De Gerodetti v. U.S. Attorney General ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
SEP 20, 2011
JOHN LEY
No. 10-15278 CLERK
Non-Argument Calendar
________________________
Agency No. A088-080-175
AMPARO ABREU DE GERODETTI,
FABIANA GERODETTI ABREU,
FRANCO CARLO GERODETTI BONA,
ADRIAN GERODETTI ABREU,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 20, 2011)
Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Amparo Abreu De Gerodetti seeks review of the Board of Immigration
Appeals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”) adverse
credibility determination and corresponding denial of her application for asylum
under the Immigration and Nationality Act (“INA”).1 De Gerodetti, a native and
citizen of Venezuela, claimed past persecution and a well-founded fear of future
persecution by members of the “Bolivarian Circles” because of her participation in
two signature drives leading up to a referendum to recall Venezuelan President
Hugo Chavez’s election. De Gerodetti’s asylum application was denied based on
findings that she was not credible and did not present sufficient evidence to
corroborate her testimony. After review, we dismiss in part and deny in part the
petition for review.
On appeal, De Gerodetti challenges the IJ’s adverse credibility
determination.2 An asylum applicant must show, with specific and credible
1
The IJ also denied De Gerodetti’s request for withholding of removal and relief under the
United Nations Convention Against Torture (“CAT”). De Gerodetti did not appeal these rulings
to the BIA. Thus, we lack jurisdiction to review her claims of withholding of removal and CAT
relief. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006)
(explaining that this Court lacks jurisdiction to review claims not exhausted before the BIA).
Further, De Gerodetti did not offer argument as to these claims in this Court, thus abandoning
them. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (stating that
when a party fails to offer argument on an issue, that issue is abandoned). Accordingly, we
dismiss De Gerodetti’s withholding of removal and CAT claims.
2
The BIA affirmed the IJ’s adverse credibility determination and elaborated upon some of
the IJ’s reasoning. Thus, we review the IJ’s adverse credibility finding as supplemented by the
BIA. See Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006). Our review of
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evidence, either past persecution or a “well-founded fear” of future persecution on
a protected ground. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir.
2005); 8 C.F.R. § 208.13(b). While credible testimony “may be sufficient to
sustain the applicant’s burden without corroboration,” Immigration and
Nationality Act (“INA”) § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii), the
weaker an applicant’s testimony, the greater the need for corroboration. Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Conversely, an adverse
credibility determination alone may support a denial of an asylum claim, but if the
applicant produces evidence other than her testimony, the IJ and the BIA must
consider this evidence as well. See Forgue, 401 F.3d at 1287.
In making an adverse credibility finding, the IJ must be explicit and offer
“specific, cogent reasons” for the finding. Id. Pursuant to 8 U.S.C.
§ 1158(b)(1)(B)(iii), as amended by the REAL ID Act, the IJ, in evaluating
credibility, must consider the “totality of the circumstances,” including:
demeanor, candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under oath, and
credibility determinations is “highly deferential,” and “we may not substitute our judgment for
that of the Board.” Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008)
(quotation marks and brackets omitted). Credibility determinations are reviewed under the
substantial evidence test, and we will not overturn them unless the record compels it. Forgue v.
U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir. 2005).
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considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the
Department of State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.
INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii); see also Chen v. U.S. Att’y
Gen., 463 F.3d 1228, 1233 (11th Cir. 2006).3
Additionally, “[w]here the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible testimony, such evidence
must be provided unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.” INA § 208(b)(1)(B)(ii), 8 U.S.C.
§ 1158(b)(1)(B)(ii). “Once an adverse credibility finding is made, the burden is on
the applicant alien to show that the IJ’s credibility decision was not supported by
‘specific, cogent reasons’ or was not based on substantial evidence.” Forgue, 401
F.3d at 1287.
De Gerodetti does not dispute that the IJ gave specific, cogent reasons for
finding her not credible. De Gerodetti also does not dispute the existence of an
inconsistency between her hearing testimony and other evidence in the record as to
3
Because De Gerodetti filed her asylum application after May 11, 2005, the REAL ID
Act’s amendments apply to her case. See REAL ID Act of 2005, Pub. L. No. 109-13,
§ 101(h)(2), 119 Stat. 231, 305 (2005).
4
the date she was attacked by the Bolivarian Circles. She merely argues that this
inconsistency should not have been used to discredit her testimony because “it is
possible [the inconsistency] was simply a lapse of memory,” and “[i]t simply
appears that during testimony Petitioner got the year 2003 and 2004 confused.”
We conclude that the adverse credibility finding was supported by substantial
evidence and that the IJ and the BIA properly relied upon the date inconsistency in
evaluating De Gerodetti’s credibility.
At her merits hearing, De Gerodetti repeatedly testified that she was
attacked on November 28, 2004, while participating in the second signature
collection drive leading up to the recall referendum. This testimony was
inconsistent with: (1) the U.S. Department of State Country Reports on Human
Rights Practices for Venezuela for the years 2004, 2005 and 2008 and the 2009
U.S. Department of State Background Note for Venezuela, which indicated that
the second signature drive occurred several months after November 2003 (when
the first signature drive ended) and August 2004 (when the recall referendum took
place); and (2) De Gerodetti’s asylum application and asylum interview, in which
she stated that the attack during the second signature drive occurred in November
2003.
5
When the IJ pointed out the discrepancy to De Gerodetti and gave her an
opportunity to explain it, De Gerodetti insisted that the events occurred in
November 2004 and offered no further explanation. Moreover, in her appeal to
the BIA, De Gerodetti continued to insist the events occurred in November 2004.
Thus, Gerodetti never offered her memory lapse explanation to the IJ or the BIA.4
In any event, a tenable explanation for an inconsistency generally does not compel
reversal of the IJ’s credibility finding, especially where, as here, the IJ also found
a lack of corroborating evidence. See, e.g., Chen, 463 F.3d at 1233. Furthermore,
to the extent De Gerodetti characterizes the inconsistency regarding the date she
was attacked as minor, after the REAL ID Act, an adverse credibility
determination may be based on inconsistencies that do not go “to the heart of the
applicant’s claim.” See INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii).
In addition, the IJ and the BIA highlighted the fact that De Gerodetti failed
to submit sufficient corroborating evidence. This finding is also supported by
substantial evidence. The letters De Gerodetti submitted from friends and family
in Venezuela: (1) were undated; (2) with one exception, were not notarized or
4
Notably, De Gerodetti’s newly-offered explanation that she merely confused 2003 and
2004 does not explain the inconsistency with the State Department documents. Accepting De
Gerodetti’s explanation, she meant to testify that she was participating in the second signature
drive and attacked on November 28, 2003. However, the State Department documents indicate
that the second signature drive did not begin until sometime in the beginning of 2004.
6
otherwise sworn; (3) lacked detail as to the authors; and (4) did not provide any
specific information about the alleged incidents of harm De Gerodetti claimed to
have suffered.
The vast majority of the articles and internet postings De Gerodetti
submitted have no relevance to De Gerodetti’s claims as their content ranges from
drug trafficking and terrorism to freedom of expression and the press in
Venezuela. Five documents generally concern political discrimination and
Chavez’s use of fear to maintain his power, including using the Bolivarian Circles,
who claim to be apolitical, but reportedly were armed by President Chavez and
injured demonstrators at an April 11, 2002 protest. However, none of these five
documents corroborates De Gerodetti’s claims that the Bolivarian Circles targeted
people who participated in the two signature drives leading up to the August 2004
recall referendum.
Finally, De Gerodetti did not submit any documents corroborating her
membership in either the COPEI party or Sumate or the nature of her participation
with these organizations. Although De Gerodetti explained that she was unable to
get documents verifying her COPEI membership because the new leadership of
COPEI did not know De Gerodetti and was afraid to send verification, both the IJ
and the BIA found this explanation unpersuasive.
7
De Gerodetti points to the 2004 Country Report, which indicates that
President Chavez and officials in his administration attacked the independent
media, the political opposition, labor unions, the courts, the church and human
rights groups. Government supporters took these attacks as “tacit approval of
violence” and threatened and physically harmed “at least dozens of individuals
opposed to Chavez.” Although the 2004 Country Report discusses the signature
drives and recall referendum, it does not link any threats or attacks by government
supporters to these events. The 2004 Country Report does not compel a
conclusion that De Gerodetti’s testimony was credible.
Because we conclude that the findings as to De Gerodetti’s credibility and
the lack of corroboration are supported by substantial evidence, we do not address
De Gerodetti’s argument that her testimony established past persecution or a well-
founded fear of future persecution. Furthermore, De Gerodotti does not argue that
other evidence in the record, absent her discredited testimony, compels a
conclusion that she was persecuted or has a well-founded fear of persecution.5
5
De Gerodetti’s husband, Franco Carlo Bona De Gerodetti, and her minor son, Adrian
Abreu De Gerodetti were included on De Gerodetti’s asylum application as derivative
beneficiaries. Although our opinion refers only to De Gerodetti, our holding as to the asylum
claim applies equally to her husband and minor son. De Gerodetti’s adult daughter, Fabiana
Abreu De Gerodetti, was over 21 years old when De Gerodetti filed her asylum application and
thus was not entitled to derivative benefits under the asylum statute. See INA § 208(b)(3), 8
U.S.C. § 1158(b)(3). Although Fabiana filed a separate asylum application, she did not appeal its
denial to the BIA, and De Gerodetti’s BIA brief mentioned her daughter only in passing.
8
PETITION DISMISSED IN PART, DENIED IN PART.
Because Fabianna did not exhaust her administrative remedies, we lack jurisdiction to review her
separate asylum claim and dismiss her appeal. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1).
9