Tony Arias-Hernandez v. Loretta Lynch

Filing

OPINION filed : The petition for review is DENIED, decision not for publication. Julia Smith Gibbons, Circuit Judge (Authoring) ; John M. Rogers, Circuit Judge and David W. McKeague, Circuit Judge.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0200n.06

FILED

No. 16-3279
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

TONY ARIAS-HERNANDEZ,

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Petitioner-Appellant,
v.
JEFF B. SESSIONS, Attorney General,
Respondent-Appellee.

Apr 04, 2017
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: GIBBONS, ROGERS, and McKEAGUE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge.

Tony Arias-Hernandez, a Honduran

citizen, seeks review of a Board of Immigration Appeals (the Board) decision denying his
application for withholding of removal. Because Arias-Hernandez did not establish that he was
eligible for such relief, and because his hearing before the immigration judge was otherwise
consistent with due process, we deny his petition.
I.
Tony Arias-Hernandez is a native and citizen of Honduras. He entered the United States
without inspection on August 5, 2007. On October 11, 2012, the Department of Homeland
Security (DHS) served Arias-Hernandez with a Notice to Appear.

DHS charged Arias-

Hernandez with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being an alien present in the
United States without being admitted or paroled.

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Arias-Hernandez filed an I-589 application on February 6, 2013, seeking withholding of
removal1 based on his membership in a particular social group, namely, his family. A hearing
was held before an immigration judge on April 15, 2013, during which Arias-Hernandez testified
and elaborated on many of the statements contained in his I-589. His I-589 and the April 15
hearing provided the following facts. Arias-Hernandez and his family became involved in a
“blood feud” in Honduras when his uncle Arturo murdered a member of the Flores family in La
Lucha, Honduras, in November 2000. As a result of the murder, “members of the Flores family
would always try to go after” Arias-Hernandez and his family, and eventually a Flores family
member, Olman, murdered Arturo. AR at 312. The police investigated Arturo’s death, but were
unable to arrest the perpetrator.
Sometime following Arturo’s death, Arias-Hernandez was allegedly attacked by Olman
in La Lucha. This attack was purportedly thwarted when a young woman intervened. Although
the assailant was armed with a machete, Arias-Hernandez escaped unhurt.
Following this attack, Arias-Hernandez moved to El Zapote, Honduras. Arias-Hernandez
stated that he and his family were “safe in El Zapote,” but that his uncle Nelson, who remained
in La Lucha, was allegedly attacked by the Flores family, receiving several cuts but ultimately
surviving. AR at 312. After living in El Zapote for approximately six years without incident,
Arias-Hernandez was again attacked by the Flores family when he returned to La Lucha in 2007
to visit family and friends. During this attack, several members of the Flores family held AriasHernandez down and beat him with a machete. He was able to escape with only minor wounds
when bystanders intervened. Arias-Hernandez claims that he reported both this incident and the
earlier attack by Olman to the police, but that “they didn’t pay attention.” AR at 164. Following

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Arias-Hernandez also sought asylum in his I-589 application but does not assert that ground for relief on

appeal.

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the 2007 attack, Arias-Hernandez left Honduras. He testified that he is afraid to return because
the “Flores family will torture or kill [him].” AR at 313.
In addition to his testimony at the April 15 hearing, Arias-Hernandez submitted several
pieces of documentary evidence into the record. First, he submitted six affidavits from friends
and family living in La Lucha that explained, in varying levels of detail, the feud between AriasHernandez’s family and the Floreses. Second, he provided death certificates for his mother,
father, and Arturo, although the causes of death were not listed. Third, he submitted a 2008 U.S.
Department of State Crime and Safety Report on Honduras, a 2011 U.S. Department of State
report on human rights in Honduras, and various news articles discussing general crime in
Honduras.
The immigration judge (“IJ”) issued an oral decision on May 30, 2014, denying AriasHernandez’s application for withholding of removal. As an initial matter, the IJ found AriasHernandez to be an incredible witness based on his testimony that was not only internally
inconsistent, but also inconsistent with his I-589 application. As relevant here, the IJ noted that
Arias-Hernandez had given inconsistent testimony concerning dates for a number of events that
were critical to his withholding-of-removal claim. For example, he had originally stated, in both
his testimony and his I-589, that Arturo killed the Flores family member in November 2001, but
later changed that date to November 2000 after cross-examination. Likewise, although originally
testifying that Arturo was murdered in March 2002, Arias-Hernandez later conceded, after being
presented with Arturo’s death certificate, that the murder had occurred on August 7, 2001.
Finally, when asked when he was attacked by Olman, Arias-Hernandez provided five different
dates between his hearing testimony and his I-589: (1) “shortly after [Arturo] had killed the
Flores man,” which occurred in 2000; (2) August 2001, “a few days after they killed [Arturo]”;

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(3) September 2001, a month after Arturo was killed; (4) February 2002; and (5) March 2002.
AR at 102, 151, 171–72, 312.
Next, the IJ found that Arias-Hernandez had failed to present sufficient corroborative
evidence to rehabilitate his discredited testimony or independently satisfy his burden of proving
eligibility for withholding of removal.

The IJ concluded that, given the “remarkabl[e]

similar[ity] in both content and wording,” in addition to their misspelling of Arias-Hernandez’s
middle name, the affidavits in the record were entitled to little evidentiary weight. AR at 104.
Likewise, the IJ noted that Arias-Hernandez had failed to provide an affidavit from his uncle
Nelson confirming Nelson’s attack at the hands of the Flores family. Finally, the IJ found that
Arias-Hernandez had not sufficiently explained the absence of any police reports detailing the
attacks against him.
Alternatively, the IJ held that, even if Arias-Hernandez was found to be credible, he still
had not established his eligibility for withholding of removal because he had not shown “past
persecution” or a “well-founded fear of future persecution,” nor had he shown that the Honduran
government was “unwilling or unable to control” the Flores family. AR at 104–09. The IJ also
concluded that Arias-Hernandez could reasonably relocate within Honduras without fear of
future harm.
Arias-Hernandez appealed to the Board, arguing that the IJ had deprived him of a full and
fair hearing in violation of due process because of his “frequent and irrelevant interruptions.”
AR at 31–35. The Board affirmed. It first found that the IJ’s adverse-credibility determination
was not clearly erroneous because it was based on “specific and cogent reasons, including
omissions and inconsistencies within the respondent’s testimony and when compared to the

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documentary evidence.”2 AR at 4. The Board also agreed that Arias-Hernandez had failed to
“present sufficient corroborative evidence to rehabilitate his discredited testimony or
independently satisfy his burden of proof.” Id. Accordingly, the Board found that AriasHernandez had not satisfied his burden of showing eligibility for withholding of removal.
Finally, the Board held that Arias-Hernandez’s immigration hearing was consistent with due
process. Arias-Hernandez filed a timely petition for review.
II.
Where the Board reviews an immigration judge’s decision and issues a separate opinion,
we treat it as the final agency determination. Sanchez-Robles v. Lynch, 808 F.3d 688, 691–92
(6th Cir. 2015) (citations omitted). To the extent the Board adopted the immigration judge’s
reasoning, however, “this court also reviews the immigration judge’s decision.” Id. at 692.
Questions of law are reviewed de novo, while factual findings are reviewed under the substantial
evidence standard. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005). Under this latter
standard, findings of fact are “conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Marouf v. Lynch, 811 F.3d 174, 180 (6th Cir. 2016) (quoting 8
U.S.C. § 1252(b)(4)(B)).
III.
To qualify for withholding of removal, Arias-Hernandez must show that it is more likely
than not that he will be persecuted upon his return to Honduras “on account of race, religion,
nationality, membership in a particular social group, or political opinion.” Umana-Ramos v.
Holder, 724 F.3d 667, 674 (6th Cir. 2013) (quoting 8 U.S.C. § 1231(b)(3)(A)); Marouf, 811 F.3d
at 179. This may be shown in two ways. If Arias-Hernandez can show past persecution on
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Although Arias-Hernandez failed to challenge the IJ’s adverse-credibility determination in his brief before
the Board, the Board nonetheless reviewed this determination. Accordingly, we also review the adverse-credibility
finding, and do so under the substantial-evidence standard.

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account of a protected ground, there is a presumption that his “life or freedom [will] be
threatened in the future.” 8 C.F.R. § 208.16(b)(1)(i). Without showing past persecution, he can
succeed by showing that, because of a protected ground, it is more likely than not that his life or
freedom will be threatened upon return.

Id. § 208.16(b)(2).

Both avenues of relief are

precluded, however, if he can avoid persecution by reasonably relocating to another part of
Honduras. Id. § 208.16(b)(1)(i)(B), (b)(2); see Melchor-Reyes v. Lynch, 645 F. App’x 381, 384
(6th Cir. 2016).

Because the Board’s adverse-credibility determination is supported by

substantial evidence and Arias-Hernandez cannot otherwise show he was entitled to withholding
of removal, we affirm the Board’s decision denying such relief.
A.
The testimony of an applicant may alone be sufficient to establish eligibility for
withholding of removal, “but only if the trier of fact finds the testimony to be credible.” Lulonga
v. Holder, 410 F. App’x 897, 899 (6th Cir. 2010) (citation omitted); see also 8 U.S.C.
§ 1229a(c)(4)(B). Credibility determinations are findings of fact reviewed under the substantial
evidence standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004). Although “an adverse
credibility finding is afforded substantial deference, the finding must be supported by specific
reasons.”

Chagnaa v. Holder, 430 F. App’x 508, 511 (6th Cir. 2011) (citation omitted).

Because Arias-Hernandez filed his application for withholding of removal in February 2013, he
is subject to the more stringent standards of the REAL ID Act of 2005. See Amir v. Gonzales,
467 F.3d 921, 925 n.4 (6th Cir. 2006). Under this Act, credibility determinations are made by
considering the “totality of the circumstances,” and may be based on any inconsistency or
inaccuracy, regardless of whether the inconsistency goes to the heart of the applicant’s claim. 8
U.S.C. § 1229a(c)(4)(C).

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The Board relied on two inconsistencies in Arias-Hernandez’s testimony in affirming the
IJ’s adverse-credibility finding.

First, the Board observed that Arias-Hernandez had given

inconsistent dates for when Arturo was killed by the Flores family member and only corrected
his testimony after being shown Arturo’s death certificate. Second, the Board noted that AriasHernandez had provided at least five different dates for when he was first attacked by Olman
following Arturo’s death. These inconsistencies are evident from the record and, under the
REAL ID Act, they are sufficient to support an adverse-credibility finding. See 8 U.S.C.
§ 1229a(c)(4)(C) (emphasis added); El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009).
Accordingly, the Board’s adverse-credibility determination is supported by substantial evidence.
See El-Moussa, 569 F.3d at 255–56 (noting that an “adverse credibility determination . . . is
conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”
(citation omitted)).3
B.
The Board also properly held that Arias-Hernandez had not presented “sufficient
corroborative evidence to rehabilitate his discredited testimony or independently satisfy his
burden of proof.” AR at 4–5. As an initial matter, Arias-Hernandez failed to present reasonably
available corroborative evidence to support his claims. “Regardless of whether an applicant is
credible or not credible, if it is ‘reasonable to expect corroborating evidence for certain alleged
facts pertaining to the specifics of an applicant’s claim, such evidence should be provided.’” Ali
v. Holder, 534 F. App’x 286, 291 (6th Cir. 2013) (quoting Dorosh v. Ashcroft, 398 F.3d 379, 382
(6th Cir. 2004)). “The absence of such corroborating evidence can lead to a finding that an
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Although Arias-Hernandez proffers several excuses for his inconsistent testimony on appeal—e.g.,
“confusion,” the passage of time—these arguments were not presented to the Board and are thus waived. See Hasan
v. Ashcroft, 397 F.3d 417, 420 (6th Cir. 2005) (noting that an issue is “waived if it is not argued in the brief filed
with the [Board]”). Moreover, “a plausible explanation for an inconsistency, standing alone, is not enough for [this
court] to reverse an IJ’s adverse-credibility determination.” Ali, 534 F. App’x at 291.

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applicant has failed to meet [his] burden of proof.” Id. The Board’s determination as to the
availability of corroborating evidence should not be reversed unless a “reasonable trier of fact
[would be] compelled to conclude that such corroborating evidence is unavailable.” Id. at 292.
As the Board noted, Arias-Hernandez failed to present “evidence to establish that any
written police reports he allegedly made in Honduras were lost or destroyed in a flood.” AR at 5.
When questioned why he had not submitted these police reports into the record, Arias-Hernandez
testified that they were lost when the “whole municipality of Marcovia was flooded.” AR at
164–66. When asked why he did not obtain a police statement indicating this fact, he replied
that he had “asked them for [a] letter,” but that “[t]hey never gave [him] the letter.” Id. at 166.
As the Board found, however, Arias-Hernandez did not provide any corroborative evidence that
these reports were actually lost in a flood, much less that this flood had even occurred. And he
offered no explanation as to why he could not have submitted news articles or other documentary
evidence confirming the existence of this flood, or otherwise attesting to the fact that he had filed
these reports. See Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir. 2007) (noting that the petitioner
failed to provide affidavits, newspaper articles, or a reasonable explanation for the absence of
such corroborating evidence), superseded by statute on other grounds as stated in Marikasi v.
Lynch, 840 F.3d 281 (6th Cir. 2016). Because Arias-Hernandez failed to adequately explain why
this corroborating evidence was unavailable, the Board reasonably relied on the absence of this
evidence in making its determination. See Ali, 534 F. App’x at 292.
Likewise, Arias-Hernandez provided no evidence that his uncle Nelson was also attacked
by the Flores family. Despite allegedly obtaining affidavits from six other friends and family
members, Arias-Hernandez did not submit one from Nelson, nor did he explain why he failed to
do so. Because it is reasonable to assume, absent an explanation to the contrary, that Arias-

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Hernandez could have procured an affidavit from Nelson verifying the alleged attack, the Board
reasonably considered Arias-Hernandez’s failure to provide such corroborative evidence in
denying relief. See Dorosh v. Ashcroft, 398 F.3d 379, 383 (6th Cir. 2004) (finding that even
though “contact may not have been convenient, regular, or private, it was sufficient to have
allowed Petitioner to obtain a previous letter from her mother in which her mother documented
her own mistreatment”); Ali, 534 F. App’x at 292–93 (finding that petitioner could have
reasonably obtained affidavits from friends and family when there was evidence in the record
that he “kept in contact” with them).
As to the corroborative evidence actually submitted, the Board correctly held that it was
insufficient to independently satisfy Arias-Hernandez’s burden of proof. Specifically, the Board
properly found that the six affidavits in the record were of questionable authenticity because they
contained statements that “were remarkably similar in both content and wording.” AR at 4–5.
For example, two of the affidavits provided the exact same statement regarding AriasHernandez:
[T]here are always bad people around him that killed his uncle in the year two
thousand one (2001), as this memory will always be with him, they arranged to
take the life of the young man Tony Leonel Arias Hernandez, but because he was
young when he was persecuted he looked for refuge and the help of the auxiliary
of the community, but for this reason he had to emigrate to that country to search
for help, leaving his grandmother, a very old person, but she had to accept that he
left for the salvation of her grandson, because they continually followed him to
kill him, he had to leave on August 1, 2007.
AR at 210, 212. Given the duplicative language in both affidavits, the Board’s determination
that they had questionable authenticity and should be afforded little weight is supported by
substantial evidence. And because these two affidavits were of questionable authenticity, it was
also appropriate to doubt the legitimacy of the remaining four affidavits under the doctrine of

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falsus in uno, falsus in omnibus—false in one, false in all. Cf. Masiko v. Holder, 562 F. App’x
469, 473 (6th Cir. 2014).
Moreover, even if the Board had taken the affidavits at face value, see Jin Chen v.
Holder, 417 F. App’x 525, 528 (6th Cir. 2011), they still fail to mention that Arias-Hernandez
had witnessed Arturo’s murder, that Arias-Hernandez had been attacked by Olman, or that
Nelson had been attacked by the Flores family.

Excluding Arias-Hernandez’s incredible

testimony, therefore, the record is devoid of any credible evidence that these events actually
occurred. And, although the State Department reports describe general societal violence existing
in Honduras, that is insufficient to qualify for withholding of removal. See Mendez-Coronado v.
Holder, 374 F. App’x 601, 605 (6th Cir. 2010).
Given Arias-Hernandez’s incredible testimony, as well as the dearth of corroborative
evidence in the record, he cannot meet his burden of establishing eligibility for withholding of
removal. See El-Moussa, 569 F.3d at 257. Accordingly, the Board’s decision denying such
relief was supported by substantial evidence.
IV.
Arias-Hernandez further contends that his immigration hearing violated due process. The
record compels a different conclusion. “Fifth Amendment guarantees of due process extend to
aliens in [removal] proceedings, entitling them to a full and fair hearing.” Hassan v. Gonzales,
403 F.3d 429, 436 (6th Cir. 2005) (citation omitted). In order to prevail on his due process
claim, Arias-Hernandez must establish both “error and substantial prejudice.” Garza-Moreno v.
Gonzales, 489 F.3d 239, 241 (6th Cir. 2007) (citation omitted).

“To trigger due process

concerns, any error must have been such as might have led to a denial of justice.” Hachem v.
Holder, 656 F.3d 430, 435 (6th Cir. 2011).

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Arias-Hernandez alleges that he was denied a “full and fair hearing and suffered
prejudice” because the IJ interrupted his testimony “twenty-two” times. CA6 R. 14, Pet.’s Br., at
16. He claims that these interruptions “precluded him from fully setting forth his claim in
violation of his . . . statutory right to present evidence on his own behalf.” Id. at 19. As the
Board found, however, immigration judges have “broad discretion in conducting their hearings.”
Ahmed v. Gonzales, 398 F.3d 722, 725 (6th Cir. 2005). This discretion includes the ability to
“interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. 1229a(b)(1).
And the “mere intimidation or interruption by a judge does not render a hearing unfair.” Ahmed,
398 F.3d at 725. Review of the transcript shows that the IJ’s interruptions (of both sides) were
nothing more than attempts to clarify answers or to obtain further information in order to fully
develop the factual record. See Hachem, 656 F.3d at 435; Abdulahad v. Holder, 581 F.3d 290,
296 (6th Cir. 2009). Even when he was abrupt, “[b]y forcing [Arias-Hernandez’s] counsel to get
to the point, the IJ did no more than exercise his quasi-judicial powers to control the pace of the
hearings, and to focus the hearings on relevant matters.” Ivezaj v. I.N.S., 84 F.3d 215, 220 (6th
Cir. 1996), superseded by statute on other grounds as stated in Ramani v. Ashcroft, 378 F.3d
554, 560 (6th Cir. 2004). There was no due process violation here.
Nor was there “substantial prejudice.”

Garza-Moreno, 489 F.3d at 241.

Arias-

Hernandez has “not identified what material facts, if any, were omitted from the record.”
Abdulahad, 581 F.3d at 296. At most, he claims that the IJ’s interruptions prevented him from
fully explaining his past persecution, which he alleges resulted in an adverse-credibility
determination. But the record reflects that he was given ample opportunity to, and did, fully
explain his past persecution. And he has offered no other instance of persecution of which he
was unable to testify. Besides, the adverse-credibility determination was based not on the

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paucity of detail in his testimony, but rather on his inability to provide a consistent timeline for
important events. The IJ’s questioning had no bearing on these inconsistencies.
Because Arias-Hernandez has established neither constitutional error nor prejudice, we
affirm the Board’s denial of his due process claim.
V.
For the foregoing reasons, the petition for review is denied.

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