Flor Maria Meneses-Alvarez v. U.S. Atty. General ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16239 AUG 15, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency Nos. A79-466-098
A79-466-099
FLOR MARIA MENESES-ALVAREZ,
FELIPE GONZALEZ-MENESES,
LUIS ARTURO GONZALEZ-PRADO,
a.k.a. Jorge Reyes Lora,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 15, 2006)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Flor Maria Meneses-Alvarez, Luis Gonzalez-Prado, and their son, Felipe
Gonzalez Meneses, seek review of the Board of Immigration Appeal’s decision
affirming the Immigration Judge’s order finding them removable and denying their
application for asylum and withholding of removal under the Immigration and
Nationality Act, and relief under the United Nations Convention Against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). See 8
U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c).
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA issued its own decision, so we
review that.
We review a legal challenge to the BIA’s decision de novo. Mohammed v.
Ashcroft, 261 F.3d 1244, 1247–48 (11th Cir. 2001). We review the BIA’s factual
determinations under the substantial evidence test and affirm its decision “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.
2005) (quotation marks and citation omitted). The substantial evidence test is
“deferential” and does not allow “re-weigh[ing] the evidence from scratch.”
Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (quotation
marks omitted). “To reverse the [BIA’s] fact findings, we must find that the record
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not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003).
“Credibility determinations likewise are reviewed under the substantial
evidence test.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir.
2004). “A credibility determination, like any fact finding, may not be overturned
unless the record compels it.” Forgue, 401 F.3d at 1287 (quotation marks and
citations omitted). Adverse credibility determinations must be made explicitly.
See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “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 (citations
omitted). “[A]n adverse credibility determination alone may be sufficient to
support the denial of an asylum application” when there is no other evidence of
persecution. Id. However, an adverse credibility determination does not dispel the
IJ’s duty to consider other evidence produced by the asylum applicant. Id. “The
weaker an applicant’s testimony, . . . the greater the need for corroborative
evidence.” Yang, 418 F.3d at 1201.
Here, the IJ expressly made an adverse credibility determination, and the
BIA affirmed it. The IJ found that the petitioners offered inconsistent testimony
regarding the date of an alleged incident in which the FARC threatened Meneses-
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Alvarez after a political meeting. The BIA agreed with the IJ that this was a
significant inconsistency and that it created doubt about whether the incident
actually occurred, especially since there was no police report. During the
encounter, the FARC allegedly demanded that Meneses-Alvarez stop her political
activities or her son would be kidnapped. The record supports the finding that the
incident was the first and primary encounter that Meneses-Alvarez had with the
FARC and that she and her husband provided inconsistent testimony regarding the
date when it occurred.
The petitioners also argue that the BIA erred in finding that they were not
persecuted on account of Meneses-Alvarez’s political opinion and that, as a result,
they were not eligible for asylum. An alien who arrives in or is present in the
United States may apply for asylum. 8 U.S.C. § 1158(a)(1). Asylum may be
granted if the alien meets the INA’s definition of a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). A “refugee” is:
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country 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. Al Najjar, 257 F.3d at 1284.
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To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that the statutorily listed factor will cause future
persecution. 8 C.F.R. § 208.13(a), (b); see Al Najjar, 257 F.3d at 1287. The
applicant is required “to present specific, detailed facts showing a good reason to
fear that he or she will be singled out for persecution on account of [a statutory
factor].” Id. at 1287 (quotation marks and citation omitted).
“[P]ersecution on account of . . . political opinion . . . is persecution on
account of the victim’s political opinion, not the persecutor’s.” INS v. Elias-
Zacarias, 502 U.S. 478, 482, 112 S. Ct. 812, 816 (1992) (quotation marks omitted).
It is not enough for an asylum applicant to show that he has a political opinion; he
must show that he was persecuted because of that opinion. Id. at 483, 112 S. Ct. at
816. “It is not enough to show that [the applicant] was or will be persecuted or
tortured due to [his] refusal to cooperate with the guerillas.” Sanchez v. U.S. Att’y
Gen., 392 F.3d 434, 438 (11th Cir. 2004).
In this case, substantial evidence supports the BIA’s and IJ’s finding that the
petitioners failed to establish a nexus between the harm suffered and Meneses-
Alvarez’s political opinion. Gonzalez-Prado’s testimony from his credible fear
interview suggests that the petitioners were targeted because they would not
comply with the FARC’s extortionate demands, rather than as a result of a political
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opinion. The documentary evidence in the record does not compel the conclusion
that they were targeted because of Meneses-Alvarez’s membership in and activities
in support of the Liberal Leftist Party because the police reports Gonzalez-Prado
filed indicated that the motive for the threats was extortion. Other than her initial
encounter with FARC, the incidents about which Meneses-Alvarez testified
appeared to have been motivated by the FARC’s need for resources (including
food and radios), extortion, and the desire to recruit her son, rather than being
based on her political connections and activities. Also, the 2001 U.S. Department
of State Country Report on Human Rights Practices for Colombia stated that
guerrillas often targeted those who refused to submit to recruitment or extortion.
Thus, the evidence in the record supports the conclusion that the harm the
petitioners suffered was motivated by the guerrillas’ desire for financial gain or by
the petitioners’ failure to cooperate with them, not because of an actual or imputed
political opinion. Although the evidence may permit a conclusion that the
guerrillas were partially motivated by the petitioners’ political opinion, it does not
compel such a conclusion. Therefore, BIA did not err in finding the petitioners
ineligible for asylum. See Mendoza, 327 F.3d at 1287.
A petitioner who cannot demonstrate asylum eligibility is likewise ineligible
for withholding of removal. Al-Najjar, 257 F.3d at 1292–93. Therefore, because
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petitioners’ asylum claim fails, their claim for withholding of removal also fails.
See id.
Finally, the petitioners contend that they were denied due process because
their Spanish language interpreter was not sworn in. They argue the BIA erred in
finding that they had the burden of showing they were harmed by that procedural
error.
“We review constitutional challenges de novo.” Lonyem v. U.S. Att’y
Gen., 352 F.3d 1338, 1341 (11th Cir. 2003). Aliens present in the United States
are entitled to due process under the Fifth Amendment of the Constitution.
Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1311 (11th Cir. 2001). “In
order to establish a due process violation, an alien must show that he or she was
deprived of liberty without due process of law, and that the asserted error caused
him substantial prejudice.” Garcia v. U.S. Att’y Gen., 329 F.3d 1217, 1222 (11th
Cir. 2003) (citations omitted). The BIA correctly placed the burden on the
petitioners to show that they were prejudiced by the IJ’s failure to swear in the
interpreter. The petitioners have not shown that they suffered substantial prejudice
because they do not point to any error by the interpreter. Accordingly, the
petitioners have failed to establish that their asylum hearing violated their right to
due process under Garcia, 329 F.3d at 1222.
Because we find no reversible error, we deny the petition for review.
PETITION DENIED.
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