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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12201
Non-Argument Calendar
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Agency No. A208-280-454
GLENDA ROSIBEL MOLINA-RIVERA,
JOSTIN DANERY CASTRO-MOLINA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 5, 2018)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Glenda Rosibel Molina-Rivera and her minor son, Jostin Danery Castro-
Molina, who are natives and citizens of Honduras, seek review of the final order of
the Board of Immigration Appeals (BIA) affirming the denial by the Immigration
Judge (IJ) of Molina-Rivera’s application for asylum pursuant to the Immigration
and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a), withholding of removal
under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), 8 C.F.R. § 208.16(c). The BIA affirmed the IJ’s denial of
Molina-Rivera’s application based on its conclusions that she was not credible, had
failed to establish a nexus between the alleged harm and a statutorily protected
ground, and had failed to establish that she would, more likely than not, be
subjected to torture with the acquiescence of a public official upon her return to
Honduras.
We review the BIA’s decision as the final judgment in an immigration
appeal. Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016) (per
curiam). When the BIA adopts or explicitly agrees with the IJ’s findings or
reasoning, we review both the BIA and the IJ to the extent of the adoption or
agreement. Singh v. U.S. Att’y Gen.,
561 F.3d 1275, 1278 (11th Cir. 2009) (per
curiam). Here, because the BIA did not explicitly agree with or adopt the IJ’s
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reasoning, we will review only the BIA’s decision. See
Gonzalez, 820 F.3d at 403;
Singh, 561 F.3d at 1278.
We review factual determinations, including credibility determinations,
under the substantial evidence test. Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1254–
55 (11th Cir. 2006) (per curiam). We must affirm the BIA’s decision “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.”
Id. We will view the record evidence “in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision.”
Id. at 1255. Accordingly, in order for us to conclude that a finding
of fact should be reversed, we must determine that the record “compels” reversal.
Id. “[T]he mere fact that the record may support a contrary conclusion is not
enough to justify a reversal.”
Id.
Credibility is judged using a totality of the circumstances test, and a trier of
fact may base a credibility determination upon several factors, including the
witness’s demeanor and candor, the inherent implausibility of the witness’s
account, the internal consistency of the witness’s own statements and the
consistency of those statements with other evidence in the record, and any
inaccuracies or falsehoods contained in the testimony. INA § 208(b)(1)(B)(iii), 8
U.S.C. § 1158(b)(1)(B)(iii). The trier of fact may consider inconsistencies,
inaccuracies, or falsehoods without regard to whether they go to the heart of the
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applicant’s claim.
Id. “Indications of reliable testimony include consistency on
direct examination, consistency with the written application, and the absence of
embellishments.”
Ruiz, 440 F.3d at 1255. An applicant’s “tenable” explanation of
the implausible aspects of her claim do not necessarily compel reversal of an
adverse credibility determination, especially if there is a lack of corroborating
evidence. Chen v. U.S. Att’y Gen.,
463 F.3d 1228, 1233 (11th Cir. 2006) (per
curiam). Moreover, an adverse credibility finding must be based on the record, not
on speculation or conjecture. Tang v. U.S. Att’y Gen.,
578 F.3d 1270, 1278 (11th
Cir. 2009).
An applicant’s credible testimony alone may be sufficient to sustain her
burden of proof in establishing her eligibility for relief from removal.
Ruiz, 440
F.3d at 1255. On the other hand, an adverse credibility determination alone may
be sufficient to support the denial of relief, though such determination does not
alleviate the burden to consider the other evidence presented by the applicant.
Id.
If an applicant produces evidence beyond her own testimony, it is not sufficient to
rely solely on the adverse credibility finding in denying the application.
Id. Once
an adverse credibility determination has been made, the burden is on the applicant
to show that the determination was not supported by “specific, cogent reasons” or
was not based on substantial evidence.
Id.
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In order to establish eligibility for asylum, the applicant must produce
specific and credible evidence to demonstrate (1) past persecution on account of a
statutorily protected ground, or (2) a well-founded fear of future persecution on
account of a statutorily protected ground.
Id. at 1257; 8 C.F.R. § 208.13(a), (b). If
the applicant demonstrates past persecution, there is a rebuttable presumption that
she has a well-founded fear of future persecution.
Ruiz, 440 F.3d at 1257; 8 C.F.R.
§ 208.13(b). If the applicant cannot show past persecution, then she must
“demonstrate a well-founded fear of future persecution that is both subjectively
genuine and objectively reasonable.”
Ruiz, 440 F.3d at 1257. The subjective
component can be proved by an applicant’s credible testimony that she genuinely
fears persecution, while the objective component can be fulfilled either by
establishing past persecution or establishing that there is a good reason to fear
future persecution.
Id. If an individual subject to removal is granted asylum, that
individual’s child, if accompanying her, may also be granted asylum, even if the
child is not otherwise eligible. INA § 208(b)(3)(A), 8 U.S.C. § 1158(b)(3)(A).
Persecution is an “extreme concept” requiring more than a few isolated
incidents of verbal harassment or intimidation, and mere harassment does not
amount to persecution. De Santamaria v. U.S. Att’y Gen.,
525 F.3d 999, 1008
(11th Cir. 2008). In determining whether an individual subject to removal has
suffered past persecution, the IJ must view the record as a whole and consider the
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cumulative effect of the allegedly persecutory acts.
Id. There is no rigid
requirement of physical injury.
Id.
The applicant must also demonstrate that a statutorily enumerated ground
“was or will be at least one central reason for persecuting” her. INA
§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). Evidence that is consistent with
acts of private violence or the petitioner’s failure to cooperate with guerillas, or
that merely shows a person has been the victim of criminal activity, does not
constitute evidence of persecution based on a statutorily protected ground.
Ruiz,
440 F.3d at 1257–58.
An applicant seeking withholding of removal must show that her “life or
freedom would be threatened in that country because of [her] race, religion,
nationality, membership in a particular social group, or political opinion.” INA
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). This showing can also be made by
establishing past persecution or a likelihood of future persecution upon removal
based on a protected ground. Rodriguez v. U.S. Att’y Gen.,
735 F.3d 1302, 1308
(11th Cir. 2013) (per curiam).
An individual subject to removal may obtain CAT relief if she establishes
that it is more likely than not that she would be tortured 1 if removed to the
1
Under 8 C.F.R. § 208.18(a)(1), “Torture” is
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proposed country of removal. Reyes-Sanchez v. U.S. Att’y Gen.,
369 F.3d 1239,
1242 (11th Cir. 2004); 8 C.F.R. § 208.16(c)(2). Acquiescence requires that a
public official, “prior to the activity constituting torture, have awareness of such
activity and thereafter breach his or her legal responsibility to intervene and
prevent such activity.” 8 C.F.R. § 208.18(a)(7).
Here, the BIA offered “specific, cogent reasons” for its adverse credibility
finding and substantial evidence supports that finding. See
Ruiz, 440 F.3d at 1255.
The BIA identified three bases supporting the IJ’s adverse credibility
determination: (1) the inconsistencies in Molina-Rivera’s testimony regarding
when the gang’s threats and extortionate demands began, (2) Molina-Rivera’s
embellishment regarding the length of her relationship with Castillo, and
(3) Molina-Rivera’s denial of knowledge regarding whether other businesses in her
city were extorted by the gang.
With respect to the first basis, the record reflects several inconsistencies
regarding when the gang’s threats and extortionate demands began. Molina-Rivera
testified at the removal hearing that the gang began extorting her mother’s business
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or her
or a third person information or a confession, punishing him or her for an act he
or she or a third person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.
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when it opened in 1999, but also testified that the extortion began in 2001, after a
gang member raped her sister. Her written supplement to her initial application
indicated that her “real problems” began in 2004, as a result of Danny’s family’s
anger about her mother’s relationship with Lito. During her testimony at the
removal proceeding, she stated that the extortion began prior to her mother’s
relationship with Lito, but death threats began in 2004. She also stated that she
believed that Danny was involved in the gang’s extortion, which began prior to her
mother’s relationship with Lito, but that she did not notice that Danny was
associated with the gang until 2004, after the relationship began. Molina-Rivera’s
sister indicated that the extortion began in 2002. As a whole, the record contained
several inconsistencies regarding when the gang’s threats and extortion began—
1999, 2001, 2002 or 2004—and regarding what motivated the threats and
extortion—the fact that Molina-Rivera’s mother opened a business, the fact that
Molina-Rivera’s sister was raped, or that fact that Molina-Rivera’s mother began a
relationship with Lito.
Molina-Rivera explained these inconsistencies by arguing that the fact that
the gang’s extortion began before her mother’s relationship with Lito does not
contradict the fact that the relationship resulted in death threats against her
family—a separate matter from the gang’s extortion. However, substantial
evidence supports the BIA’s conclusion that Molina-Rivera testified inconsistently
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regarding the circumstances surrounding the gang’s threats and extortion, and all
inconsistencies, regardless of whether they go to the heart of the claim, are relevant
to the overall credibility determination. See INA § 208(b)(1)(B)(iii), 8 U.S.C.
§ 1158(b)(1)(B)(iii). Moreover, even if Molina-Rivera’s explanation may be
tenable, that alone is not sufficient to support a reversal of the credibility finding.
See
Chen, 463 F.3d at 1233. Accordingly, these inconsistencies support the
finding that Molina-Rivera was not credible. See
id.
With respect to the second basis for the adverse credibility finding, Castillo
stated in his affidavit that he had known Molina-Rivera for 15 years. In her
testimony at the removal hearing, Molina-Rivera initially stated that she had
known Castillo for six or seven years, but eventually admitted that she had met him
in 2014, only two years before the hearing. She also acknowledged that she had
seen him only a few times. Castillo’s and Molina-Rivera’s exaggerations
regarding the length of their relationship constitute embellishments and support the
finding that Molina-Rivera was not credible. See
Ruiz, 440 F.3d at 1255. Molina-
Rivera attempts to explain her embellishment by stating that she was confused
during her testimony. This explanation, while arguably tenable, does not, on its
own, compel reversal of the credibility determination. See
Chen, 463 F.3d at 1233.
With respect to the third basis, the evidence that Molina-Rivera presented
indicated that Honduras was dominated by criminal gangs. That fact, which was
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contained in the record and not merely speculation or conjecture, provided a
reasonable basis for the BIA to conclude that Molina-Rivera would have known
whether other businesses were extorted. See
Tang, 578 F.3d at 1278. Thus,
substantial evidence supports the conclusion that this portion of Molina-Rivera’s
testimony was implausible. Accordingly, the record does not compel reversal of
the adverse credibility finding. See
Ruiz, 440 F.3d at 1255.
Moreover, as to the merits of her asylum and withholding of removal claims,
the record does not compel reversal of the finding that the gang’s threats and
assaultive conduct against Molina-Rivera were motivated by criminality and the
gang’s desire to extort the family business, rather than her membership in her
family as a particular social group. The totality of evidence presented suggests that
crime and violence at the hands of the gangs were common in Honduras. Molina-
Rivera’s own testimony, and the statements of her mother and sister, indicated that
she and her family had been victims of the gang’s crimes—namely, extortion and
assault—prior to her mother’s relationship with Lito, which is the event that
allegedly motivated the gang to target Molina-Rivera as a result of her membership
in her family. These facts constitute substantial evidence supporting the agency’s
conclusion that Molina-Rivera was a victim of criminality, and that her family
relationship was not a central reason motivating the gang’s actions against her. See
INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i);
Ruiz, 440 F.3d at 1257.
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Because asylum and withholding of removal both require a nexus between the
alleged persecution and a protected ground, substantial evidence supports the
conclusion that Molina-Rivera’s claims for both kinds of relief fail on that basis.
See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.13(b);
Ruiz,
440 F.3d at 1257.
Finally, the record does not compel reversal of the finding that Molina-
Rivera would not, more likely than not, be subjected to torture with the consent or
acquiescence of a public official upon her return to Honduras, and thus Molina-
Rivera was not entitled to CAT relief. Molina-Rivera testified that she never filed
a police report or attempted to alert law enforcement about the threats and
extortion, and thus she could not show that the police had acquiesced to the gang’s
actions against her. The background evidence also indicated that the Honduran
government had made attempts to control gang violence, though such attempts
were largely unsuccessful. These facts constitute substantial evidence supporting
the conclusion that Molina-Rivera had not established that a public official would
acquiesce to her torture. See 8 C.F.R. § 208.18(a)(7).
Accordingly, we deny Molina-Rivera’s petition.
PETITION DENIED.
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