Gerson E. Alvarenga-Flores v. Jefferson B. Sessions III ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2920
GERSON E. ALVARENGA-FLORES,
Petitioner,
v.
JEFFERSON B. SESSIONS III, ATTORNEY
GENERAL OF THE UNITED STATES,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A206-184-822
____________________
ARGUED APRIL 20, 2018 — DECIDED AUGUST 28, 2018
____________________
Before SYKES and BARRETT, Circuit Judges, and DURKIN,
District Judge. *
BARRETT, Circuit Judge. Alvarenga seeks asylum, withhold-
ing of removal, and relief under the Convention Against Tor-
ture because he fears torture and persecution from gang
members if he returns to El Salvador. The immigration judge
* Of the Northern District of Illinois, sitting by designation.
2 No. 17-2920
concluded that Alvarenga lacked credibility and denied him
relief. Finding no clear error in the immigration judge’s deci-
sion, the Board of Immigration Appeals dismissed the appeal.
Substantial evidence supports the decisions of the immigra-
tion judge and the Board, and the record does not compel a
contrary conclusion. We therefore deny Alvarenga’s petition
for review.
I.
Gerson Eliseo Alvarenga-Flores was apprehended cross-
ing the United States border, and he gave a “credible fear”
interview while he was detained. 1 He said that he was afraid
to return to El Salvador, where he is a citizen, because after
witnessing the murder of a friend, he received threats from
the gang members responsible. His case was referred to an
immigration judge (IJ), and the Department of Homeland Se-
curity filed a Notice to Appear. It charged him with remova-
bility under the Immigration and Naturalization Act because
he did not possess valid non-immigrant visas, travel docu-
ments, or immigrant visas, and he was not exempt from pos-
sessing those documents. § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Alvarenga conceded that he was remov-
able and applied for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). The
IJ denied all three forms of relief based on an adverse credi-
bility finding; he also found that Alvarenga’s asylum applica-
tion was time-barred.
1Petitioner moved to redact his name from our opinion. Redaction is
an extraordinary measure, and petitioner has not shown that it is war-
ranted here.
No. 17-2920 3
He based the adverse credibility finding on inconsisten-
cies in Alvarenga’s testimony about the two events that had
prompted him to leave El Salvador for fear of persecution.
One involved his escape from gang members who attacked
him in a taxi; the other involved his escape from gang mem-
bers who approached him on a bus.
First, the taxi: Alvarenga claimed that he and three friends
were riding in a taxi that was stopped by a gang, which fired
shots at the car and ultimately killed one person. He offered
two different accounts of what happened. In his written state-
ment, Alvarenga said that his friend Jose Diaz was sitting in
the front passenger seat. After the attack began, Diaz exited
his door and fled on foot, which distracted the gunmen and
allowed the taxi to get away. In his oral testimony before the
IJ, Alvarenga described events differently. He testified that no
one was seated in the front—in this version, all four passen-
gers were seated in the back. He said that Diaz, the friend who
fled on foot, was sitting in the middle seat. Because everyone
else stayed in the taxi, this position would have required Diaz
to climb over one or more passengers to exit the car. When
asked about the inconsistency in his stories, Alvarenga had no
explanation for it.
Next, the bus: Alvarenga claimed that a few days after the
taxi incident, gang members boarded a bus that he was riding
home from school. In his written statement, Alvarenga said
that the gang members—one of whom he recognized as an
assailant from the taxi attack—boarded the back of the bus
and initially stayed there. When the gang members started
approaching Alvarenga, he jumped out of the bus door, and
in the process, fell and scraped his hand. In the oral version
that he gave to the IJ, events unfolded differently. He testified
4 No. 17-2920
that he boarded the back of the bus and the gang members got
on through the front. When the assailants walked toward
him, he jumped out of the back. When pressed by both the IJ
and the government about the difference in his oral account,
Alvarenga “testified forcefully that he got on the back of the
bus and not the assailants.” Again, he did not explain the dis-
crepancy between his written and oral statements.
Because of the inconsistencies, the IJ determined that Al-
varenga was not being truthful about the basis of his applica-
tions for asylum, withholding of removal, and protection un-
der CAT. He then considered whether corroborating evidence
could rehabilitate Alvarenga’s testimony. Alvarenga had sub-
mitted two affidavit letters from his parents to support his
story. Both letters were written in English, even though nei-
ther parent speaks English. The IJ also found the substance of
the letters questionable. Alvarenga’s parents lacked firsthand
knowledge of the events discussed in their letters and “re-
state[d] things that they can only have heard from [Al-
varenga].” The IJ further noted that Alvarenga’s parents
could have testified telephonically but did not. He concluded
that the letters were entitled to no weight.
On appeal to the Board, Alvarenga argued that the incon-
sistencies were neither material nor related to the heart of his
claim. But the Board, like the IJ, found the discrepancies suf-
ficient to sustain an adverse credibility finding. 8 U.S.C.
§ 1229a(c)(4)(C) (an IJ may make a credibility determination
“without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim”). The
Board also agreed that Alvarenga’s asylum claim was statu-
torily barred.
No. 17-2920 5
In his petition for review, Alvarenga argues that the IJ and
the Board erred in denying asylum, withholding of removal,
and protection under CAT based on a finding of adverse cred-
ibility. 2
II.
When the Board adopts and supplements an IJ’s decision,
we review the IJ’s decision along with the additional reason-
ing provided by the Board. Ndonyi v. Mukasey, 541 F.3d 702,
709 (7th Cir. 2008). We consider the decisions “under the def-
erential substantial evidence standard, meaning that we may
only reverse their factual findings if the facts compel an oppo-
site conclusion.” Tian v. Holder, 745 F.3d 822, 828 (7th Cir.
2014). We also afford significant deference to an agency’s ad-
verse credibility determination. Song Wang v. Keisler, 505 F.3d
615, 620 (7th Cir. 2007) (noting that credibility determinations
are only overturned under extraordinary circumstances).
We turn first to asylum. An applicant applying for asylum
as a refugee must credibly establish a well-founded fear of per-
secution upon return to his home country. 8 U.S.C.
§ 1101(a)(42)(A); Ahmad v. I.N.S., 163 F.3d 457, 460 (7th Cir.
1999). Asylum cases thus “often turn on the IJ’s credibility de-
termination; an adverse credibility finding will doom the ap-
plicant’s claimed eligibility.” Musollari v. Mukasey, 545 F.3d
505, 508–09 (7th Cir. 2008). This credibility determination as-
sesses the claim for consistency, detail, and the inherent
2 Alvarenga also argues that his due process rights were violated be-
cause he did not receive a fair hearing. But the record shows he was per-
mitted a reasonable opportunity to present his case, and so we find this
argument without merit. See Ambati v. Reno, 233 F.3d 1054, 1061–62 (7th
Cir. 2000).
6 No. 17-2920
plausibility of the applicant’s account. 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Capric v. Ashcroft, 355 F.3d 1075, 1085
(7th Cir. 2004). And in cases like Alvarenga’s, which are “gov-
erned by the REAL ID Act, the IJ’s authority is even
greater. … [IJs] ‘can base an adverse credibility finding on any
inconsistency, whether it goes to the heart of the applicant’s
claim or not.’” Tawuo v. Lynch, 799 F.3d 725, 728–29 (7th Cir.
2015) (quoting Georgieva v. Holder, 751 F.3d 514, 519 (7th Cir.
2014)); see § 1158(b)(1)(B)(iii).
The IJ’s adverse credibility finding here centered on the
inconsistencies in Alvarenga’s written and oral statements
about the taxi and bus incidents. These two encounters with
gang members were crucial to Alvarenga’s claim that gang
members were likely to torture him if he returned to El Salva-
dor, yet he could not keep the facts straight with respect to
either one. Alvarenga offers several explanations for the dif-
ferences: he does not speak English, his statement was pre-
pared telephonically while he was detained, and he was sent
only an English copy to sign.
But the IJ considered and rejected these arguments. He
stated that he did not “for a second, believe that [the discrep-
ancies were] based on [a] difficulty in communication.” In
fact—as the IJ and Board noted—when confronted with his
discrepancies, Alvarenga had no explanation. And when of-
fered the chance to corroborate his testimony, he provided
more dubious evidence: letters in English from his non-Eng-
lish-speaking parents. See Georgieva, 751 F.3d at 519 (stating
that if the IJ finds an applicant’s story incredible, the applicant
No. 17-2920 7
must provide corroborating evidence and explain the discrep-
ancies).
Under our deferential standard of review, “[w]e need only
assure ourselves that the IJ, and ultimately the Board, pro-
vided specific reasons based in the evidence for their credibil-
ity determinations.” Tawuo, 799 F.3d at 728–29. They did so
here. The evidence shows that Alvarenga provided conflict-
ing accounts about what happened during the taxi and bus
incidents. 3 He also failed to offer convincing corroborating
evidence or explain the discrepancies. We thus conclude that
substantial evidence supports the IJ’s and Board’s decisions. 4
III.
Because the burden for securing asylum is lower than the
burden for securing either withholding of removal or relief
under CAT, see Capric, 355 F.3d at 1095; Dandan v. Ashcroft, 339
F.3d 567, 575 n.7 (7th Cir. 2003), Alvarenga’s remaining two
claims must also fail, see Musollari, 545 F.3d at 508 n.2. Accord-
ingly, we DENY the petition for review.
3 The dissent acknowledges the discrepancies in Alvarenga’s story but
finds his account more plausible than the IJ did. That, however, is not
enough. “We will not overturn adverse credibility determinations simply
because the evidence might support an alternate finding.” Kllokoqi v. Gon-
zales, 439 F.3d 336, 341 (7th Cir. 2005). The IJ’s adverse credibility determi-
nation here was supported by the record, and we do not find the “extraor-
dinary circumstances” necessary to overturn that finding. Krishnapillai v.
Holder, 563 F.3d 606, 617 (7th Cir. 2009).
4Alvarenga’s asylum claim also fails because it is time-barred. A per-
son must apply for asylum within one year of his or her arrival in the
United States. 8 U.S.C. § 1158(a)(2)(B). Alvarenga filed for asylum three
and a half years after being detained and failed to show changed or ex-
traordinary circumstances. 8 U.S.C. § 1158(a)(2)(D).
8 No. 17-2920
DURKIN, District Judge, concurring in part and dissenting
in part. I agree with the majority that Alvarenga’s asylum
claim is time-barred under 8 U.S.C. § 1158(a)(2). But Al-
varenga seeks two other forms of relief: withholding of re-
moval and protection under the CAT. The IJ did not reach the
merits of Alvarenga’s withholding of removal and CAT
claims because he found that Alvarenga lacked credibility. I
disagree with the majority’s conclusion that substantial evi-
dence supports the IJ’s adverse credibility finding.
As the majority explains, we give substantial deference to
an agency’s adverse credibility determination. Song Wang, 505
F.3d at 620. Credibility determinations may be made “without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim.” 8 U.S.C. §
1229a(c)(4)(C). “That said, the inconsistencies spotted by the
IJ should not be trivial.” Tawuo, 799 F.3d at 727. An IJ “must
still ‘distinguish between inconsistencies … that are material
and those that are not.’” Cojocari v. Sessions, 863 F.3d 616, 620
(7th Cir. 2017) (quoting Krishnapillai v. Holder, 563 F.3d 606,
617 (7th Cir. 2009)). This Court has “‘reversed when the dis-
crepancies were minor, when they concerned irrelevant de-
tails in light of the [applicant]’s broader claim of persecution,
or when the [IJ] failed to consider the [applicant]’s reasonable
explanations offered for a discrepancy.’” Id. (quoting Tarraf v.
Gonzales, 495 F.3d 525, 532 (7th Cir. 2007)); see, e.g., Chun Sui
Yuan v. Lynch, 827 F.3d 648, 654-56 (7th Cir. 2016) (overturn-
ing adverse credibility determination where inconsistences
were trivial in the context of the applicant’s “larger claim”).
Alvarenga’s larger story has remained the same since his
credible fear interview in November 2013. During that inter-
view, in his November 2016 personal statement in support of
No. 17-2920 9
his application, and during his April 2017 testimony before
the IJ, Alvarenga described the following:
On Sunday, March 10, 2013, Alvarenga and his friends
were traveling by taxi to celebrate the birthday of a friend
from the university Alvarenga attended in El Salvador. At one
point, the taxi slowed down, and armed men approached and
ordered Alvarenga and his friends to get out. When Al-
varenga and his friends did not cooperate, the gunmen began
shooting. At one point, Alvarenga’s friend Diaz got out of the
car, distracting the gunmen, and the taxi managed to get
away. Alvarenga reported the shooting to the police and re-
quested protection, but the police said they could not help.
On the Wednesday following the taxi incident, Alvarenga
and his parents began receiving calls from men identifying
themselves as part of a gang. These men threatened to kill Al-
varenga as a witness to the taxi attack unless Alvarenga paid
them significant amounts of money. Two days later, on the
Friday following the taxi incident, Alvarenga took the bus
home from his university. At some point, several gang mem-
bers, including one of the assailants from the taxi attack, got
on the bus. After recognizing the assailant, Alvarenga jumped
off the bus, hurting his hand. The gang members chased Al-
varenga, but he escaped in a taxi. After the bus incident, Al-
varenga and his parents decided he should withdraw from
school, and he went into hiding. He left El Salvador several
months later, and he arrived in the United States in August
2013.
The IJ never acknowledged that Alvarenga’s “larger
claim,” Chun Sui Yuan, 827 F.3d at 654, remained consistent
over the course of three and a half years. Instead, the IJ fo-
cused on two discrepancies between Alvarenga’s personal
10 No. 17-2920
statement and his testimony, both of which involved the po-
sitions of various actors during the taxi and bus incidents. The
first discrepancy concerned whether Alvarenga’s friend Diaz
was seated in the front passenger seat or the middle of the
back seat during the taxi incident. The second concerned
which end of the bus the gang members boarded during the
bus incident. I view these inconsistencies as trivial when con-
sidered in relation to Alvarenga’s broader story. See, e.g., id.
(“whether the police or an ambulance took [the applicant] to
the hospital is irrelevant in light of his larger claim that he was
beaten and slashed by agents from the birth-control office,
prompting his brother and mother to call the police for help”).
The majority says the first discrepancy makes Alvarenga’s
story implausible because Diaz’s position in the middle of the
back seat as described in Alvarenga’s testimony “would have
required Diaz to climb over one or more passengers to exit the
car.” But as Alvarenga explained in both his personal state-
ment and his testimony, one of the gang members pulled an-
other of Alvarenga’s friends out of the car and shot him. 1 Al-
varenga testified that Diaz sat directly beside the friend who
was pulled out of the taxi, which explains how Diaz exited
without climbing over anyone. The fact that Alvarenga pro-
vided “greater detail” in his “live testimony” than he did in
his personal statement “is not a reason to reject [his] testi-
mony as not credible.” See id. at 655.
It is true that Alvarenga’s personal statement explained
that Diaz “got out of the front passenger seat,” and Alvarenga
1 Alvarenga’s credible fear interview was more summary
in nature and omitted this fact; it also said nothing about
Diaz’s position in the taxi.
No. 17-2920 11
testified that Diaz exited from the back. But this is not an
event about which Alvarenga can be expected to have perfect
recall. According to his testimony, the gunmen fired shots di-
rectly into the taxi where Alvarenga was sitting. He told the
IJ: “when I heard that first shot, inside the taxi, where we
were, I closed my eyes, I lowered my head and I didn’t know
anything of what was going on.” This testimony makes it less
surprising that Alvarenga got mixed up about the precise cir-
cumstances of Diaz’s exit four years after the fact.
The second inconsistency likewise is less suspicious when
considered in the context of Alvarenga’s other testimony. Al-
varenga testified that the gang members boarded the bus
from the front, and he explained in his personal statement and
his credible fear interview that they boarded from the back.
But as Alvarenga explained during his testimony, he had his
“headphones in listening to music” at the time the gang mem-
bers boarded the bus, and he noticed them “suddenly.” He
further testified that at least one gang member approached
him from “behind.”
Viewed in fuller context, I believe the IJ placed “great sig-
nificance in small variations” among Alvarenga’s personal
statement and his more detailed testimony. See Cojocari, 863
F.3d at 624. The IJ’s focus on these small variations “call[s] the
[IJ’s] overall analysis into question.” Id. at 626.
I also find the IJ’s discussion of Alvarenga’s explanations
problematic. The IJ said Alvarenga offered “no explanation”
for the two inconsistencies. The Board likewise emphasized
the lack of “explanation.” But Alvarenga’s testimony de-
scribed above offered at least a partial explanation for both
inconsistencies. He also offered an explanation when the IJ
questioned him directly: Alvarenga said that he gave his
12 No. 17-2920
personal statement over the phone and through an inter-
preter. His attorney argued at closing that “the inconsisten-
cies may be explained by the exigencies of trying to work in a
different language by phone, with a detained client.” The IJ
said he did not believe this explanation. But he did not elabo-
rate.
This Court has made clear that “reasonable explanations
for discrepancies must be considered.” Chun Sui Yuan, 827
F.3d at 653. Here, the IJ incorrectly stated that Alvarenga of-
fered “no explanation” and perfunctorily dismissed counsel’s
argument. This was insufficient consideration.
Finally, I believe the IJ improperly discounted Alvarenga’s
corroborating evidence. See Cojocari, 863 F.3d at 627-30 (over-
turning adverse credibility finding in part because IJ gave in-
sufficient consideration to corroborating evidence). In partic-
ular, the IJ should not have so quickly rejected Alvarenga’s
parents’ affidavits corroborating the facts of the taxi and bus
incidents. The majority describes these affidavits as “dubious
evidence” because they are “letters in English from his non-
English-speaking parents.” The IJ similarly gave “no weight”
to these affidavits because they are in English. But as Al-
varenga’s counsel explained to the IJ, these affidavits were
prepared through counsel’s office. After counsel “went
through the statements with [Alvarenga’s parents] … in Span-
ish” using an interpreter, counsel sent the affidavits to Al-
varenga’s parents for their signatures. In light of these repre-
sentations by counsel, the fact that the letters were in English
did not justify wholly discounting them.
The IJ noted that Alvarenga’s parents “lacked firsthand
knowledge” of many of the events described. But the IJ ig-
nored significant aspects of the affidavits about which
No. 17-2920 13
Alvarenga’s parents do have firsthand knowledge. Al-
varenga’s mother’s affidavit describes calls to the “home
phone threatening that if we didn’t cooperate with the gang
members they would not rest until [Alvarenga] was mur-
dered” and demanding “first five thousand dollars, then ten
thousand dollars.” She says she has received “over 200 calls
to [the] home phone.” And she verifies that she “made [Al-
varenga] stay inside [the] home” after the bus incident. She is
“afraid that if [Alvarenga] returns to El Salvador, he will lose
his life.” Alvarenga’s father similarly describes “constant
threats on [his] cell phone” and calls to the home phone “ask-
ing for large amounts of money.” He states: “I know [Al-
varenga] will be killed if he returns to El Salvador.” These as-
pects of the affidavits should not have gone unacknowledged.
The IJ also failed to address the further corroboration Al-
varenga offered for his story. This evidence included univer-
sity records supporting Alvarenga’s testimony that he stud-
ied engineering and played soccer from 2010 through mid-
2013. Alvarenga also submitted government reports and
news articles describing widespread corruption and gang ac-
tivity in El Salvador. These sources explain that “extortion is
a very common crime in El Salvador,” and they document the
inadequate governmental protection offered to gang crime
witnesses. This Court recently described these unfortunate re-
alities in El Salvador:
The gangs use violence to exercise an enormous
degree of social control over their territories,
dictating where residents can walk, whom they
can talk to, what they can wear, and when they
must be inside their homes…. They extort mil-
lions of dollars from local businesses through
14 No. 17-2920
threats of violence, and they are largely respon-
sible for El Salvador’s homicide rate—one of the
highest in the world.
W.G.A. v. Sessions, No. 16-4193, 2018 WL 3979276, at *1 (7th
Cir. Aug. 21, 2018).
The IJ found it “implausible … as a matter of how the
world works” that gang members would try to extort Al-
varenga and his parents three days after Alvarenga witnessed
a shooting, and that gang members would then track down
Alvarenga on a bus returning from his university. This may
not be the way the world typically works in the United States.
But Alvarenga’s sources support that it is the way the world
often works in El Salvador (as this Court has recently
acknowledged).
For these reasons, I would grant Alvarenga’s petition for
review and reverse the IJ’s adverse credibility finding. Be-
cause the Board and IJ did not decide whether, if credible, Al-
varenga’s testimony met his burden of proof, I would remand
for further consideration of the merits of Alvarenga’s with-
holding of removal and CAT claims. See, e.g., Gonzales v.
Thomas, 547 U.S. 183, 186 (2006) (federal courts may not pass
judgment on an issue the Board and IJ did not address).