Carlos Jose Torrealba Guerrero v. U.S. Attorney General ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14471 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 25, 2012
________________________ JOHN LEY
CLERK
Agency No. A099-982-771
CARLOS JOSE TORREALBA GUERRERO,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 25, 2012)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Carlos Jose Torrealba Guerrero, a native and citizen of Venezuela, appeals
the Board of Immigration Appeals’s (“BIA”) order affirming the Immigration
Judge’s (“IJ”) denial of his application for asylum and withholding of removal
under the Immigration and Nationality Act (“INA”), and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”).
Guerrero’s appeal concerns only his withholding of removal claim which
provides relief when the deportee’s “life or freedom would be threatened in [the
country of removal] because of the alien's race, religion, nationality, membership
in a particular social group, or political opinion.”1 8 U.S.C. § 1231(b)(3)(A). On
appeal, Guerrero argues that the IJ did not make an adverse credibility
determination and, in the alternative, that the IJ’s credibility determination and the
BIA’s affirming decision were made in error.2
1
Guerrero does not raise any argument regarding the BIA’s dismissal of his asylum claim
and his CAT withholding of removal claim, and the issues have been abandoned on appeal.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
Guerrero also argues that he was denied his due process rights to a fair and impartial
hearing when the IJ refused to allow him to testify about his sister’s political activity and the
harm she suffered while in Venezuela, however, because Guerrero never raised this claim before
the BIA, this Court lacks jurisdiction to review it. Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1250 (11th Cir. 2006).
2
We review factual determinations, which include credibility
determinations, under the substantial-evidence test and affirm if the determination
“is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1254-55 (11th
Cir. 2006) (citation omitted).
In this case, we find that the IJ made and the BIA affirmed an explicit
adverse credibility determination and that substantial evidence in this record
supports that determination. In making the adverse credibility determination, the
IJ relied upon several inconsistencies between Guerrero’s testimony, his
application for withholding of removal, and his ex-wife’s asylum application on
which he was listed as a derivative applicant. Guerrero did not explain why his
then wife did not list him as a member of a political organization on her asylum
application despite the application’s specific query. The IJ also found it
significant that his ex-wife did not include the incidents in which Guerrero
testified that he was physically attacked near their joint home in Venezuela and the
attempted kidnaping of his daughter on her asylum application. In addition,
Guerrero did not indicate why, although he submits that he was active in the First
Justice Party since 1997, he did not detail incidents of persecution until 2005.
Given these inconsistencies, additional corroborating evidence may have helped
3
Guerrero meet his burden of proof; however, Guerrero failed to provide affidavits
from witnesses of the violent incidents that he alleges occurred, and neither his
mother nor his sister, who according to his testimony were both granted asylum
and are resident in the United States, testified at his hearing. These and other
indicia of credibility that are detailed in the IJ’s decision are supported by the
record.
In short, the IJ and BIA credibility determinations were based on substantial
evidence and this Court cannot conclude that the record compels a different
conclusion.
PETITION DENIED.
4