Garcia v. Attorney General of United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 10-1311

_____________

SILVIA MORENO GARCIA;

CLAUDIA MORENO GARCIA,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board Nos. A094-783-360 & A094-783-359)

Immigration Judge: Henry S. Dogin

______________

Argued June 21, 2011

Before: HARDIMAN and ALDISERT, Circuit Judges

and RESTANI * Judge.

*

The Honorable Jane A. Restani, Judge of the United

States Court of International Trade, sitting by designation.

(Filed: November 28, 2011)

Rosa H. Soy [Argued]

2nd Floor

85 Park Street

Montclair, NJ 07042

Attorney for Petitioners

Yedidya Cohen [Argued]

Eric H. Holder, Jr.

Kate D. Balaban

David V. Bernal

Susan K. Houser

Thomas W. Hussey

Gary J. Newkirk

Anthony C. Payne

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

_____________

OPINION OF THE COURT

_____________

HARDIMAN, Circuit Judge.

Claudia Moreno Garcia (Claudia) and Silvia Moreno

Garcia (Silvia) petition for review of an order of the Board of

Immigration Appeals (BIA) affirming the decision of an

2

Immigration Judge (IJ) rejecting their applications for

asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). Although we find

sufficient merit in Silvia‘s petition to order a remand, we will

deny Claudia‘s petition.

I1

Claudia was born on October 31, 1977, in Guatemala

City, Guatemala. In late December 1998 or early January

1999, Claudia illegally entered the United States at San

Ysidro, California. Claudia‘s younger sister Silvia was born

on April 6, 1981, also in Guatemala City. Silvia illegally

entered the United States at San Ysidro in October 2005.

A little over a year after Silvia entered the United

States, the Department of Homeland Security served Claudia

and Silvia with separate Notices to Appear, charging

removability under the Immigration and Nationality Act

(INA), 8 U.S.C. § 1182(a)(6)(A)(i). Both sisters conceded

removability but applied for asylum, withholding of removal,

and CAT protection, claiming that if they are returned to

1

To the extent the Immigration Judge‘s factual

findings are not so clearly erroneous that ―any reasonable

adjudicator would be compelled to conclude to the contrary,‖

we accept them as ―conclusive.‖ 8 U.S.C. § 1252(b)(4)(B).

See infra Part II.A. We also supplement the IJ‘s version of

the facts and correct minor misstatements therein by

including details found in Claudia‘s and Silvia‘s affidavits

and testimony, but we do so only to the extent they do not

conflict with the IJ‘s findings.

3

Guatemala, they will be persecuted by Valle del Sol, a violent

gang the Guatemalan government allegedly cannot control.

Although the sisters‘ affidavits and testimony before

the IJ indicate that their respective problems with Valle del

Sol were distinct, both traced their problems with the gang

back to their cousin, Hilda Marleny Sosa del Cid (Hilda). In

1986, shortly after Claudia and Silvia‘s father died, their

mother moved to the United States, leaving her daughters

with her sister Gloria. Hilda, who is one of Gloria‘s five

children, is roughly the same age as Claudia. The sisters‘

living situation with their aunt Gloria and cousin Hilda was

not ideal. Gloria withheld the money that Claudia and

Silvia‘s mother sent them from the United States, and Hilda

was violent and associated with gang members, one of whom,

Jorge Solis Mexicanos, became her husband. Mexicanos was

a career criminal and a leader of Valle del Sol.

II

A

We first consider Silvia‘s petition for review because it

presents a closer question than Claudia‘s petition. In the

summer of 2003, Hilda used Silvia‘s home telephone to help

Valle del Sol assassinate a prominent human rights activist

named Jose Lopez-Lopez. After the murder was

accomplished, Hilda told Silvia that gang members Juan

Carlos Munoz Castillo (aka ―Topacio‖) and Dennis

Marroquin participated in the crime and warned Silvia that

she would be killed if she helped the authorities find Lopez-

Lopez‘s killers. Silvia‘s safety concerns were exacerbated by

the fact that she was pregnant at the time and also looking

after her younger sister, Danay.

4

On August 14, 2003, the investigation of Lopez-

Lopez‘s murder led police to Silvia, who refused to cooperate

even after several hours of interrogation. At the end of their

questioning, the police left, telling Silvia they would return

the following day. Silvia then received a telephone call from

an unknown woman who told her that Hilda was concerned

that Silvia would report her to the police. The woman then

requested a meeting with Silvia in a park. Silvia declined the

invitation and went to stay with a friend instead.

The following day, Silvia met police officers at a

church. She and the officers then traveled to a restaurant

where they discussed the evidence against her (i.e., the fact

that a phone call that led to Lopez-Lopez‘s murder came from

her house). The police threatened to arrest Silvia, but she

refused to disclose any information. After leaving the

restaurant, however, Silvia learned that her house had been

ransacked. Too frightened to return home, Silvia fled to her

grandfather‘s house but was turned away because her

relatives feared retaliation from Hilda. Silvia then turned to a

lawyer who recommended she leave Guatemala City and not

tell anyone where she was going, but added that she should

call him in a few days. Silvia followed the lawyer‘s advice

and went to stay with a friend several hours away in the city

of Escuintla.

When Silvia called the lawyer, he told her there was

nothing he could do and it was unlikely any lawyer would

take her case. He explained that Silvia had two options: side

with the authorities or with Valle del Sol. That day, Silvia

contacted officials from Guatemala‘s Public Ministry and

arranged a meeting at a restaurant. Officers transported her

from the restaurant to another building where, for the first

time, Silvia agreed to give a statement implicating Hilda,

5

Topacio, and Marroquin. In return for her assistance with the

prosecution, the Public Ministry officials agreed to place

Silvia and her sister Danay in witness protection until Silvia

testified and then relocate them to another country.

While in witness protection, Silvia and Danay were

protected around the clock by armed security teams. In

addition, they were moved from hotel to hotel as many as

twelve times in three months because of potential security

breaches. At various times prior to trial, security personnel

were forced to transport Silvia and Danay in armored cars,

strictly control their food, keep them away from windows,

and arrange for a special trip to the hospital to address a

problem with Silvia‘s pregnancy.2

Silvia claimed that despite these security precautions,

Hilda threatened her over the phone. Silvia also learned that

Marroquin had evaded trial and disappeared, and that Hilda‘s

brother, Henry Sosa, was threatening Claudia and her mother

in the United States.

Silvia appeared in court twice in October 2003. The

first time, she did not testify because the defendants, Hilda

and Topacio, were not given proper notice. Two weeks later,

Silvia testified under oath outside the presence of the

defendants while wearing a disguise and a bulletproof vest.

Notwithstanding these precautions, Silvia received a phone

call from an unknown individual who said that Silvia was

being watched during her first court appearance and that if

she testified, she and Danay would be killed. The caller also

2

By the time arrangements were made for Silvia to get

to the hospital, it was too late, and she suffered a miscarriage.

6

mentioned that Henry Sosa knew where her mother and

Claudia were living in the United States.

A little over a month after Silvia testified, she and

Danay were relocated to Mexico, where the Guatemalan and

Mexican governments, along with the United Nations and

other international organizations, arranged for them to

register as refugees. In Mexico City, Silvia and Danay met

with representatives from Mexico‘s refugee commission, the

Comisión Mexicana de Ayuda a Refugiados (COMAR), as

well as two non-governmental organizations and the United

Nations. They were taken to a hotel, and Guatemalan

officials remained in Mexico City to assist in their transition.

Approximately two months later, in February 2004,

Silvia and Danay were granted refugee status in Mexico,

which permitted them to remain in the country as long as they

renewed their status annually. According to Silvia, however,

the threats persisted. In the spring of 2004, Silvia saw Dennis

Marroquin on the subway. After Silvia reported the

encounter to COMAR, she and Danay were relocated to

Guadalajara, Mexico, where they were placed in refugee

housing. Meanwhile, Hilda, who was in prison at the time,

kept calling.

In September 2005, Danay and Silvia‘s relationship

fractured, and Danay left Mexico for the United States. Silvia

claimed that for the rest of her time in Mexico, she was

discriminated against and treated poorly because of her

refugee status, which made it difficult to find a job.

Consequently, she decided to move to Tijuana, Mexico, so

she could enter the United States. Once in the United States,

Silvia moved to New Jersey where she lived with her mother

and Claudia.

7

Silvia testified before the IJ that Henry Sosa called her

in the United States and told her to recant her testimony.

Silvia refused to do so, and Hilda was convicted. Silvia also

testified that she later saw Sosa on the street in New Jersey

and that he began calling her house, telling her Hilda would

soon get out of prison and implying that some harm would

befall Silvia once Hilda was released. Silvia also testified

that Hilda has been released from prison and unsuccessfully

attempted to enter the United States.

B

The IJ issued an oral decision denying Silvia‘s

application, finding that she was barred from receiving

asylum because she had firmly resettled in Mexico before

entering the United States. Oral Decision of the IJ, Garcia &

Garcia, File Nos. A094783360 & A094783359, at 18–19

(June 2, 2008) (IJ Dec.). The IJ also determined that although

there was ―a plethora of documentation about Silvia‘s

testimony, [and] Silvia‘s assistance in the prosecution against

Hilda,‖ she was not eligible for asylum or withholding of

removal because any persecution she might face is not on

account of her membership in a cognizable ―particular social

group‖ (i.e., individuals who testify against gang members).

Id. The IJ noted that there was no corroborating evidence

regarding Sosa or the threat he might present in the future,

and that even if Sosa might look to harm Silvia, the

Guatemalan government had shown it was willing and able to

protect her. Id. at 19–21. Finally, the IJ rejected her CAT

claim citing a lack of evidence that the Guatemalan

government would acquiesce in, or turn a blind eye to, her

torture. Id. at 21.

8

Silvia appealed, and the BIA issued an opinion

affirming the IJ‘s decision. The BIA relied primarily on two

of the IJ‘s findings: (1) ―that Silvia did not demonstrate an

objectively reasonable fear of future persecution in

Guatemala because she did not show that she is unable or

unwilling to avail herself of the protection of the Guatemalan

government;‖ and (2) ―that the Guatemalan government is

willing to protect Silvia such that she cannot be considered a

‗refugee‘ within the meaning of the [INA].‖ Decision of the

BIA, File Nos. A094783360 & A094783359, at 2 (Dec. 31,

2009) (BIA Dec.) (citing 8 C.F.R. § 1208.13(b)(2)(i)(C)).

The BIA added in a footnote that it ―also concur[s] with the

[IJ]‘s alternative ruling that the harm [Silvia] fears is not on

account of a protected ground.‖3 Id. at 4 n.1. Both sisters‘

CAT claims were rejected for the reason stated by the IJ. Id.

at 2–3.

Silvia filed a petition for review, arguing that the BIA

adopted the IJ‘s opinion without providing its own analysis,

3

The IJ did not actually discuss the ―on account of‖

element of an asylum claim. We assume that the BIA was

referring to the IJ‘s finding that Silvia was not a member of a

―particular social group,‖ IJ Dec. at 19, 22, and that is the

finding we will review. The Government agrees with this

understanding of the BIA opinion. See Appellee‘s Br. at 30

n.9 (noting that the agency has not yet considered ―whether . .

. there is a nexus between the harm [Silvia] suffered or fears

and a protected ground‖).

9

and that the IJ applied an incorrect legal standard, ignored

precedent, and disregarded evidence.4

C

―We exercise de novo review over constitutional

claims or questions of law and the application of law to

facts.‖ Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.

2008) (citations omitted) (internal quotation marks omitted).

The IJ‘s factual findings ―are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.‖ 8 U.S.C. § 1252(b)(4)(B). Under this

―extraordinarily deferential standard,‖ Abdulrahman v.

Ashcroft, 330 F.3d 587, 598 (3d Cir. 2003), findings of fact

―will be upheld if [they are] ‗supported by reasonable,

substantial, and probative evidence on the record considered

as a whole.‘‖ Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d

Cir. 2009) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)).

When the BIA adopts or defers to the underlying

decision of the IJ, we review the IJ‘s opinion as the decision

of the agency. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2

(3d Cir. 2001). As the Government argues, however, ―review

4

The BIA had jurisdiction under 8 C.F.R. §§

1003.1(b)(3) and 1240.15, which grant it appellate

jurisdiction over ―[d]ecisions of Immigration Judges in

removal proceedings.‖ We have jurisdiction pursuant to 8

U.S.C. § 1252(a)(1). See also Chen v. Ashcroft, 376 F.3d

215, 221–22 (3d Cir. 2004). Venue is proper in this Court

because removal proceedings were completed in Newark,

New Jersey. 8 U.S.C. § 1252(b)(2).

10

of the immigration judge‘s decision would be proper in this

case . . . only to the extent affirmed or incorporated by the

Board.‖ Appellee‘s Br. at 21 n.3 (citing Sheriff v. Att’y Gen.,

587 F.3d 584, 588 (3d Cir. 2009)). In this case, the BIA

agreed with several of the IJ‘s findings but did not adopt all

of them. Accordingly, we may affirm the BIA‘s decision

only if we find that its stated reasons are correct, as it was the

BIA—not the IJ—that provided the final and authoritative

―grounds invoked by the agency.‖ SEC v. Chenery Corp.,

332 U.S. 194, 196 (1947); Li v. Att’y Gen., 400 F.3d 157, 163

(3d Cir. 2005) (reviewing only BIA‘s finding that ―assuming

[petitioner] was credible, he failed to establish past

persecution,‖ not IJ‘s adverse credibility determination,

because BIA did not adopt credibility finding); cf. Dia v.

Ashcroft, 353 F.3d 228, 241 (3d Cir. 2003) (holding that

under Chenery, when the BIA affirms the IJ without opinion,

we review the IJ‘s opinion as ―the grounds invoked by the

agency‖).

D

1

With the aforementioned standards in mind, we turn to

Silvia‘s petition for review. We begin by noting that Silvia

did not argue in her opening brief that the BIA erred in

denying her CAT claim, so that issue is waived. See Lie v.

Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005) (citing Nagle

v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (―When an issue is

either not set forth in the statement of issues presented or not

pursued in the argument section of the brief, the appellant has

abandoned and waived that issue on appeal.‖)). Thus we

review only Silvia‘s requests for asylum and withholding of

removal.

11

Whereas an application for withholding of removal

requires a showing that there is a ―clear probability‖ of

persecution in the country to which an applicant will be

removed, Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005)

(citing 8 U.S.C. § 1231(b)(3)(A)), an application for asylum

must establish only that the applicant is ―unable or unwilling

to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of [past]

persecution or a well-founded fear of [future] persecution on

account of race, religion, nationality, membership in a

particular social group, or political opinion,‖ 8 U.S.C. §§

1101(a)(42)(A), 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b)(1).

―[A]n applicant has a well-founded fear of persecution if . . .

[t]here is a reasonable possibility‖ that she will suffer it, 8

C.F.R. § 1208.13(b)(2)(i), and a showing of past persecution

creates a rebuttable presumption of such a well-founded fear,

8 C.F.R. § 1208.13(b)(1). The persecution ―must be

committed by the government or forces the government is

either unable or unwilling to control.‖ Sukwanputra v.

Gonzales, 434 F.3d 627, 637 (3d Cir. 2006) (citing Lie v.

Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005)).

2

The Government argues that Silvia did not establish

her ―[inability] or unwilling[ness] to avail herself of the

protection of the Guatemalan government.‖ Our review of

the record compels us to disagree.

The parties agree that Silvia‘s conflict with Hilda and

Valle del Sol began when she initially decided to assist the

Guatemalan government and seek its protection—a decision

that left her and her sister Danay under armed guard, moving

from hotel to hotel each time there was a feared security

12

breach. Ultimately, the Guatemalan authorities took the

drastic measure of working with the Mexican government, the

United Nations, and several international organizations to

obtain refugee status for Silvia and Danay in Mexico. These

extraordinary measures demonstrate that the Guatemalan

government believed there was a ―reasonable possibility‖

Silvia would be persecuted if she remained in Guatemala.

For that reason, we find no support for the BIA‘s finding that

Silvia does not have a reasonable fear of persecution if she is

returned there.

Although the Guatemalan government displayed great

willingness to protect Silvia before and after her testimony in

the Lopez-Lopez murder trial, this willingness sheds no light

on Guatemala‘s ability to protect her. The fact that

Guatemala saw fit to relocate Silvia to Mexico is tantamount

to an admission that it could not protect her in Guatemala.

Guatemala‘s decision to move Silvia may have prevented

future harm, but it does not constitute ―protection‖ in the

same way that a government‘s law enforcement apparatus

protects its people by maintaining a state of law and order.

There is nothing in the record to suggest that Guatemala will

be any better able to protect Silvia if she is returned there

now. We see no reason to doubt, then, that Silvia fears

retaliation from the same individuals and organization that the

Guatemalan government could not control eight years ago.

Accordingly, the BIA‘s finding that she has failed to meet this

element is not supported by substantial evidence.

The BIA‘s alternative holding—that any persecution

Silvia might face in Guatemala would not be based on her

membership in a ―particular social group‖—also is not

supported by substantial evidence. In Fatin v. INS, 12 F.3d

1233, 1239–40 (3d Cir. 1993), we adopted the interpretation

13

of ―particular social group‖ that the BIA announced in Matter

of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985). Under Acosta,

a ―particular social group‖ is defined as:

[A] group of persons all of whom share a

common, immutable characteristic. The shared

characteristic might be an innate one such as

sex, color, or kinship ties, or in some

circumstances it might be a shared past

experience such as former military leadership or

land ownership. [T]he common characteristic

that defines the group, it must be one that the

members of the group either cannot change, or

should not be required to change because it is

fundamental to their individual identities or

consciences.

19 I. & N. Dec. at 233. The parties agree that Silvia testified

against Hilda and other members of Valle del Sol. She

therefore shares a ―common, immutable characteristic‖ with

other civilian witnesses who have the ―shared past

experience‖ of assisting law enforcement against violent

gangs that threaten communities in Central America. It is a

characteristic that members cannot change because it is based

on past conduct that cannot be undone. To the extent that

members of this group can recant their testimony, they

―should not be required to‖ do so.5

5

The BIA has rejected a similar social group

comprised of ―noncriminal informants,‖ finding that it lacked

the ―particularity‖ and ―social visibility‖ required under the

BIA‘s new interpretation of the phrase ―particular social

group.‖ In re C-A-, 23 I. & N. Dec. 951, 957, 959–61 (B.I.A.

14

The BIA has not yet addressed several other elements

of Silvia‘s application for asylum and withholding of

removal—including whether the harm she might face in

Guatemala rises to the level of persecution, whether there

would be a nexus between any persecution and her

membership in a particular social group, and whether she was

―firmly resettled‖ in Mexico such that she is barred from

receiving asylum under 8 C.F.R. § 1208.13(c)(2)(i)(B). We

leave these matters to the BIA on remand. See I.N.S. v.

Orlando Ventura, 537 U.S. 12, 16 (2002).

III

Unlike Silvia, Claudia‘s interactions with Valle del Sol

were quite limited, she never testified against Hilda or any of

Hilda‘s associates, and she never requested protection from

the Guatemalan government. Claudia‘s claim is based on her

2006), aff’d sub nom. Castillo-Arias v. U.S. Att’y Gen., 446

F.3d 1190, 1196 (11th Cir. 2006), cert. denied sub nom.

Castillo-Arias v. Gonzales, 127 S. Ct. 977 (2007). In re C-A-

is distinguishable, however, in that it involved confidential

informants whose aid to law enforcement was not public,

whereas in this case, Silvia‘s identity is, and always has been,

known to her alleged persecutors. Moreover, in Valdiviezo-

Galdamez v. Attorney General of the United States, we held

that the BIA has failed to sufficiently explain and justify its

addition of ―particularity‖ and ―social visibility‖ to the

traditional Acosta requirements. --- F.3d ----, No. 08-4564,

2011 WL 5345436, at *22 (3d Cir. Nov. 8, 2011). Until the

BIA provides an analysis that adequately supports its

departure from Acosta, we remain bound by the well-

established definition of ―particular social group‖ found in

Fatin.

15

belief that she will be persecuted either because she is Silvia‘s

sister or because she became friendly with Hilda in 1998 and

learned about Valle del Sol activities, but then rejected what

she perceived to be attempts at recruitment into the gang.

Like Silvia, Claudia claimed that Hilda and Henry Sosa found

her and her mother living in New Jersey and threatened them

in person and by telephone. Claudia also alleged that Hilda

has since been released from prison and tried to enter the

United States, but she was turned away at the border.

The IJ found, and the BIA agreed, that Claudia‘s

asylum application was time-barred and that, in any event,

she was unable to show a clear probability of future

persecution because she never sought police protection, the

Guatemalan authorities went to great lengths to protect her

sister Silvia, and she failed to provide evidence to corroborate

her affidavit and testimony about threats. IJ Dec. at 14–18;

BIA Dec. at 2–3. The BIA also affirmed the IJ‘s holding that

Claudia was not entitled to relief under CAT because she

could not show that the Guatemalan government would

acquiesce in, or turn a blind eye to, her torture. IJ Dec. at 18;

BIA Dec. at 3. Claudia does not dispute the BIA‘s findings

that her asylum application was untimely and that she failed

to establish a claim under the CAT. Thus we review only

Claudia‘s request for withholding of removal.

To qualify for withholding of removal under the INA,

an alien must show either (1) that she has suffered past

persecution in the country of removal ―on account of race,

religion, nationality, membership in a particular social group,

or political opinion,‖ in which case, a rebuttable presumption

of future persecution applies; or (2) that she will be

persecuted in the country of removal—i.e., there is a ―‗clear

probability‘ that the alien‘s life or freedom would be

16

threatened upon her removal to a particular country,‖ Chen,

434 F.3d at 216 (quoting INS v. Stevic, 467 U.S. 407, 412

(1984)) (citing 8 U.S.C. § 1231(b)(3)(A))—for one of the

same reasons (race, religion, etc.). 8 C.F.R. § 208.16(b)(1)–

(2); Myat Thu v. Att’y Gen., 510 F.3d 405, 413 (3d Cir. 2007)

(quoting 8 U.S.C. § 1101(a)(42)(A)) (internal quotation

marks omitted). Under the ―clear probability‖ standard, the

applicant must show that persecution would ―more likely than

not‖ occur. § 208(b)(1)(iii), (2); Quao Lin Dong v. Att’y

Gen., 638 F.3d 223, 228 (3d Cir. 2011). ―[A]s with any claim

of persecution, the acts must be committed by the government

or forces the government is either unable or unwilling to

control.‖ Sukwanputra, 434 F.3d at 637 (citation omitted).

Nothing in the record compels us to reach factual

findings contrary to those reached by the IJ in respect to

Claudia‘s case. Claudia admitted during her testimony that

she never personally contacted law enforcement in Guatemala

about her interactions with Hilda and Valle del Sol, and

although she may have been understandably fearful while she

was living in Guatemala, there is nothing in the record to

support a finding that she was ever persecuted in the past.

Claudia must therefore show a clear probability of future

persecution, which she cannot do in light of the IJ‘s finding

that Claudia and Silvia failed to corroborate their testimony

about threats Claudia allegedly received after she entered the

United States. There is no reason for us to upset the IJ‘s

determination that such corroboration could reasonably be

expected and that Claudia and Silvia did not adequately

explain its absence. See Abdulai, 239 F.3d 554 (announcing

three-part inquiry for whether an application may be denied

based on a failure to corroborate). On this record, we agree

with the BIA that Claudia failed to meet her burden of

17

showing it is more likely than not that she will face

persecution in Guatemala. We will therefore deny Claudia‘s

petition for review.

IV

For the reasons stated, we will deny Claudia‘s petition

for review, grant Silvia‘s petition for review, and remand

Silvia‘s case to the BIA for proceedings consistent with this

opinion.

18