Fernando Demetrio Cadena Chunza v. US Atty. Gen. ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11903 JAN 12, 2010
Non-Argument Calendar JOHN LEY
ACTING CLERK
________________________
Agency Nos. A099-635-620, A099-635-621
FERNANDO DEMETRIO CADENA CHUNZA,
MERLENY FARIAS SANCHEZ,
LAURA ESTEFANY CADENA FARIAS,
MARIA FERNANDA CADENA FARIAS,
NATALIA CADENA FARIAS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 12, 2010)
Before CARNES, WILSON and FAY, Circuit Judges.
PER CURIAM:
Fernando Demetrio Cadena Chunza is a native and citizen of Colombia. On
his own behalf and for his wife and three children, he seeks review of the Board of
Immigration Appeals’ decision affirming the Immigration Judge’s denial of his
application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (CAT). He contends that the evidence compels a finding
that the Revolutionary Armed Forces of Colombia (FARC) persecuted him based
on his direct or imputed political opinion and that the IJ erred in making an adverse
credibility determination. He also argues that he was denied due process.
We review only the BIA’s decision, “except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). In the present case the BIA did not expressly adopt the IJ’s opinion, so we
will review only the BIA’s decision.
We review the BIA’s credibility determination, which is a factual finding,
under the “substantial evidence test.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1255 (11th Cir. 2006). Under the substantial evidence test, we must affirm the
BIA’s decision if it is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Al Najjar, 257 F.3d at 1284. We
will not reverse a finding of fact by the BIA unless the record compels it. Adefemi
v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Evidence in the
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record that may also support a conclusion contrary to the administrative findings is
not enough to justify a reversal. Id.
In his asylum application, Cadena Chunza stated that he was threatened by
FARC and that he “was deprived of [his] freedom and [his] work equipment was
destroyed.” He asserted that “[t]he Threats occurred because of the commercial
and political activity carried out in the region.” He stated that he believed he
would be harmed or mistreated by FARC “for not following their political
parameters imposed by them and for not collaborating with their cause.”
(capitalization omitted). He also stated that he was a member of “the Political
Movement ‘Equipo Colombia.’” (capitalization omitted). He sought asylum or
withholding of removal based on his political opinion or membership in a
particular social group.
In a declaration attached to his asylum application, Cadena Chunza stated
that he supported candidates in the city council (Municipal Council of Acacías) and
mayoral races. He explained that because he owned a well-known business, FARC
had been alerted to his activities, and members of FARC harassed him. He
participated in political campaigns through “Equipo Colombia,” which FARC
considered to be its “political enemy.” His declaration asserted that FARC
threatened Cadena Chunza and his family with kidnapping and death, and FARC
members destroyed the rented machinery that he used in his business.
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In his hearing before the IJ, Cadena Chunza testified that he was captured
and detained for two days by FARC guerillas. During that incident Commander
Ugo threatened him with death if he continued his political work. Cadena Chunza
was released unharmed, and when he tried to file a complaint with local police, he
was told that the incident did not occur in their jurisdiction. He also testified about
FARC members making visits to his store and making threatening phone calls that
were answered by his secretary, who told him about the calls. He stated that FARC
members referred to one of his daughters as being old enough to carry a weapon.
On cross-examination Cadena Chunza testified that he believed his asylum
application’s general references to threats by FARC covered the specific instances
that he testified about at the hearing. His asylum application, however, did not
mention those specific events.
The IJ made an adverse credibility determination and found that Cadena
Chunza had failed to establish past persecution or a well-founded fear of future
persecution. The IJ’s adverse credibility determination was based on findings that
Cadena Chunza’s asylum application, which was vague and lacked detail,
contained serious omissions. In particular, the IJ observed that Cadena Chunza’s
application did not refer to the kidnapping incident, which was central to his claim
for asylum. Other details omitted were: the threatening calls received by his
secretary; FARC guerillas’ visit to his store followed by Cadena Chunza’s calling
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the police; the threat about his daughter being old enough to carry a rifle. The
BIA agreed that an adverse credibility finding was supported by the omissions in
the application and its lack of specificity and detail about incidents that allegedly
occurred in Colombia.
Cadena Chunza contends the IJ’s adverse credibility determination was
based on a “few unimportant discrepancies” that were “trivial,” irrelevant to the
heart of his claim, insufficient to make such a finding, and not supported by
specific, cogent reasons. He argues that persuasive evidence explained the alleged
inconsistencies and supported his allegations of persecution. He also contends that
he was denied his due process rights.
As an initial matter, Cadena Chunza has failed to present any specific
argument about how his due process rights were allegedly violated. He broadly
asserts that the IJ and the government took “actions” that were “unreasonable,” but
he says nothing about what those actions were. He also concludes that “[t]he
omissions committed by the IJ and the BIA constitute a violation of his due
process of law,” but he does not specify what the omissions were. Because he has
failed to make an argument, his claim about a due process violation is waived. See
Philmore v. McNeil, 575 F.3d 1251, 1259 (11th Cir. 2009) (“Other than a cursory
allegation of a Fifth Amendment deprivation, Philmore makes no argument and
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provides no citation of authority as to how this right was violated. Consequently,
Philmore has abandoned this claim.”).
As to the credibility determination, Cadena Chunza argues that “the IJ’s
credibility determination relied largely on unimportant or explicable
discrepancies.” Adverse credibility is assessed in light of the totality of the
circumstances and may be based on inaccuracies or falsehoods that do not “go[] to
the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).1 Cadena Chunza
omitted from his asylum application several significant incidents involving
FARC’s threats against him and his family. He failed to provide plausible
explanations for why those omissions occurred and merely stated his belief that all
of those specific events were encompassed by his application’s general reference to
FARC threatening him and his family.
The application asks: “Have you, your family, or close friends or colleagues
ever experienced harm or mistreatment or threats in the past by anyone?” It
instructs the applicant, if the answer to that question is “yes,” to “explain in detail”
what happened. Cadena Chunza testified that he completed the application with
the assistance of an attorney. Even so, in response to the “what happened”
1
In the REAL ID Act of 2005, Congress amended the law regarding credibility
determinations for asylum applications filed after May 11, 2005. See Pub. L. No. 109-13, 119
Stat. 302, § 101(h)(2). Cadena Chunza’s application was filed after that date, so 8 U.S.C. §
1158(b)(1)(B)(iii) applies.
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question he provided only a general statement: “Threats against my life and my
family’s life. Also I was deprived from my freedom and the work equipment was
destroyed.”
Based on Cadena Chunza’s testimony, the IJ focused on the specific events
that Cadena Chunza had omitted from his application. The BIA also found that the
application “contained generalities and a lack of detail, and omitted significant
events that he had described during his testimony.” Based on those omissions, the
BIA agreed with the IJ’s adverse credibility determination. The IJ and the BIA
presented “specific, cogent reasons” in favor of an adverse credibility
determination. See Forgue v. United States Att’y Gen., 401 F.3d 1282, 1287 (11th
Cir. 2005). Thus, the BIA did not err in finding that Cadena Chunza’s testimony
lacked credibility because of the material omissions in his asylum application. See
id. (holding that an asylum application’s omission of specific events of alleged
persecution is enough to support an adverse credibility determination).
Substantial evidence in the record as a whole supports the BIA’s denial of
Cadena Chunza’s asylum application based on its adverse credibility
determination. See Forgue, 401 F.3d at 1287–88. Because Cadena Chunza “has
failed to establish a claim of asylum on the merits, he necessarily fails to establish
eligibility for withholding of removal or protection under CAT.” Id. at 1288 n.4.
PETITION DENIED.
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