
the United States, 837 F.3d 331, 341 (3d Cir. 2016)( quoting
Amanfi v. Ashcroft, 328 F.3d 719, 726 (3d Cir. 2003)); 8
C.F.R. § 1208.16(b)(1). 12 Mendoza contends that the BIA
erred by ruling that he failed to prove this.
11
At oral argument, Mendoza conceded that our recent
decision controls the outcome on his asylum claim (Cazun,
856 F.3d 249), and tacitly recognized the propriety of the
decision to adjudicate his case in a “withholding only”
proceeding. Mendoza argued, as did the petitioner in Cazun,
that, in light of 8 U.S.C. § 1158(a), the BIA unreasonably
interpreted 8 U.S.C. § 1231(a)(5) as barring asylum relief to
those under a reinstatement of a removal order. However, we
ruled that “[i]t was reasonable for the agency to conclude that
the statutory reinstatement bar foreclosing ‘any relief under
this chapter’ means just what it says: no asylum relief is
available to those subject to reinstated removal orders.”
Cazun, 856 F.3d at 260. Our holding in Cazun controls the
issue raised by Mendoza, and for this reason, we will deny his
petition for review on this claim.
12
Mendoza did not challenge the BIA’s decision denying his
claim for withholding of removal under the Convention
9
We have jurisdiction to review the BIA’s final order of
removal under 8 U.S.C. § 1252(a). When, as in this instance,
the BIA provides its own reasoned decision (rather than
merely adopting the immigration judge’s opinion) we review
the BIA’s decision as the final decision. Nelson v. Attorney
General of the United States, 685 F.3d 318, 321 (3d Cir.
2012). Nonetheless, “to the extent the BIA deferred to or
adopted the [immigration judge’s] reasoning” on particular
issues, we may consider both opinions on those points. Id.We are empowered to review the BIA’s legal conclusions
under a de novo standard of review. Borges v. Gonzales, 402
F.3d 398, 404 (3d Cir.2005). But we must regard all
determinations about facts grounding the final order as
“conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B). Factual findings include statements about the
events and circumstances in the country grounding an alien’s
claim that he or she suffered persecution. Kaplun v. Attorney
General of the United States, 602 F.3d 260, 270 (3d Cir.
2010). 13
Mendoza alleges the BIA made two errors. First, he
contends the entire record compels a result contrary to BIA’s
finding that he failed to produce sufficient evidence to
support his request for withholding of removal. He also
Against Torture, nor did he object to the BIA’s denial of his
withholding of removal claim under the INA that was based
on his membership in a social group.
13
The determination of whether the events and circumstances
alleged rise to the level of persecution is a legal determination
that the BIA decides de novo. Kaplun, 602 F.3d at 270.
10
claims that the BIA applied the wrong standard of review
when it analyzed his argument that the Immigration Judge
ignored key evidence. We will address this latter issue first.
B.
The BIA is required to examine challenges to the
immigration judge’s factual findings for clear error. 8 C.F.R.
§ 1003.1(d)(3)(i). Clear error is commonly defined as “an
obvious, plain, gross, significant, or manifest error or
miscalculation.” Concrete Pipe and Products of California,
Inc. v. Construction Laborers Pension Trust for Southern
California, 508 U.S. 602, 653 (1993).
In his petition for review Mendoza says that the BIA
failed to use the clear error standard when it reviewed his
appeal. The Government agrees that clear error review
applies, and points out that the BIA correctly referred to it
early in its opinion. This is true, but later in its discussion of
the country reports, the BIA also said:
[Mendoza] did not establish that
this evidence is sufficient to
impact the outcome of the case. . .
. See Matter of Coelho, 20 I&N
Dec. 464 (BIA 1992)( holding
that an alien seeking to reopen or
remand proceedings bears a heavy
burden of proving that the new
evidence offered would likely
change the result of the alien’s
case).
11
The BIA’s error is readily apparent. It should have been
examining, in the context of a direct appeal: whether the
Immigration Judge failed to review and weigh the country
reports that were in the record; and, if she did ignore the
reports, whether this error undermined her factual finding
about the Honduran government’s willingness and ability to
protect Mendoza from death threats. Instead, mistakenly
applying the standard for a motion to remand or reopen, the
BIA deliberated on: whether these reports were significant
enough to warrant consideration as new evidence (as though
they were not already part of the record); and whether the
reports provided a sufficient basis to reopen the case. 14
Yet, even though we are confident the BIA made a
mistake, we are less certain about the impact it had on its
decision. Because the BIA’s discussion of the reports is so
brief, we do not know exactly how it analyzed them. It is also
impossible to gauge whether its treatment of the reports as
new evidence prejudiced its assessment of them in any way.
For these reasons we cannot assess the precise impact that the
BIA’s error had on its conclusion. Nonetheless, we do not
need to pursue this issue further because, when the entire
record is considered, we are certain Mendoza’s substantial
evidence claim has merit.
C.
14
Matter of Coelho addresses a motion to remand that sought
the consideration of new evidence. It followed its practice of
regarding the motion as if it was a motion to reopen. Matter
of Coelho, 20 I. & N. Dec. at 471.
12
Our review for substantial evidence does not merely
rest on our discovery of alternative theories or findings that
could be supported by the record. Rather, it requires that we
examine the entire record to decide whether this body of
evidence would compel a reasonable factfinder to make a
determination contrary to that made by the BIA. He Chun
Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). 15
We begin by noting that the BIA accepted the
Immigration Judge’s credibility determinations on key facts
in Mendoza’s petition. The BIA did not disturb the
Immigration Judge’s conclusion that Mendoza received two
death threats in 2014 and 2015. It accepts that these threats
originated with the same man who killed his father in 2000.
The BIA did not express any problems with the notion that
the threats were due to Mendoza’s political activity. And it
agrees that Mendoza made complaints to Honduran
authorities and that nothing resulted from them. 16 But since
the death threats directed at Mendoza did not come from
someone within the government, the BIA properly focused on
whether Mendoza had shown that the Honduran government
was unwilling or unable to protect him from the threats. Lie
v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005). It ultimately
15
‘“Substantial evidence is more than a mere scintilla and is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Senathirajah v.
Immigration & Naturalization Service, 157 F.3d 210, 216 (3d
Cir. 1998)( quoting Turcios v. Immigration & Naturalization
Service, 821 F.2d 1396, 1398 (9th Cir. 1987)).
16
The BIA stated that “the Immigration Judge properly ‘found
that’ nothing resulted from the applicant filing two
complaints. . . .”
13
ruled that he did not provide enough evidence on this
essential piece of his case and therefore he did not prove his
eligibility for withholding of removal.
To prove his eligibility, Mendoza gave the
Immigration Judge evidence about the death threats, the
political affiliation of Valladares and Judge Umanzor, and
country condition reports from a variety of sources. But the
Immigration Judge never acknowledged the reports.
Moreover, although the BIA made a ruling based on its
review of the reports, it did not explain what was in them.
Therefore, we will address what we found in our review that
was relevant to Mendoza’s petition.
A 2013 article from Rights Action states that, after the
National Party came into power in 2009, violence related to
the electoral process in Honduras steadily rose. It also saw an
increase in the number of politically motivated deaths. It
commented that violence had been directed at Liberal Party
members. A.R. 336. A 2013 State Department Human
Rights Report described the 2013 elections as credible but
concluded that the justice system suffers from “institutional
weakness,” subjecting it to corruption and intimidation. It
referred to a number of instances in which military or police
officials who were suspected of violating human rights were
not prosecuted. A.R. 375. A 2014 State Department Human
Rights Report discussed government efforts to combat
corruption, but it also highlighted significant institutional and
societal challenges that hampered the success of its efforts.
A.R. 421. It noted particular “concern regarding corruption
in the judiciary and security forces.” A.R. 420. A 2015
Human Rights Watch report said that the system for selecting
judges in Honduras had many irregularities, and it reasoned
14
from this that the system generally lacked the protections
necessary to guard against political interference. A.R. 326.
Finally, a Freedom House report from 2015 stated that
roughly 80% of the crimes occurring in the country are never
reported, and that police actually investigate only 4% of
crimes that are reported. A.R. 332. All of the reports
included discussion of widespread corruption and violence in
Honduras, and described an environment in which civil rights
protections are eroding.
Since the BIA did not discuss the substance of these
reports, we look to other aspects of its opinion to understand
why, even with this evidence, it ruled that Mendoza did not
carry his burden of proof. Three aspects of its decision were
prominent.
First, the BIA referenced the convictions of Valladares
in 2000 and Amidor in 2002 (the men who assassinated
Mendoza’s father and uncle) ostensibly to show that the
Honduran government does investigate and prosecute
politically motivated violence. The BIA obliquely
acknowledged that this evidence pre-dated (by over a decade)
the death threats Mendoza received. However, it implied that
Mendoza failed to show that conditions in the country had
grown worse in that period of time. 17
17
The BIA did not explicitly state that Mendoza failed to
prove a change in conditions in Honduras. Instead, as part of
its discussion rejecting Mendoza’s assertion that Valladares
had received a short prison sentence, it said: “[W]e conclude
that the applicant did not submit sufficient testimonial or
documentary evidence to establish that the length of time that
his alleged persecutor was imprisoned and the passage of
15
In response to Mendoza’s Petition for Review, the
Government defended the BIA’s assessment of the
relationship between the convictions (of Valladares and
Amidor) and the country reports with a different line of
reasoning. It brushed aside the country condition reports as
nothing more than Mendoza’s misguided attempt to
“override” evidence of the convictions of Valladares and
Amidor. Menjivar v. Gonzales, 416 F.3d 918, 922 (8th Cir.
2005) (“To whatever extent these materials show that there is
a general problem of gang violence . . . we do not believe
they can override the evidence in this case that police
conducted a thorough investigation. . . .”); Matter of
McMullen, 17 I. & N. Dec. 542, 546 (BIA 1980) (“We do not
give much weight to those articles submitted by the [alien]
which are of a general nature and do not in any way relate to
the [alien] himself.”). The implication is that, in the face of
direct evidence of convictions, country condition reports have
little weight.
A second aspect of the BIA’s decision we regarded as
important was its perspective on the fact that Mendoza’s
assertion of past persecution relies on an inference of political
corruption that is grounded in the Honduran government’s
time since his imprisonment establishes that the government
of Honduras is unable or unwilling to protect him.” In
context, we understand this to express the BIA’s conclusion
that Mendoza failed to prove that the political and legal
environment in Honduras (which, it implies, enabled the
conviction of his father’s assassin) had deteriorated.
16
inaction on his complaints. 18 The BIA dismissed Mendoza’s
inference as pure speculation by concluding generally that the
evidence does not support the notion that the Honduran
government was unwilling or unable to protect him. It also
specified that even the “background evidence” (a reference to
the country condition reports) does not change this outcome.
The BIA underscored its assessment that evidence supporting
Mendoza’s inference is weak by proffering, albeit in an off-
hand manner, an alternative inference drawn from the
Honduran government’s inaction on his complaints that the
government’s inaction was due to Mendoza’s impatience. 19
The Government defended the BIA’s reasoning by
referencing precedent in which we ruled that the Honduran
government’s failure to act on complaints of threats did not
necessarily show that it had been unwilling or unable to
respond to an alien’s complaints of violence and threats by
18
The Government asserts that the Immigration Judge made a
finding that Mendoza failed to prove the Honduran
government did not act. In fact, the Immigration Judge
equivocated, saying she “hesitates to make the same
assumption [as Mendoza did] that the courts were not going
to do anything.” She said nothing further on this. Our
analysis is grounded in the BIA’s conclusion that “nothing
resulted” from Mendoza’s complaints.
19
It said that “although nothing resulted from the applicant
filing two complaints against the man who threatened him[,]
the applicant waited only a short period of time after filing the
complaints before assuming that nothing would be done about
the complaints. . . .” The BIA also said it was Mendoza’s
impatience—demonstrated by him leaving Apacilagua two
weeks after the first complaint and two days after the second
complaint—that prevented any investigation from occurring.
17
gangs. Valdiviezo-Galdamez v. Attorney General of the
United States, 663 F.3d 582, 610 (3d Cir. 2011). That case,
which focused on gang violence, relied on 2005 country
reports that documented the Honduran government’s reform
efforts, such as new security patrols, and anti-gang
legislation. Id. We concluded that those reports weakened
the alien’s attempt to use inaction on his complaints as a basis
to infer the government’s unwillingness or inability to protect
him. We noted that, lacking strong supporting evidence,
numerous reasonable inferences could be made from the
Honduran government’s inaction that would not support the
alien’s claims. Id.The third, and final aspect of the decision that was of
particular interest to us was the BIA’s judgment that it did not
need to address an alternative decision by the Immigration
Judge. 20 The Immigration Judge decided on alternative
20
We may address rulings by the Immigration Judge “to the
extent the BIA deferred to or adopted the [immigration
judge’s] reasoning” on a particular issue. Nelson, 685 F.3d at
321. Here the BIA found no need to rule on the Immigration
Judge’s decision that the Government carried its burden of
proving that Mendoza could safely relocate. It did so because
it agreed with the Immigration Judge’s underlying reasoning
that the record was insufficient to ground the prerequisite
finding that the Honduran government was unwilling or
unable to protect Mendoza. This obviated the need for a
determination that Mendoza could safely relocate because the
BIA’s ruling implicitly determined this. Our review
encompassed the entire record that was before the
Immigration Judge and the BIA. Moreover, our findings on
this record (arising from other issues, see infra)
18
grounds that, even if Mendoza had established past
persecution, the government nonetheless met its burden of
proof to show that he could safely relocate to Honduras. (8
C.F.R. § 208.16(b)(3)(ii)). The Immigration Judge was
convinced that, since Mendoza lived with his sisters for a
period of time after the death threats without any incident,
this was sufficient evidence to show that safe relocation was
possible. She noted, however, that her finding also was
grounded in her assessment that Mendoza failed to
substantiate his claim that he was fearful after the death
threats or that he needed to go into hiding when he was
staying with his sisters. The BIA’s ruling that Mendoza did
not prove the Honduran government’s unwillingness or
inability to protect him implicitly adopts this reasoning,
which obviated the need for an explicit ruling that Mendoza
could safely relocate there.
Although these three aspects of the decision give us an
idea of how the BIA viewed Mendoza’s petition, we
nonetheless are baffled by its assessment that the country
reports were unimportant to the outcome of the case. To the
contrary, we regard the evidence in these reports as a critical
piece of the record.
The BIA raised up the convictions of Valladares and
Amidor as affirmative evidence of a properly functioning
justice system that contradicts Mendoza’s claims. Although
evidence of country conditions around the time of those
fundamentally contradict the Immigration Judge’s reasoning
and ruling, and they also eliminate any basis for the BIA’s
implicit ruling that Mendoza can safely relocate. Therefore,
we may review the Immigration Judge’s ruling on this issue.
19
convictions is not in this record, the reports Mendoza
submitted give us a substantive understanding of conditions
in Honduras when he received the death threats: widespread
human rights abuses; unchecked politically motivated
violence; and a poorly functioning justice system, vulnerable
to corruption, that failed to reign in the violence. As a result,
we are convinced that convictions occurring more than a
decade before the death threats have little value in the context
of the entire record. The convictions do not contradict or
even diminish evidence portraying fundamentally different
country conditions at the time of the threats. 21 Therefore, we
conclude that—in light of this entire record—the BIA’s
reliance on the convictions of Valladares and Amidor to form
conclusions about country conditions at the time of the death
threats was not reasonably grounded in the record and is not
owed our deference.
Similarly, the BIA implies that—like Valdiviezo-
Galdamez—the record is too weak to support an inference
that the justice system is corrupt and biased. However,
Mendoza grounded his inference by testifying that Valladares
and Umanzor belong to the National Party, and by testifying
that Umanzor is the niece of the woman who was a political
opponent of Mendoza’s father. This testimony was not
challenged. He then pointed to the country reports. One
report noted that only a small fraction of crimes brought to
the government are ever investigated. A second report
discussed a justice system that is systemically vulnerable to
21
Unlike Menjivar, these reports were not general in nature,
but rather provided analysis that gave close support to the
claims Mendoza made about problems with the Honduran
justice system. Menjivar, 416 F.3d at 922.
20
political influence and corruption. Finally, another report
documented that the Honduran government failed to
prosecute officials who were known to have committed
human rights violations. This was only a small part of the
country condition evidence presented that supported his
claims. These country reports demonstrate that Mendoza’s
experience (threats of violence that receive no government
response or investigation) was by no means an isolated case.
All of this provides a compelling grounding for his inference
that the inaction on his complaints was due to the shared
political affiliations of the perpetrator and the Judge, and a
justice system that allows and enables such corruption by
political influence. 22
Finally, as to the Immigration Judge’s observation,
implicitly endorsed by the BIA, that Mendoza did not
legitimate his fear or his need to go into hiding, we regard this
conclusion as contrary to the record. As we have already
stated, after establishing that he faced death threats, Mendoza
provided evidence of a systemic problem with the justice
system that was not unique to Apacilagua. The reports made
clear that politically motivated violence, virtually
unrestrained, was a reality that afflicted the entire country.
22
As for the BIA’s alternative inference regarding Mendoza’s
impatience, we generally defer to inferences made by the
immigration judge or BIA. But deference is not owed when
the inference is not reasonably grounded in the record “as a
whole.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.
2003). In this instance, there is absolutely nothing in the
record to support the BIA’s theory that impatience explains
the government’s inaction. It is, therefore, not entitled to our
deference.
21
Therefore, in the context of the entire record, Mendoza’s fear
and his need to go into hiding have been amply and
compellingly substantiated.
Throughout this review of the BIA’s decision, we have
been aware that the deferential “substantial evidence”
standard of review establishes a high bar for disturbing the
factual conclusions of the BIA. Moreover, we know that—
even when we come across evidence in the record that would
compel a different finding—“the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.” Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985). This would ordinarily be
the case particularly where, as here, the BIA’s analysis of key
evidence is scant. Nonetheless, there are a few instances in
which ‘“application of the correct legal principles to the
record could lead only to the same conclusion’” and in these
rare cases ‘“there is no need to require agency
reconsideration.’” Kang v. Attorney General of the United
States, 611 F.3d 157, 168 (3d Cir. 2010) (quoting Zabala v.
Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (alterations
omitted)). This is such a case.
In this instance, we are convinced that evidence of the
politically motivated death threats, the inaction on Mendoza’s
complaints, a perpetrator and judge who shared a political
affiliation in opposition to that of Mendoza, and evidence of a
politically corrupt justice system that failed to reign in
politically motivated violence in Honduras compels two
findings: first, the Honduran government was unwilling or
unable to protect Mendoza from death threats; and, second,
Mendoza could not safely relocate in Honduras. These
findings, in turn, lead only to one reasonable conclusion: ‘“it
22
is more likely than not that [Mendoza’s] life or freedom
would be threatened [in Honduras] on account of . . . political
opinion.’” Ordonez–Tevalan, 837 F.3d at 341 (quoting
Amanfi, 328 F.3d at 726); 8 C.F.R. § 1208.16(b)(1). For this
reason, we conclude that this case is one of those rare
instances in which remand is not necessary. The record
compels a conclusion that withholding of removal should be
granted, and we will do so.
IV.
For all of these reasons, we will reverse the BIA’s
decision and grant Luis Mendoza Ordonez’s petition for
withholding of removal, pursuant to 8 U.S.C. §
1231(b)(3)(A). We will deny the petition for review on the
request for asylum.
23