NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 5, 2010*
Decided December 20, 2010
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐2008
VICTOR RODRIGUEZ HERNANDEZ, Petition for Review of an Order of the
Petitioner. Board of Immigration Appeals.
v. No. A096‐134‐957
ERIC H. HOLDER, JR., Attorney General of
the United States,
Respondent.
O R D E R
Victor Rodriguez Hernandez, a native and citizen of Guatemala, petitions for review of
the denial of his application for asylum, withholding of removal, and relief under the
Convention Against Torture based on persecution he claims to have suffered because of his
Aguatecan ethnicity and his political activities. We deny the petition.
*
The parties have waived oral argument in this case, and thus the appeal is submitted
on the briefs and record. See FED. R. APP. P. 34(a)(2)(C).
No. 10‐2008 Page 2
Rodriguez, who was born in the town of Aguacatán, is Aguacatecan, an indigenous
ethnicity of Mayan origins. He testified that he joined the Guatemalan military in 1996, at the
age of 19, to obtain a better education. In his application for asylum, Rodriguez asserted that
his superiors persecuted him because of his ethnicity. He claims that the approximately 20
indigenous soldiers in his unit were subjected to additional training beyond that which the rest
of the soldiers received. According to Rodriguez, his superiors subjected indigenous recruits
to beatings and further humiliated them by ordering them to roll on grounds strewn with ants
or feces. In his application Rodriguez says that, for instance, he was forced to crawl inside “a
hole full of manure which included blood, worms, oil, and . . . decomposing animals.”
Three years later in 1999, Rodriguez resigned from the military to avoid further
mistreatment and returned to Aguacatán, where he organized opposition to Mayor Pablo
Escobar Mendez. Rodriguez believed that Escobar was corrupt and misused government
funds. He also believed that the mayor was supported by the military and that together they
worked to cover up various human rights violations. Around 2000, Rodriguez formed a group
called the Peaceful Social Movement to oppose the mayor. He testified that PSM sought
Escobar’s resignation through peaceful demonstrations attracting up to 10,000 people.
Rodriguez testified that he fled Guatemala in 2001 after a soldier warned him that the
military would kill him if he did not leave. He also testified that he continued to provide
leadership to PSM by phone even after he left Guatemala. In 2004, he said, PSM was able to
corroborate the mayor’s misuse of government funds through an audit, and a member of PSM
was eventually elected mayor of Aguacatán. Rodriguez maintains that his life remains
endangered in Guatemala, as reflected by the murders of PSM members since his escape, and
anonymous notes left at his father’s house in Aguacatán threatening him with death. Even
though Escobar no longer is mayor, Rodriguez says that he remains politically powerful and
continues to have the military’s support.
In 2002, Rodriguez applied for asylum, withholding of removal and relief under the
Convention Against Torture. In his application, Rodriguez claimed only past persecution
based on the beatings and the mistreatment he received as an ethnic minority in the military;
he sought no relief based on political opinion.
Rodriguez’s application was referred for a hearing to the immigration court, where the
Immigration Judge (“IJ”) rejected his claim for asylum. The IJ found that Rodriguez failed to
establish past persecution or a well‐founded fear of future persecution based on his treatment
while in the military. The IJ determined that this treatment was consistent with rigorous
military training around the world and that there was insufficient evidence to support a finding
that Rodriguez was being persecuted based on his ethnicity. With regard to Rodriguez’s
No. 10‐2008 Page 3
involvement in PSM, the IJ found that he was not credible because he did not include this claim
in his initial asylum application and raised it only at his hearing. The IJ also discounted
Rodriguez’s testimony as uncorroborated and inconsistent with the documents he submitted.
Finding that he failed to meet the burden of proof for his asylum claim, the IJ determined that
he could not meet the higher burden required for withholding of removal or relief under the
Convention Against Torture. The Board of Immigration Appeals supplemented and affirmed
the IJ’s decision.
On appeal, Rodriguez argues that the IJ and the BIA erred in finding that the abuse he
experienced while in the military did not constitute persecution. Rodriguez maintains that
ethnic minorities in his unit were subjected to substantially more training than other soldiers.
He testified that, unlike non‐indigenous soldiers, he was beaten and forced to endure
humiliating treatment, such as crawling through ants, feces, oil, and decomposing animal
carcasses. Rodriguez contends that his testimony about the treatment he received while in the
military – testimony that the IJ credited – is sufficient to prove past persecution based on his
ethnicity.
There is insufficient evidence in the record, however, to overturn the IJ’s determination
that Rodriguez did not suffer past persecution. Rodriguez is correct that persecution can exist
even in cases where there is no serious injury. See Borovsky v. Holder,
612 F.3d 917, 921 (7th Cir.
2010). But the question in this appeal is whether the record compels a finding of past
persecution, not whether the record could support such a finding. Nzeve v. Holder,
582 F.3d 678,
684 (7th Cir. 2009). The IJ could credit Rodriguez’s testimony and still determine that his
treatment in the military did not rise to the level of persecution. See, e.g., Prela v. Ashcroft,
394
F.3d 515, 518 (7th Cir. 2005) (explaining that multiple detentions and beatings did not compel
a finding of past persecution); Dandan v. Ashcroft,
339 F.3d 567, 573‐74 (7th Cir. 2003) (noting
that the record did not compel conclusion that a three‐day detention and beating was
persecution).
Rodriguez next contends that the IJ improperly found his testimony about his
involvement in PSM not credible based on inconsistencies between his testimony and the
documentary evidence he submitted. Rodriguez’s petition vaguely challenges only one of these
identified inconsistencies – the inconsistency over the timing of Mayor Escobar’s tenure.
Rodriguez testified that Escobar had been mayor since 2000, while an Associated Press article
he submitted traced Escobar’s mayoral regime to 1992. Rodriguez blames this inconsistency
on the article’s inaccuracy.
The IJ’s adverse credibility determination is adequately supported by the record.
Credibility determinations are questions of fact that we will overturn only in extraordinary
No. 10‐2008 Page 4
circumstances, see Rama v. Holder,
607 F.3d 461, 465 (7th Cir. 2010), and Rodriguez has not met
his burden of explaining the discrepancies between his testimony and his application, see Aung
v. Gonzales,
495 F.3d 742, 747 (7th Cir. 2007). Even if we accept his vague argument on appeal
that his testimony about Mayor Escobar’s tenure is not necessarily inconsistent with the
documents he submitted, the IJ identified many other inconsistencies in Rodriguez’s story. For
example, the IJ also based the adverse credibility determination on Rodriguez’s omission in his
asylum application of any mention of his role in PSM, inconsistent information about the
outbreak of protests against the mayor, and the absence of any mention of Rodriguez in the
articles he submitted about PSM. Rodriguez has not accounted for these inconsistencies, and
unexplained inconsistencies are a sufficient basis for an IJ to find an applicant not credible. See
Toure v. Holder,
624 F.3d 422, 429 (7th Cir. 2010); Hassan v. Holder,
571 F.3d 631, 637 (7th Cir.
2009).
Rodriguez’s final argument is that the IJ violated his right to due process by giving
insufficient weight to affidavits he submitted from family members and PSM colleagues in
Guatemala. Rodriguez submitted several letters from his father and other PSM members to
corroborate his claim that he founded PSM and that he was targeted for threats based on his
political activities. These letters also stated that Rodriguez continued to give direction to PSM
even after he left Guatemala, and that members of the military had killed PSM members and
were searching for him.
Rodriguez’s due process claim fails because he has not shown that the IJ disregarded
these affidavits. Although the complete exclusion of probative evidence can constitute a due
process violation, see Tadesse v. Gonzales,
492 F.3d 905, 908‐09 (7th Cir. 2007), the IJ in this case
did not exclude the affidavits. The IJ stated that she considered the affidavits but did not find
them persuasive enough to overcome the inconsistencies she identified in Rodriguez’s claim.
The IJ’s decision to place less weight on certain evidence does not alone violate due process.
See Chavez‐Vasquez v. Mukasey,
548 F.3d 1115, 1119 (7th Cir. 2008). The IJ was entitled to weigh
all the evidence in the case and was not required to give controlling weight to affidavits she
found inconsistent with other information in the application. See Feto v. Gonzales,
433 F.3d 907,
911 (7th Cir. 2006); Capric v. Ashcroft,
355 F.3d 1075, 1086 (7th Cir. 2004).
Accordingly, we DENY the petition for review.
