Ruth Patricia Sanchez-Castaneda v. U.S. Atty. Gen. ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13807 DEC 26, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency Nos. A79-714-723
A79-714-724
RUTH PATRICIA SANCHEZ-CASTANEDA,
JURGEN ORREGO-SANCHEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 26, 2006)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Ruth Patricia Sanchez-Castaneda, a native and citizen of Colombia, and her
minor son seek review of the final order of the Board of Immigration Appeals
(“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of asylum under the
Immigration and Nationality Act (“INA”).1 On appeal, Sanchez-Castaneda argues
that she demonstrated both past persecution and a well-founded fear of future
persecution by the National Liberation Army (“ELN”) based on her membership in
and work for Colombia’s Liberal Party. After careful review, we affirm.
When the BIA issues an affirmance without opinion, the IJ’s decision
becomes the final order subject to review. See Mendoza v. Att’y Gen., 327 F.3d
1283, 1284 n.1 (11th Cir. 2003). As the fact-finder, it is the IJ’s duty to determine
credibility, and we will not substitute our judgment for that of the IJ with respect to
credibility findings. See Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th
Cir. 1977) (citation omitted). The IJ’s factual determination that an alien is not
entitled to asylum must be upheld if it is supported by substantial evidence. See
Mazariegos v. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). Under this
highly deferential standard of review, a denial of asylum may be reversed only if
the evidence would compel a reasonable factfinder to find that the requisite fear of
persecution exists. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see
also 8 U.S.C. § 1252(b)(4)(B) (“administrative findings of fact are conclusive
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Because we find that Petitioner has not established a case for asylum under the INA, we
do not consider whether she satisfied the higher standard for withholding of removal or relief under
the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment
or Punishment. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001).
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unless any reasonable adjudicator would be compelled to conclude to the
contrary”).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is
unwilling to return to her home country or to avail himself of that country’s
protection “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A).
The asylum applicant carries the burden of proving statutory “refugee”
status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant
satisfies this burden by showing, with specific and credible evidence: (1) past
persecution on account of a statutorily listed factor, or (2) a “well-founded fear”
that her statutorily listed factor will cause future persecution. Al Najjar, 257 F.3d
at 1287; 8 C.F.R. § 208.13(a), (b). “To establish asylum based on past
persecution , the applicant must prove (1) that she was persecuted, and (2) that the
persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448
F.3d 1229, 1236 (11th Cir. 2006) (citations omitted). “To establish eligibility for
asylum based on a well-founded fear of future persecution, the applicant must
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prove (1) a ‘subjectively genuine and objectively reasonable’ fear of persecution,
that is (2) on account of a protected ground.” Id. (citations omitted). Assuming
the applicant is able to establish a well-founded fear of persecution, she must then
show that the persecution cannot be avoided by relocating in the subject country.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005); 8 C.F.R.
§ 208.13(b)(2)(ii).
It is well-settled that an adverse credibility determination alone may be
sufficient to support an IJ’s decision to deny an application for asylum, particularly
where there is no other evidence of persecution. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1287 (11th Cir. 2005); see also Yang v. U.S. Att’y Gen., 418 F.3d
1198, 1201 (11th Cir. 2005); D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819
(11th Cir. 2004); 8 C.F.R. § 208.13. Moreover, the weaker the applicant’s
testimony, the greater the need is for corroborating evidence. Yang, 418 F.3d at
1201. Like any other factual finding, a credibility determination may not be
overturned unless the record compels it. Forgue, 401 F.3d at 1287 (quotations and
citations omitted). “Once an adverse credibility finding is made, the burden is on
the asylum applicant to show that the IJ’s credibility decision was not supported by
‘specific, cogent reasons’ or was not based on substantial evidence.” Id. (citations
omitted).
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Here, substantial evidence supported the IJ’s decision that Sanchez-
Castaneda was not eligible for asylum. Her asylum claim was premised on alleged
persecution by the ELN because of her political involvement with a Liberal Party
councilman. At the hearing before the IJ, Sanchez-Castaneda testified that during
the year 2000, while she was working for the councilman, she received threatening
phone calls from ELN members, stating things such as “stop working for the
community or it will be very expensive for you.” However, when she arrived in
the United States without valid entry documentation, she stated that she came to
the United States because she had received threatening phone calls from an
unknown person. She further said that she thought the calls were from a man
named Wilson, to whom she had lent money and who she recently had contacted
regarding collecting the debt. Three days later, at her credible-fear interview, she
provided yet another reason for leaving Colombia -- that members of the
Revolutionary Armed Forces of Colombia (“FARC”) had threatened her family
because her brother and father were policemen. Then, when she filed her asylum
application, she stated that her reason for fleeing Colombia was ELN persecution,
as she claimed at the hearing before the IJ.
The IJ identified the inconsistent reasons given by Sanchez-Castaneda as
undermining her asylum claim, specifically noting that he had considered the
corroborating evidence and found it insufficient to rebut the adverse credibility
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finding. In short, Sanchez-Castaneda’s changing and inconsistent motivations
provides a specific, cogent reason to support the IJ’s adverse credibility. And the
finding is supported by the record. Because the IJ had specific, cogent reasons
supported by substantial evidence for his adverse credibility determination and
considered all of the evidence, we must deny Sanchez-Castaneda’s petition.
PETITION DENIED.
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