Richardo Alfonso Melo-Saganome v. U.S. Atty. Gen. ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11632 April 16, 2007
________________________ THOMAS K. KAHN
CLERK
BIA Nos. A26-969-866 & A95-895-710
RICARDO ALFONSO MELO-SAGANOME,
ANGELA ALEXANDRA BULLA-PEDRAZA,
STEPHANNY J. LEON-BULLA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision
of the Board of Immigration Appeals
________________________
(April 16, 2007)
Before DUBINA and COX, Circuit Judges, and SCHLESINGER,* District Judge.
PER CURIAM:
*
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
The principal petitioner Ricardo Alfonso Melo-Saganome, his wife, Angela
Alexandra Bulla-Pedraza, and step-daughter, Stephanny J. Leon-Bulla, petition this
court for review of the Board of Immigration Appeals’ (BIA’s) order summarily
affirming the immigration judge’s (IJ’s) order of removal and denial of their
application for asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (CAT).1 Melo-Saganome challenges on appeal whether
substantial evidence supported the IJ’s and BIA’s adverse credibility determination
and the IJ’s and BIA’s determination that he was not eligible for asylum, withholding
of removal, or CAT relief. For the reasons set forth below, we deny the petition.
I. PROCEDURAL HISTORY
Melo-Saganome, a native and citizen of Bogota, Colombia, and his wife and
step-daughter first entered the United States without inspection on October 1, 1995.
Melo-Saganome’s wife and step-daughter have not departed the U.S. since their
arrival, but Melo-Saganome returned to Colombia from December 2001 to January
2002. He re-entered the United States on January 15, 2002 without inspection. On
July 8, 2002, Melo-Saganome filed an application for asylum, withholding of
removal, and relief for himself, his wife, and his step-daughter, alleging persecution
1
Because Melo-Saganome is the lead petitioner and his wife and child are derivative
applicants, we refer to “Melo-Saganome” for convenience.
2
based on nationality, political opinion, and membership in a particular social group.
At the immigration court proceedings, Melo-Saganome testified and submitted
documents to corroborate his testimony. The IJ denied Melo-Saganome’s application
and ordered Petitioners removed from the United States to Colombia. Melo-
Saganome appealed to the BIA, which denied his appeal in a one-paragraph per
curiam decision.
This petition for review followed.
II. ORIGINAL APPLICATION AND SUPPORTING DOCUMENTS
We outline the facts as they appear in Melo-Saganome’s original asylum
application and supporting documents. According to Melo-Saganome, he was
employed by the police as an escort to Liberal Party politicians in Colombia starting
in 1992. Melo-Saganome contends he and his family began receiving threats in 1994.
Because of his employment, he was not permitted to actively engage in political
activities, but his application included a statement that his wife had participated in
Liberal Party activities during her employment with a radio broadcasting station in
Colombia.2 Because of this, Melo-Saganome and his wife received death threats from
the Revolutionary Armed Forces of Colombia (FARC), which had identified them as
2
On Melo-Saganome’s application for asylum, he answered “yes” to the question of whether
he or his “family members ever belonged to or been associated with any organizations or groups”
in Colombia. (AR at 436.)
3
“chosen political military target[s].” (AR at 440.) Melo-Saganome also stated that
FARC guerillas demanded that he provide information on his boss, whom they
intended to kill, and that his wife “pass a message from the FARC.” (Id.)
Additionally, according to his statement, FARC guerillas assassinated Melo-
Saganome’s police partner, whom they mistakenly believed to be him, and his wife’s
boss, who participated with the Liberal Party. He also contends that they abducted
his half-brother, a Liberal Party leader.
In his statement, Melo-Saganome noted that he returned to Colombia alone in
December 2001 to resettle with relatives. A few days after his return, he contends
that several men arrived at his sister’s home around 4:00 p.m. looking for him. These
men “beat” his cousin and warned that Melo-Saganome would “not escape from
[them] this time.”3 (AR at 442.) After this incident, Melo-Sagnome fled Colombia
for the second time.
3
To support this claim, the application contained a complaint that Melo-Saganome filed
with the Attorney General’s office at 3:45 p.m. on December 24, 2001, in which he stated that
around 10:30 a.m. that day, individuals–at least one of whom was armed–arrived at his mother’s
house looking for him. The individuals argued with his cousin, who had answered the door, and
warned that Melo-Saganome would not “get away alive” and would “end up with [a] mouth full of
flies.” (AR at 314.) Melo-Saganome was hiding “under the bed of [his] sister’s daughter” during
this confrontation. (Id.) Melo-Saganome’s family contacted the police, who advised him to file a
complaint with the Attorney General’s Office. According to the complaint, Melo-Saganome testified
that he was unsure why the individuals were after him, although he had received a letter from the
FARC warning him not to become a member of the Liberal Party or to work for the Community
Action Board, and an obituary. Melo-Saganome also noted that, because of the obituary, he had
moved to Mexico, but had returned to Colombia on December 23rd, one day before the December
24, 2001 incident.
4
Melo-Saganome included the following supporting documents in his original
application: (1) a letter from the president of the Municipal Council of San Francisco
stating that Melo-Saganome fled Colombia because of FARC threats; (2) letters from
the president of the Community Action Board noting that Melo-Saganome and his
wife received death threats from outlawed groups because he was a communal leader
in charge of handling State projects and she was involved in politics and
distinguished for supporting programs and events on the radio; (3) Melo-Saganome’s
resume, indicating he worked for the National Police; (4) a letter from the Iglesia
Bautista Misionera de la Gracia stating that Melo-Saganome collaborated with the
Church in Charity and was forced to flee Colombia for security reasons; (5) a letter
certifying that Melo-Saganome’s wife was secretary of the Manager’s Office for a
radio station and that she resigned voluntarily; and (6) various other public records
including birth certificates, passports, a Florida marriage application, and a letter
granting asylum to a family member.
In August 2002, the Immigration and Naturalization Service (INS)4 issued a
notice to appear to Melo-Saganome, his wife, and his step-daughter, charging them
with removability under Section 212(a)(6)(A)(I) of the INA for being present in the
4
The Immigration and Naturalization Service is now a part of the Department of Homeland
Security. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228, n.1 (11th Cir. 2005).
5
United States without being admitted or paroled. At a hearing before the IJ, Melo-
Saganome admitted the factual allegations contained in the notice to appear and
conceded removability.
At the asylum hearing, Melo-Saganome submitted the following additional
supporting documents: (1) a complaint filed with the Colombian Attorney General’s
Office in which Melo-Saganome stated that his half-brother, a Liberal Party leader,
was abducted by FARC guerillas while campaigning and had not been heard from
since; (2) a complaint to the Public Prosecutor’s Office from Melo-Saganome’s
cousin stating that he was unable to answer his telephone any longer because of
anonymous telephone threats, which he had been receiving for the past ten months,
seeking the whereabouts of Melo-Saganome; (3) a September 17, 2004
acknowledgment from the public prosecutor that Melo-Saganome’s sister-in-law
received a letter, with the inscription of FARC EP, that threatened Melo-Saganome
and his wife; (4) a letter from a councilman for the Municipality of Funza stating that
Melo-Saganome’s wife was a leader in the Liberal Party and she was forced to flee
Colombia because of her participation in the Party; (5) a statement from Melo-
Saganome’s wife’s aunt discussing that, on May 17, 2003, two self-identified FARC
guerillas were waiting for her at her house after work and warned that they would find
Melo-Saganome to kill him; and (6) a statement from Melo-Saganome’s sister-in-law
6
that, on May 24, 2003, FARC guerillas appeared at her house asking for Melo-
Saganome. Melo-Saganome also submitted a second statement that reiterated many
of the facts set forth in his original asylum statement.
III. THE ASYLUM HEARING
Melo-Saganome testified during the asylum hearing that he and his wife first
received threats from the FARC in 1994, because he worked for the National Police
as a personal escort to Liberal Party officials and she was involved in Liberal Party
politics through her job at a radio station. Melo-Saganome stated that the FARC
demanded at that point that he reveal secrets about his boss, whom the FARC wanted
to murder, and that his wife make public announcements in favor of the FARC.
Melo-Saganome’s wife quit her job and they fled Colombia in October 1995 because
of the death threats and the assassination of her boss, among other reasons. Melo-
Saganome said that he did not apply for asylum at that time both because he was
afraid to do something that might affect his family in Colombia and he did not intend
to remain away from Colombia for long.
He explained that on December 1, 2001, he returned alone to Bogota,
Colombia. He contacted the Liberal Party to find work and later received a job
paving streets for the Community Action Board. Melo-Saganome discussed
receiving a letter from the FARC a few days later stating that he could not work for
7
the government or the Liberal Party. At first he did not pay much attention to the
letter because he believed that it was sent from someone who was envious of him.
The following week, however, he received a death threat in the form of a condolence
letter. Melo-Saganome also testified that two armed individuals arrived at his
mother’s house in the early morning hours of December 24, 2001 looking for him.
These individuals insulted and shoved his cousin, who had answered the door, and
they identified themselves as FARC guerillas as they were leaving. Melo-Saganome
further testified that his brother disappeared on December 27, 2001while traveling to
attend a political campaign. Melo-Saganome fled Colombia for the second time on
January 10, 2002.
On cross-examination, Melo-Saganome admitted that his wife had worked only
indirectly for the Liberal Party by making political announcements on behalf of the
Liberal Party, but had never been an elected member of the party and, thus, her face
had never been displayed on the television or in a newspaper. Melo-Saganome also
testified that he had two children from a previous marriage, a sister, a brother, and a
sister-in-law who still lived in Colombia. These two children lived with his ex-wife
on the outskirts of Bogota, but he had never revealed their exact location to anyone
in order to protect them.
8
The Government also cross-examined Melo-Saganome about the
inconsistencies between his original asylum application statement and his testimony.
When asked why the original statement indicated that the December 24, 2001 incident
occurred at his sister’s house, while he testified that it occurred at his mother’s house,
Melo-Saganome responded that they lived together. When asked why the original
statement indicated that the December 24, 2001 incident occurred at 4:00 P.M., while
he testified that it occurred at 10:30 A.M., Melo-Saganome answered that the incident
occurred at 10:30 A.M. and he reported the incident to the Attorney General’s Office
at 4:00 P.M. When asked why the original statement indicated that the December 24,
2001 incident occurred a few days after his return to Colombia in early December of
2001, while he testified that it occurred on December 24, 2001, the IJ interjected that
Melo-Saganome testified that he received the FARC letter and condolence card a few
days after returning to Colombia, but the other incident occurred on December 24th.
Melo-Saganome also testified that he wrote by hand the original application
statement in Spanish, and that someone translated the statement into English without
him reviewing it. He submitted the second statement to explain further what
happened to him in Colombia and to correct errors in the first statement, which he
admitted making.
9
The IJ denied the application for asylum, withholding of removal, and CAT
relief, concluding, in part, that inconsistencies in Melo-Sagaonome’s testimony and
evidence about the primary incident that Melo-Saganome pointed to in support of his
application “seriously undermines his credibility.”5 (AR at 200.) The IJ explained
that she found Melo-Saganome not to be credible “[i]n view of the inconsistencies .
. . and [his] failure to explain satisfactor[ily] these inconsistencies.” (AR at 201-02.)
In support of this adverse credibility finding, the IJ cited inconsistencies in Melo-
Sagaonome’s original asylum statement and his testimony and supplemental
statement regarding the December 24, 2001 incident which was, according to the IJ,
“the major incident on which [he was] relying as the reason for leaving his country.”
(AR at 200.) Specifically, the IJ noted: Melo-Saganome stated in his original
statement that the December 24, 2001 incident occurred “a few days after his return,”
but, December 24th was not a few days from December 1st, the day he returned to
Colombia (AR at 199); the original statement indicated that the FARC guerillas
arrived at the house around 4:00 P.M., whereas Melo-Saganome’s supplemental
statement indicated that they arrived at 10:30 A.M. (AR at 200); and the original
5
The IJ listed all of the documents submitted by Melo-Saganome and noted that she had
considered these documents in rendering her decision. (AR at 187-88.)
10
statement indicated that the FARC guerillas arrived at Melo-Saganome’s mother’s
house, while he testified that the guerillas arrived at his sister’s house. (AR at 200.)
The IJ concluded that Melo-Saganome failed to prove past persecution because
he did not show that he was arrested, detained, or harmed by the Colombian
government or a group that it was unable to control. Moreover, the IJ found that
Melo-Saganome did not submit anything to prove that his brother was in fact missing
or the reason for his disappearance.
The IJ also held that Melo-Saganome did not establish a well-founded fear of
future persecution. In support of this holding, the IJ pointed out that Melo-Saganome
had sufficient grounds to apply for asylum in 1995, when he first fled Colombia, but
“[t]he fact that he did not apply for asylum [at that time] negates any fear that [he]
claims to have in Colombia.” (AR at 199.) Moreover, the IJ found that Melo-
Saganome had not presented credible, sufficient, consistent or persuasive evidence
to establish a well-founded fear of future persecution.
As for withholding of removal, the IJ concluded that Melo-Saganome did not
present credible and sufficient evidence to prove that his life or freedom would be
threatened because of his political opinion or any other protected ground if he was
returned to Colombia. Additionally, the IJ found that Melo-Saganome was not
11
entitled to withholding of removal because he did not satisfy the lower burden of
proof required for asylum.
Finally, with respect to CAT relief, the IJ found that Melo-Saganome presented
no evidence that he was tortured in Colombia or that it was more likely than not that
he would be tortured if returned to Colombia.
IV. THE BOARD OF IMMIGRATION APPEALS
Melo-Saganome appealed to the BIA and included in his appellate brief a
request to consider new evidence, specifically, the U.S. Department of State
Colombia Country Reports on Human Rights Practices for 2004 (“2004 Country
Report”) and a Report to Congress on United States Policy Towards Colombia and
Other Related Issues (“Colombia Report”). The 2004 Country Report noted that
FARC kidnaped, tortured and killed, among others, members of the security forces.
Forced disappearances, many of them politically motivated, continued to be a
problem. The Colombia Report noted that the Colombian government and its citizens
were under attack by the FARC and other illegal groups whose methods included
murder and kidnaping. However, the Colombian government, with the United States’
assistance, was combating these groups.6
6
It is unclear whether the BIA considered this new evidence.
12
The BIA adopted and affirmed the IJ’s decision. The BIA added that it found
Melo-Saganome’s testimony that he was threatened within days of his return to
Colombia six years later to be implausible, given his testimony “indicating that he
was threatened in 1994 – not on account of his political activities but rather to obtain
information about the candidate to whom he was assigned as the police escort.” (AR
at 2.)
V. CONTENTIONS OF THE PARTIES AND ISSUES ON APPEAL
Melo-Saganome argues that the IJ and BIA’s adverse credibility determinations
are not supported by substantial evidence. He contends that his oral testimony and
written affidavit were consistent, with only minor inconsistencies that do not reach
the level of providing a reasonable ground on which to make an adverse credibility
finding. He maintains that the IJ failed to consider his corroborating evidence in
making the credibility determination, and that the BIA relied on an unsubstantiated
finding that distorted his testimony and written affidavits. Additionally, Melo-
Saganome contends that the IJ and BIA improperly determined he was ineligible for
asylum, withholding of removal, or CAT relief.
The Government responds that substantial evidence supports the adverse
credibility findings. It argues that Melo-Saganome did not explain satisfactorily the
discrepancies between the application and his testimony. Additionally, the
13
Government maintains that substantial evidence supports the findings that Melo-
Saganome did not suffer past persecution, does not have a well-founded fear of
persecution, and failed to establish eligibility for protection under the CAT.
We consider whether substantial evidence supports the IJ’s determinations that
Melo-Saganome (1) was not credible; (2) failed to establish that he was a victim of
past persecution; (3) failed to establish that he has a well-founded fear of future
persecution; and (4) failed to establish eligibility for protection under the CAT.
VI. STANDARD OF REVIEW
Because the BIA adopted and affirmed the IJ’s decision and added its own
reasons, we review both decisions. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). We review factual determinations under the substantial evidence
test, upholding the BIA’s decision if it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502
U.S. 478, 481, 112 S. Ct. 812, 815 (1992) (quoting 8 U.S.C. § 1105a(a)(4)); see also
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817-18 (11th Cir. 2004). This is a
highly deferential standard, and we disturb the IJ’s decision only if Melo-Saganome
has shown that the evidence he presented was “so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.” Elias-Zacarias, 502
U.S. at 484, 112 S. Ct. at 817. The IJ’s credibility determination is a finding of fact
14
and thus judged by the same test. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th
Cir. 2006).
VII. DISCUSSION
To qualify for asylum or withholding of removal, an asylum applicant must
present “credible, direct, and specific evidence in the record.” Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (quoting Sangha v. INS, 103 F.3d 1482,
1487 (9th Cir. 1997)). The IJ found Melo-Saganome lacked credibility, and the BIA
affirmed, adding that Melo-Saganome’s testimony was implausible.
We sit as a reviewing body engaging in a highly deferential review of BIA and
IJ credibility findings. See Al Najjar, 257 F.3d at 1278 (citing INS v. Aguirre-
Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 1446 (1999)). Once the IJ or BIA makes
an adverse credibility finding, the burden is on the applicant to show that the
“credibility decision was not supported by ‘specific, cogent reasons’ or was not based
on substantial evidence.” Forgue, 401 F.3d at 1287 (quoting D-Muhumed, 388 F.3d
at 819). We review this credibility determination under the substantial evidence test
and “may not substitute [our] judgment for that of the BIA with respect to credibility
findings.” D-Muhumed, 388 F.3d at 818. In short, the IJ and BIA’s determination
that Melo-Saganome was not credible “may not be overturned unless the record
15
compels it.” Id. at 819 (quoting Lopez De Jesus v. INS, 312 F.3d 155, 161 (5th Cir.
2002)).
Considering this deferential standard of review, we conclude that Melo-
Saganome has not met his burden of showing that the adverse credibility finding was
not supported by specific cogent reasons or was not based on substantial evidence.
Both the BIA and the IJ gave specific, cogent reasons for the adverse credibility
finding. The IJ found that Melo-Saganome presented inconsistent evidence and
testimony as to what occurred regarding the incident of December 24, 2001, and
found that Melo-Saganome failed to adequately explain why the first statement he
filed with his asylum application contained material discrepancies regarding the date,
time, and place of that event. The BIA adopted this finding and further added,
Given the respondents’s testimony indicating that he was
threatened in 1994–not on account of his political activities
but rather to obtain information about the candidate to
whom he was assigned as the police escort, we find
implausible the respondent’s claim that he was again the
target of threats within days of his return to Colombia 6
years later.
(AR at 2) (citation to record omitted).
Melo-Saganome presented evidence to corroborate his claims, but the IJ
pointed out that he gave different accounts of what happened on December 24th in
the corroborating documents he submitted, as well as during his testimony in court.
16
The IJ also explained that the incident on December 24th was “the major incident on
which the respondent is relying as the reason for leaving his country, his inability to
provide consistent information regarding that incident seriously undermines his
credibility.”7 (AR at 200.) We can only disturb the IJ’s decision if Melo-Saganome
has presented evidence that is so compelling that no reasonable factfinder could find
as the IJ did. See, e.g., Elias-Zacarias, 502 U.S. at 483-48, 112 S. Ct. 817. Melo-
Saganome has not done so.8
Melo-Saganome’s arguments that he established eligibility for asylum,
withholding of removal, or CAT relief rely in large part on his testimony in front of
the IJ. Because we conclude that the IJ did not err in making her adverse credibility
finding, we need not discuss further these arguments.
We are also unpersuaded by Melo-Saganome’s claim that the IJ failed to
consider his corroborating documents. The IJ not only listed the corroborating
7
Some circuits have held discrepancies in petitioners’ asylum claims are only an adequate
basis for an adverse credibility findings when those discrepancies involve matters that are at the heart
of the asylum claim. See, e.g., Gao v. Ashcroft, 299 F.3d 266, 272 (3rd Cir. 2002); Vilorio-Lopez
v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988). In light of the IJ’s finding that Melo-Saganome was
not credible regarding this “major incident,” we need not address whether our circuit uses this “heart
of the claim” test to analyze adverse credibility findings.
8
Although Melo-Saganome does point to a few minor errors in the IJ’s oral opinion, these
errors are not significant enough to convince us that no reasonable factfinder could find as the IJ did.
17
documents at the beginning of her oral decision, but also referred to the fact that some
of the corroborating documents contradict each other.
VIII. CONCLUSION
Melo-Saganome has failed to convince us that the record compels a reversal
of the IJ’s and BIA’s denial of his asylum, withholding of removal, and CAT relief
claims. We, therefore, deny the petition for review.
PETITION DENIED.
18