Henry Abrego-Centeno v. Attorney General United States , 552 F. App'x 130 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3236
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HENRY MAURICIO ABREGO-CENTENO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A088-233-829)
Immigration Judge: Mirlande Tadal
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 2, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Opinion filed: January 17, 2014)
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OPINION
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PER CURIAM
Henry Mauricio Abrego-Centeno (“Abrego”) petitions for review of the Board of
Immigration Appeals’ final order of removal. For the reasons that follow, we will deny
the petition for review.
Abrego, a native and citizen of El Salvador, entered the United States without
inspection in October, 2007. He came to the attention of immigration authorities
following an arrest for disorderly conduct and related charges in Elizabeth, New Jersey.
On August 23, 2010, the Department of Homeland Security initiated removal
proceedings against him through service of a Notice to Appear, which charged that he is
removable pursuant to Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted
or paroled. Abrego does not dispute that he is removable on this basis.
After removal proceedings were initiated, Abrego filed an application for asylum,
withholding of removal, and protection under the Convention Against Torture in
Immigration Court, claiming a fear that he would be harmed by members of the gang
MS-18 in El Salvador because he had previously rejected their efforts to recruit him. The
application was filed on November 1, 2010, and Abrego submitted certain exhibits in
support of it, including a statement of his own, asserting that he had been assaulted by
MS-18 members in June, 2007 because he refused to join the gang; a statement from his
mother, in which she asserted that, when gang members would see Abrego on the street
they would take his salary money from him and at other times they would beat him up; a
statement from his brother, Jose Antonio, stating that he had been shot numerous times
by gang members on March 17, 2007, and Jose Antonio’s medical records, which showed
that he received treatment for multiple gunshot wounds on March 17, 2007 and was
severely injured, A.R. 144. Abrego also submitted news articles discussing the gang’s
violent and lawless activities, background information including the 2009 State
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Department Country Report on Human Rights Practices, and photographs of his brother’s
gunshot wounds.
Abrego testified in support of his applications at a merits hearing on December 22,
2010. He testified that he left El Salvador because he had problems there with the gangs.
On direct examination, Abrego testified twice that he was assaulted on March 17, 2007
for his refusal to join the gang, and threatened with death, A.R. 100, 106, even though his
application, including his brother’s medical records, made it reasonably clear that it was
his brother and not Abrego who was harmed on March 17, 2007. On cross-examination,
government counsel pounced on the inconsistency, first asking Abrego how he was able
to remember the exact date that he was beaten by gang members. Abrego replied, “You
never forget what they do to you.” Id. at 109. Abrego then was asked about and
addressed the shooting of his brother, testifying that his brother was shot eight times in
the arm and abdomen and that the shooting took place one month after he, Abrego, was
beaten on March 17, 2007. See id. at 110. Government counsel confronted Abrego with
his brother’s statement that his shooting took place on March 17, 2007. Upon being
confronted with his own evidence, Abrego changed his testimony and stated that he was
beaten by the gang in June or July, 2007, and not on March 17, 2007, see id. When
confronted further, Abrego again changed his testimony, stating: “No. No, they beat me
up first, and then they beat him up. They beat him up in June.” Id. at 111. On redirect,
Abrego testified that his brother was shot on March 17, 2007, and he was beaten
“[b]efore he was shot.” Id. at 112.
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Following the hearing the Immigration Judge denied statutory withholding of
removal. 1 The IJ found that Abrego’s persecution claim relating to the gang in El
Salvador was not credible, because Abrego gave conflicting testimony at his hearing
about whether he was beaten, or his brother was shot, on March 17, 2007. In addition,
Abrego’s testimony was not consistent with his mother’s statement in that he testified
that he had been beaten up only once, whereas his mother referred to his having been
robbed or beaten on more than one occasion. The IJ also concluded that Abrego had not
established that he was a member of a “particular social group” entitled to protection
under the INA. The IJ denied Abrego’s CAT application on the basis of the Country
Report, which the IJ stated did not support an inference that the government of El
Salvador would acquiesce in torture by gang members; the IJ concluded that the report
showed that El Salvador is making progress in controlling gang activity. The IJ ordered
Abrego removed to El Salvador.
Abrego appealed to the Board of Immigration Appeals. In his brief, he contended,
in pertinent part, that he had gotten confused about the date that he was attacked and the
date that his brother was shot. On June 20, 2013, the Board dismissed the appeal,
declining to reach any issue other than the IJ’s adverse credibility determination. With
regard to that determination, the Board reasoned that the IJ did not clearly err because
there were noteworthy inconsistencies in Abrego’s application and testimony with respect
to the number of times he was beaten, the date on which he was beaten, and the date on
1
Although Abrego filed an asylum application, he conceded that it was untimely under
the INA, 8 U.S.C. § 1158(a)(2)(B), and thus the IJ considered only his withholding of
removal and CAT protection applications.
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which his brother was shot. The Board found his explanation that he was confused
inadequate, and, in any event, it did not account for his mother’s statement that he had
been robbed or attacked on more than one occasion. Because Abrego did not testify
credibly, he did not meet his burden of proof, and thus it was unnecessary to address
whether he had established his membership in a protected “particular social group.”
Abrego petitions for review of the Board’s decision. We have jurisdiction under 8
U.S.C. § 1252(a)(1), (b)(1). When the Board issues a separate opinion, we review the
Board’s decision and look to the IJ’s ruling only insofar as the Board deferred to it.
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).
We will deny the petition for review. Under INA § 241(b)(3)(A), 8 U.S.C. §
1231(b)(3)(A), withholding of removal is not discretionary: “The 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.” The statute
requires the alien to show by a clear probability that his life or freedom would be
threatened on account of a protected ground in the proposed country of removal.
Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). See also
Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987)
(“would be threatened” standard has no subjective component). An applicant for
withholding of removal bears the burden of demonstrating his eligibility for relief
through credible testimony. 8 U.S.C. § 1231(b)(3)(C); § 1229a(c)(4)(A)-(B).
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The agency’s factual determinations are upheld if they are supported by
reasonable, substantial, and probative evidence on the record considered as a whole.
Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under
this deferential standard, the petitioner must establish that the evidence does not just
support a contrary conclusion but compels it. See id. at 481 n.1; Gao v. Ashcroft, 299
F.3d 266, 272 (3d Cir. 2002). Adverse credibility determinations are reviewed under the
substantial evidence standard. See Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004).
The INA provides that:
Considering the totality of the circumstances, and all relevant factors, a trier
of fact may base a credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made and whether or not
under oath, and considering the circumstances under which the statements
were made), the internal consistency of each such statement, the
consistency of such statements with other evidence of record (including the
reports of the Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
Thus, when asserting a withholding of removal claim, a petitioner must credibly
show both that he is a member of a particular social group as defined by the Act and that
it is more likely than not that he will be persecuted on account of his membership in that
group. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). Here, substantial evidence
supports the agency’s conclusion that Abrego failed to meet his burden of proof because
he did not testify credibly about the central issue in his case, even if it is assumed that he
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is a member of a particular social group as defined by the INA. Substantial evidence
supports the adverse credibility determination made in Abrego’s case because it was
based on specific inconsistencies in Abrego’s testimony and evidence that concerned the
very basis of his claim, namely his allegations that he was beaten and his brother was
shot and nearly killed in El Salvador by MS-18 gang members. Abrego failed to present
a coherent claim with respect to what happened to him and his brother in El Salvador.
An applicant cannot rely solely on the persecution of a family member to qualify
for relief, see Cham v. Att’y Gen. of U.S., 445 F.3d 683, 693 (3d Cir. 2006), but
evidence of a gang-related assassination attempt on Abrego’s brother was relevant to his
claim because he and his brother share the same characteristics, see id. Moreover,
Abrego’s claim of persecution, which was based on a minor assault, would have been
weak without the evidence that his brother was severely harmed by the gang. Cf. Voci v.
Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (single beating that does not result in serious
physical injury does not compel reversal of the Board’s decision that alien did not suffer
persecution). Credible testimony about what happened to his brother, and when it
happened, was thus crucial to his claim of persecution.
Abrego’s paper application and supporting exhibits presented a coherent claim,
through Abrego’s statement, and his brother’s statement and medical records, that his
brother was shot multiple times on March 17, 2007 and left with severe long-term
injuries, and that Abrego was assaulted by gang members, but not on that same date.
Abrego then gave testimony at his merits hearing that directly contradicted this simple,
straightforward case, and there is no plausible reason for Abrego to have insisted twice
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on direct examination that he was the one who was assaulted on March 17, 2007, or to
have testified that his brother was shot one month later. Nothing in Abrego’s brief on
appeal rehabilitates his credibility with respect to this critical issue. His credibility was
severely undermined on cross-examination when he testified that he was able to
remember March 17, 2007 as the exact date that he was beaten because “You never
forget what they do to you,” id. at 109.
Accordingly, the agency’s adverse credibility determination will be upheld. The
agency further concluded that Abrego did not meet his burden of establishing that it is
more likely than not that he will be tortured upon his return to El Salvador by forces the
government is unable or unwilling to control. 8 C.F.R. § 1208.16(c)(2). Where a CAT
claim is based on the same evidence found to be incredible, and the evidence does not
otherwise compel the conclusion that it is more likely than not that the applicant would
be tortured by, or with the acquiescence of, the government in the country of removal, as
is the case here, the applicant cannot establish eligibility for CAT protection. See Paul v.
Gonzales, 444 F.3d 148, 157 (2d Cir. 2006). Here, the factual basis for Abrego’s
statutory withholding of removal and CAT claims are the same, and the record does not
compel a conclusion contrary to that of the agency on the torture claim.
For the foregoing reasons, we will deny the petition for review.
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