Shirley Phelps-Roper v. Jeremiah Nixon

1Where, as here, the BIA adopts the IJ’s decision and adds its own reasoning,
this court reviews both decisions together. See Quomsieh v. Gonzales, 479 F.3d 602,
605 (8th Cir. 2007).
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-4019
___________
Oralia Gicela Cifuentes-Jocol, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Michael Mukasey, Attorney General, *
* [UNPUBLISHED]
Respondent. *
___________
Submitted: September 30, 2008
Filed: October 9, 2008
___________
Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Guatemalan citizen Oralia Gicela Cifuentes-Jocol petitions for review of an
order of the Board of Immigration Appeals (BIA), which affirmed an Immigration
Judge’s (IJ’s) denial of her application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). 1

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-2-
We grant the petition insofar as it relates to Cifuentes-Jocol’s claim for
withholding of removal based on religious persecution because, in analyzing the
claim, the IJ did not proceed according to the analytical framework of 8 C.F.R.
§ 1208.16(b). That is, the IJ did not first determine whether Cifuentes-Jocol
established past persecution on account of religion; rather, he concluded that she had
not demonstrated that it was more likely than not she would be harmed on account of
her religion if she returned to Guatemala. Because a finding of past persecution gives
rise to a rebuttable presumption “that the applicant’s life or freedom would be
threatened in the future in the country of removal on the basis of the original claim,”
8 C.F.R. § 1208.16(b)(1)(i), it was legal error for the IJ to require Cifuentes-Jocol to
demonstrate a well-founded fear of future persecution “without making the antecedent
determination as to whether [she] established past persecution,” Bushira v. Gonzales,
442 F.3d 626, 632 (8th Cir. 2006). The IJ’s error was not cured by the BIA, which
merely agreed with the IJ’s conclusion that Cifuentes-Jocol failed to establish she
would have any problem in the future in Guatemala on account of her religion. Under
these circumstances, remand is appropriate to allow the agency to make the requisite
factual and legal determinations relating to Cifuentes-Jocol’s allegations of past
persecution on account of religion. See Uli v. Mukasey, 533 F.3d 950, 956 (8th Cir.
2008); Bushira, 442 F.3d at 633.
As to Cifuentes-Jocol’s other claims, we lack jurisdiction to review the
determination that her asylum application was barred as untimely filed, see 8 U.S.C.
§ 1158(a)(3); Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir. 2007), and we
conclude the denial of her claims for withholding of removal based on political
persecution and for CAT relief were supported by substantial evidence in the record,
see Miah v. Mukasey, 519 F.3d 784, 788 (8th Cir. 2008) (standard of review for CAT
claim); Ming Ming Wijono v. Gonzales, 439 F.3d 868, 872, 874 (8th Cir. 2006)
(standard of review for withholding-of-removal claim).

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-3-
Accordingly, we deny the petition with respect to the claims for asylum,
withholding of removal based on political persecution, and CAT relief; we grant the
petition with respect to the claim for withholding of removal based on religious
persecution; and we remand for further proceedings consistent with this opinion.
______________________________

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