Shul-Navarro v. Holder

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [13-2271]

Case: 13-2271

Document: 00116725102

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Date Filed: 08/11/2014

Entry ID: 5844816

United States Court of Appeals
For the First Circuit
No. 13-2271
JUAN CARLOS SHUL-NAVARRO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Thompson and Barron,
Circuit Judges.

Michael Haven and Genzale & Haven, LLP on brief for
petitioner.
C. Frederick Sheffield, Office of Immigration Litigation,
Civil Division, Department of Justice, Stuart F. Delery, Assistant
Attorney General, Civil Division, and John W. Blakeley, Senior
Litigation Counsel, on brief for respondent.

August 11, 2014

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BARRON, Circuit Judge.

Date Filed: 08/11/2014

Entry ID: 5844816

Petitioner Juan Carlos Shul-

Navarro, a native and citizen of El Salvador, seeks review of a
Board of Immigration Appeals decision that dismissed his appeal
from an Immigration Judge's order that would remove him from the
United States.1

The key issue concerns whether Shul showed that he

qualifies for a special status that -- due to a determination the
Attorney General made about unsafe conditions in his home country
-- would afford him protection from being sent back to El Salvador.
Because neither the Board nor the Immigration Judge provided a
sufficient explanation for finding that Shul failed to make that
necessary showing, we vacate and remand for further proceedings.
I.
Shul entered the United States without inspection at an
unconfirmed time, and on May 14, 2001 he submitted an application
for what is known as "temporary protected status."

That status

affords aliens protection from removal from the United States upon
a determination by the Attorney General that conditions in the
alien's home country prevent the alien's safe return.
1254a.

8 U.S.C. §

The Attorney General made the triggering designation about

Shul's home country, El Salvador, after two large earthquakes

1

The Board also dismissed Shul's "motion to reconsider,"
which it treated as a motion to remand given the motion's
submission during the pendency of the appeal. In his petition to
this Court, Shul failed to address the Board's rationale in denying
the motion or even to mention the motion at all. The issue is
therefore waived. See Dawoud v. Holder, 561 F.3d 31, 37 (1st Cir.
2009).
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struck that country.

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Entry ID: 5844816

Designation of El Salvador Under Temporary

Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001).
As a result of that designation, Shul may qualify for
temporary protected status by showing, among other things, that he
has ties to the United States that started to run from certain
dates

that

had

been

set

by

the

Attorney

General.

More

specifically, Shul must show (1) that he has been continuously
physically present in the United States since the effective date of
the Attorney General's designation of El Salvador as a country
whose nationals may qualify for temporary protected status, and (2)
that he has continuously resided in the United States as of a
separate date that the Attorney General also designated.
§

1254a(c)(1)(A);

Designation

of

El

Salvador

Under

8 U.S.C.
Temporary

Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001).

By

virtue

El

of

the

Attorney

General's

designations

regarding

Salvador, Shul must prove continuous presence in this country as of
March 9, 2001 and continuous residence as of February 13, 2001.
Before deciding whether to grant Shul temporary protected
status, the Department of Homeland Security requested that he
provide additional supporting documentation.

Shul did so, but the

Department denied Shul's application on November 13, 2003.

Shul

was then not served with a Notice to Appear for removal proceedings
until 2009.

At that point, Shul filed a renewed application for

temporary protected status with the immigration court.

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Although

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Shul provided new evidence at that time, the Immigration Judge,
like the Department, found his showing insufficient.2

Shul thus

appealed to the Board of Immigration Appeals, which reached the
same result.
II.
Neither the Immigration Judge nor the Board set forth as
precisely as we might wish the exact basis for their judgment that
Shul

does

not

qualify

for

temporary

protected

status.

The

ambiguity, such as it is, concerns the scope of that judgment.

We

first must decide, therefore, what the agency decided so we can
determine what we must review.

Specifically, we must resolve

whether the Immigration Judge and the Board determined only that
Shul failed to show he was in the United States early enough to
qualify

for

temporary

protected

status

or

whether

they

also

determined that, even if he was in the United States in time, he
failed to show that he maintained a sufficient connection to the
country in the months and years that followed.

We thus begin by

parsing the agency's decisions with this question in mind. See SEC
v. Chenery Corp., 332 U.S. 194, 197 (1947) ("If the administrative
action is to be tested by the basis upon which it purports to rest,
that

basis

must

be

set

forth

2

with

such

clarity

as

to

be

The Immigration Judge also denied Shul's voluntary departure
claim, citing to Shul's conviction for marijuana possession,
numerous arrests between 2003 and 2007, and association with a
violent street gang. Shul does not challenge this discretionary
decision.
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understandable. . . . In other words, 'We must know what a decision
means before the duty becomes ours to say whether it is right or
wrong.'") (quoting United States v. Chicago, M., St. P. & P.R. Co.,
294 U.S. 499, 511 (1935)).
A.
We start with the opinion of the Immigration Judge
because the Board affirmed her decision "for the reasons" that she
provided.

See Matovu v. Holder, 577 F.3d 383, 386 (1st Cir. 2009).

The introduction to the Immigration Judge's analysis makes clear
she made at least one finding: namely, that, in her view, the
earliest "reliable" evidence "showing [Shul] in the United States
is his filing of" his initial application for temporary protected
status "on May 14, 2001."

In our view, the rest of her analysis

most naturally reads as an explanation of why she believes the
evidence Shul submitted fails to support a contrary finding on that
one key point.

And, for that reason, we read her opinion -- as

well as the Board's opinion affirming it -- to rest solely on that
factual finding and not on an additional and independent finding
that, even if Shul were in the country earlier, his ties to this
country thereafter were insufficiently continuous.

Cf. Waweru v.

Gonzales, 437 F.3d 199, 204 (1st Cir. 2006) (explaining that
"clarity

is

a

matter

of

degree,"

and,

as

such,

"the

normal

question[s]" upon review of agency action are "whether the evidence

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supports the conclusion and whether the agency's basic rationale is
clear enough to permit review").
The structure of the Immigration Judge's opinion supports
this reading.

She begins the introduction to her analysis by

stating that the Department of Homeland Security's "finding" that
Shul does not qualify for temporary protected status should be
affirmed.

She also states that, in her view, Shul's initial

application for temporary protected status represents the "earliest
evidence that is reliable" about his presence in this country. She
then notes that Shul did testify that he arrived in the United
States earlier.

Specifically, she explains that Shul testified

that he entered the United States in September 1999 -- "exact date
unknown" -- and that "he never left."
introduction

to

her

analysis

by

But she concludes the

stating

that

Shul

"has

no

documentary proof of such" and that "conflicting evidence in the
record" leads her to "have some concerns about the credibility of
his testimony."
In light of this set up, the paragraphs that follow in
the Immigration Judge's opinion appear to represent an effort to
detail the deficiencies in Shul's evidence of being in the United
States prior to May 14, 2001.

In the first several of those

paragraphs, for example, the Immigration Judge focuses on her
concerns about Shul's effort to provide documentation for his
contention.

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Case: 13-2271

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The
describes

Immigration

two

letters

Page: 7

Judge

Shul

Neighborhood Health Center.

Date Filed: 08/11/2014

begins

with

a

submitted

from

the

Entry ID: 5844816

paragraph
East

that

Boston

One letter, dated June 18, 2003,

states that Shul initially registered with the health center on May
31, 2002.

It lists no additional dates of service on which Shul

was "subsequently . . . seen" by the health center.

But the other

letter is, on its face, more helpful to Shul's effort to show he
was in the United States earlier than May 14, 2001. Dated June 23,
2011, this letter lists August 16, 2000 as when Shul initially
registered with the health center. In addition, it states Shul was
"subsequently . . . seen" by the health center once in each 2001,
2002, 2003, 2004, 2005, and 2010.
The Immigration Judge concludes in the next paragraph,
however,

that

Shul

was

"unable

to

inconsistencies" in the two letters.

adequately

explain

the

Furthermore, she notes that

the letters do not accord with other parts of Shul's testimony.
Despite Shul testifying that he had appendix surgery in or around
2007, for example, the Immigration Judge observes that neither
letter lists an entry near that date.

And while she notes that "it

is possible [Shul] was seen elsewhere," she states that "if his
treatment was at the [health center] it should have appeared on
this form."
In
Immigration

the
Judge

very

next

expresses

paragraph
the

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of

further

the

opinion,

concern

that

the
"[n]o

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underlying medical records were presented to corroborate [Shul]
having registered as the health center in August 2000 or having
been seen in July 2001."

And she adds that Shul "gave the

impression" that he had informed the health center that "he needed
information regarding earlier dates than had been placed in the
first letter issued by the health center," although the Immigration
Judge

did

acknowledge

that

"Shul

was

somewhat

vague

in

his

testimony on that point."
These inconsistencies, and other concerns, thus seem to
be set forth in order to support the Immigration Judge's decision
to discount the significance of the 2011 letter.

And because that

letter, if credited, would constitute reliable evidence that Shul
was in the United States before May 14, 2001, the Immigration Judge
appears to be pointing to this "conflicting evidence in the record"
as a reason to doubt Shul's testimony that he actually arrived in
the United States much earlier than May of that year.
The next to last paragraph of the Immigration Judge's
analysis once again appears to focus on what the evidence shows
about where Shul was during the period prior to May of 2001.

This

paragraph discusses the absence of corroborating evidence for
Shul's testimony -- testimony about which, the Immigration Judge
states, she has "serious doubts."

In particular, the Immigration

Judge points to the fact that Shul had failed to introduce evidence
from either his mother (with whom he allegedly lived in 2001) or

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brother (with whom he allegedly entered the country in 1999) to
corroborate his claims.

She also explains that Shul submitted no

rent checks or other evidence to support his claim that he began
paying rent in Boston in 2001.

Finally, she notes that no medical

or tax records were introduced that substantiated Shul's claim to
having been in the United States in 2001.
The Immigration Judge concludes her discussion of Shul's
application by stating that Shul had not met his burden to prove
"that he was residing in the United States on February 13, 2001,
and maintained continuous physical presence since March 9, 2001."
In isolation, that sentence might be read to suggest that the
Immigration Judge was actually making two independent findings -first, that Shul was not residing in the United States as of
February 13, 2001, and second, that even if he was, he failed to
show that he "maintain[ed] continuous physical presence" in the
country from

March

9,

2001

on.

But

in the

context

of

the

Immigration Judge's analysis as a whole, we do not believe that is
a fair reading.

We instead conclude that the sentence must be read

to have a more limited scope.
The sentence sets forth a conclusion that necessarily
follows from the one factual finding that the Immigration Judge did
clearly make -- namely, that Shul offered no reliable evidence to
show that he was even in the United States prior to May 14, 2001.
After all, May 14 comes after both February 13 and March 9.

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Thus,

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if the Immigration Judge is right that no reliable evidence shows
Shul to have been in the United States before May 14, then Shul
necessarily failed to show both that he was resident in the United
States as of February 13, 2001 and that he maintained a continuous
physical presence from March 9 on.
The Board's decision affirming the Immigration Judge
lends additional support to our reading.

Its three-paragraph

opinion begins by stating the basic facts of the case.

The

introductory paragraph also states that the Immigration Judge
"determined that the respondent did not satisfy his burden of proof
that he was residing in the United States on February 13, 2001, and
maintained continuous physical presence since March 9, 2001."

But

in the next and only paragraph of the opinion that addresses the
merits of the Immigration Judge's analysis, the Board focuses
solely on the finding that Shul was "unable to establish having
resided in the United States as of February 13, 2001."

The Board

thus

Shul

makes

no

separate

assessment

of

whether,

if

had

established that fact, his evidence would have been enough to show
the kind of continuous ties the law requires of those seeking
temporary protected status.
B.
Having

determined

that

the

only

finding

before

us

concerns Shul's proof about whether he was in the country before
May 14, 2001, we now examine whether the Board erred in making it.

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In doing so, we are mindful that we owe deference to an agency's
factual determinations.

See Waweru, 437 F.3d at 203.

But we are

also mindful that, in reviewing for "substantial evidence," we
still must consider the "whole record."
F.3d 34, 44 (1st Cir. 1998).
the

evidence

that

supports

Gailius v. I.N.S., 147

We do not look, therefore, only to
the

agency's

conclusion

determine whether it, standing alone, is "substantial."

and

then

Instead,

we consider that evidence alongside evidence that may point towards
a contrary conclusion and then determine whether, considered as
whole, the record supports the agency's finding. See Mukamusoni v.
Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004).
In light of these principles, we cannot say that the
finding below is supported by substantial evidence. In addition to
the June 2003 and June 2011 letters discussed above, Shul submitted
another letter from the East Boston Neighborhood Health Center.
Dated September 19, 2000, this letter states that it is accompanied
by Shul's health plan card, and the letter directs Shul to call the
health center should he have any questions or concerns.3

This

letter thus plainly seems to indicate not only that Shul was in
Boston as of September 2000, but also that he was sufficiently
established

there

to

have

sought

3

out

and

received

a

formal

The original version of the September 19, 2000 letter is in
Spanish. Pursuant to immigration court rules of procedure, Shul
submitted to the immigration court a notarized English translation
in addition to the original. See 8 C.F.R. § 1003.33.
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connection

to

this

health

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care

Date Filed: 08/11/2014

provider.

But

Entry ID: 5844816

neither

the

Immigration Judge nor the Board mentioned, let alone discussed,
this letter.

And they failed to do so even though it plainly

appears to contradict the only finding made below: that Shul was
not in the United States before May 2001.
Perhaps

both

the

Immigration

Judge

and

the

Board

consciously disregarded the September 2000 letter and did so for a
sufficient reason.

If so, they provided no explanation of their

reasoning -- or even an indication that they considered the letter
at all.

We thus cannot conclude that the record as a whole

supports the one finding on which the agency appears to have based
its judgment.4

See Gailius, 147 F.3d at 44 (agency must "'set

forth'" basis for its decision "'with such clarity as to be
understandable,'" and reviewing court "'must judge the propriety of

4

The Immigration Judge's opinion could be read to imply that
the health center's record-keeping is insufficiently reliable to
provide a reason to trust the June 2011 letter. But even if we
assume that is so, the 2000 letter is not a reconstruction of past
events. Rather, it was sent to Shul contemporaneously with his
receipt of a health card.
Unlike the 2003 and 2011 letters,
therefore, it reflects a real-time artifact of a tie to the health
center that Shul had apparently just then established. In fact, if
anything, the 2000 letter -- delivered to Shul before he had even
initiated his application for temporary protected status -- would
seem to corroborate the June 2011 letter's listing of August 2000
as the date of Shul's registration. That timing for his initial
registration would seem to comport with the health center sending
him a health plan card in early September. That said, whatever the
fair import of the 2000 letter might be, including what it may
suggest about the reliability of the 2011 letter, is not for us to
say in the first instance. See Hernandez-Barrera v. Ashcroft, 373
F.3d 9, 22 (1st Cir. 2004) (agency must decide factual issues "in
the first instance").
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[administrative] action solely by the grounds invoked by the
agency'") (quoting Chenery, 332 U.S. at 196); cf. Turcios v.
I.N.S., 821 F.2d 1396, 1399 (9th Cir. 1987) (immigration judges
should "offer 'a specific, cogent reason for [their] disbelief'")
(quoting Damaize-Job v. I.N.S., 787 F.2d 1332, 1338 (9th Cir.
1986)).
In

reaching

this

conclusion,

we

accept

that

the

Immigration Judge had "serious doubts" about the credibility of
Shul's testimony. The Immigration Judge occupies "the best vantage
point

from

which

to

assess

the

witnesses'

testimonies

and

demeanors," and "we accord significant respect to these witness
credibility determinations." Cuko v. Mukasey, 522 F.3d 32, 37 (1st
Cir. 2008).

But we do not see why the Immigration Judge's doubts

about Shul's credibility -- "serious" though they were -- provide
a

sufficient

basis

for

discounting

the

reliability

of

the

information contained in a letter sent directly by the health
center.
The 2000 letter, like the one sent in 2011, appears on
health center letterhead, and the health center appears in the
signature block. Neither the Board nor the Immigration Judge raise
any doubts about its authenticity, nor does the record provide the
basis for any.

And while the Immigration Judge's opinion could be

read to raise the concern that the 2011 letter was produced only
upon Shul asking for some indication of earlier ties to the health

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center than the 2003 letter from the health center showed, that
same concern would not apply to the 2000 letter.

That letter was,

as we have noted, sent before Shul had even applied for temporary
protected status.

It thus appears to have been sent for reasons

entirely unrelated to Shul's effort to prove residency.

As a

consequence, this case would seem to be one in which, contrary to
the Immigration Judge's and the Board's finding, the petitioner's
testimony "did appear to be corroborated by specific documentary
evidence."

Gailius, 147 F.3d at 45.
III.
In short, both the Immigration Judge and the Board failed

to explain adequately the only finding they expressly made in
considering Shul's application for temporary protected status: that
Shul failed to provide "reliable" information that he was even "in"
the United States as of May 14, 2001.

For that reason, we must

vacate the Board's decision affirming the Immigration Judge's order
and remand to the Board for further proceedings consistent with
this opinion.
On

remand,

the

Board

may

seek

to

explain

why

--

notwithstanding the September 2000 letter and the corroboration of
it that the 2011 letter seems to provide -- Shul was not in the
country soon enough to be eligible for temporary protected status.
Alternatively, the Board may address the distinct issue of whether,
even if Shul was in the country at that time, he failed to show the

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kind of continuous ties thereafter that the law requires of those
applying for temporary protected status.

Such a determination

would need to rest on a review of the evidence that bears on that
distinct issue. That determination would also need to consider the
evidence in light of the fact that "brief, casual, and innocent
absences from the United States" do not disrupt continuity of
presence or residence.

8 U.S.C. § 1254a(c)(4)(A), (B).

But

however the Board chooses to proceed, "[i]t is not the role of this
court to determine in the first instance whether [Shul] met his
burden"

to

prove

eligibility

for

temporary

protected

status.

Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 22 (1st Cir. 2004).

We

instead must confine our review to the reasons the agency itself
actually gave for its decision -- reasons which, we have explained,
were not adequate in this instance.
the Board is vacated and remanded.

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Accordingly, the decision of