Domingo Iadonisi v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14095 ELEVENTH CIRCUIT
JUNE 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A098-604-827,
A098-701-350
DOMINGO IADONISI,
ANTONETTA PICA,
GESSICA IADONISI,
CRISTIN IADONISI,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 30, 2010)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Domingo Iadonisi (“petitioner”) is a native and citizen of Venezuela. He
petitions this court for review of the Board of Immigration Appeals’s (“BIA”)
final order affirming the Immigration Judge’s (“IJ”) denial of his applications for
withholding of removal and relief under the United Nations Convention Against
Torture (“CAT”).1
In his decision, the IJ identified the standard for withholding of removal as a
clear probability of persecution on a protected ground, noting that withholding had
a “much more stringent” standard than asylum. The IJ did not pass on petitioner’s
credibility. The BIA stated that even if it deemed petitioner credible, he had “failed
to sustain the high burden of proof applicable to withholding of removal.” It found
that (1) the record did not establish that the alleged persecution occurred on
account of a protected ground, (2) it was not likely that petitioner would be subject
to persecution upon return to Venezuela because the alleged events occurred nearly
ten years ago, and (3) it was reasonable for him to relocate because the harm was
not government sponsored.
I.
1
Petitioner also applied for asylum for himself and Cristian Iadonisi, Gessica Iadonisi,
and Antonetta Pica, derivative applicants. At the removal hearing, petitioner’s attorney
withdrew the application for asylum as untimely. The derivative applicants are not entitled to
apply for withholding of removal, Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861-62 (11th Cir.
2007), or CAT relief, Warui v. Holder, 577 F.3d 55, 59 (1st Cir. 2009), the dual forms of relief
petitioner seeks here. This petition for review is therefore denied as to them.
2
Petitioner asserts that 8 U.S.C. § 1231 requires the trier of fact to make a
credibility determination, and that the BIA and IJ erred when they failed to
determine his credibility. Without making a credibility finding, he argues, it was
impossible for the IJ to determine if he had met his burden of proof because the IJ
could not weigh his credible testimony against other evidence in the record.
Petitioner also argues that the IJ and BIA violated his due process rights by not
reaching a determination as to his credibility, and that he was prejudiced because
had he been found credible, which he was, the outcome of his case would have
been different.
We review our subject matter jurisdiction de novo and lack jurisdiction to
consider claims not raised before the BIA. Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250-51 (11th Cir. 2006). According to statute, the trier of fact in
withholding of removal proceedings “shall make credibility determinations.” 8
U.S.C. § 1231(b)(3)(C). “[However], if no adverse credibility determination is
explicitly made, the applicant. . . shall have a rebuttable presumption of credibility
on appeal.” 8 U.S.C. § 1158(b)(1)(B)(iii). If the agency does not find the alien’s
testimony incredible, we take the testimony as true. Mejia v. U.S. Att’y Gen., 498
F.3d 1253, 1254 n.2 (11th Cir. 2007).
We may lack jurisdiction to review petitioner’s argument that the IJ needed
to make an explicit credibility determination because it appears that he did not
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present the argument to the BIA. Regardless, no error occurred because the statute
permits the IJ to avoid making an explicit credibility determination, and while the
BIA did not make an explicit credibility determination, it still deemed him
credible. Furthermore, any error would be harmless because, in the absence of an
adverse credibility finding, we accept his testimony as true.
II.
Petitioner argues that the BIA erred by requiring that he demonstrate
eligibility for withholding of removal based on a “very high burden” instead of the
clear probability of persecution standard, which requires a greater than 50% chance
of persecution. Moreover, in the absence of a credibility determination, he
contends that he had a rebuttable presumption of credibility on appeal. Therefore,
we must accept as true his testimony regarding: (1) his January 1999 beating by
Chavez militants; (2) his February 1999 attempted shooting by followers of
Chavez’s group and the subsequent threatening phone call; (3) the October 1999
attempt by Chavez supporters to run his car off the road; and (4) the March 2000
phone call by Chavez followers threatening him with death after he was named
Sectional Secretary of the Democratic Action Party for the State of Miranda.
Accepting his testimony as true, petitioner asserts, he established by clear
and credible evidence that his life and freedom were in danger on account of his
political opinion since the attacks and threats occurred due to his membership in
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the Democratic Action Party. Therefore, he should have received withholding of
removal. Petitioner also argues that even if he did not qualify for withholding of
removal, he would qualify for CAT relief, since his testimony established that he
sustained injuries and threats of future harm sufficient to show that he would be
tortured by the government of Venezuela upon return.
We review only the BIA’s decision except to the extent the BIA expressly
adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). We review the BIA’s decision here with the exception of the
findings and conclusions it expressly adopted from the IJ’s decision.
We review questions of law de novo. Kazemzadeh v. U.S. Att’y Gen., 577
F.3d 1341, 1350-51 (11th Cir. 2009). Factual findings are reviewed under the
substantial evidence test. Al Najjar, 257 F.3d at 1283. Under the substantial
evidence test, we must affirm the BIA’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole. ” Id. at
1284. “To reverse a factual finding by the BIA, we must find not only that the
evidence supports a contrary conclusion, but that it compels one.” Farquharson v.
U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). The fact that evidence in
the record may support a conclusion contrary to the administrative findings is not
enough to justify a reversal. A defemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc).
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To establish eligibility for CAT relief, the alien must show that it is “more
likely than not” he would face torture if returned to his country. Al Najjar, 257
F.3d at 1303. Furthermore, when determining if the alien would be tortured upon
return, one factor considered is whether the alien could relocate to a part of the
country where he is not likely to be tortured. Id. at § 208.16(c)(3)(ii). The alien
also must show that any torture would be done with the acquiescence of the
government. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir.
2007). “Relief under the Convention is in the form of the mandatory remedy of
withholding of removal.” Al Najjar, 257 F.3d at 1303; see 8 C.F.R. § 208.16(c).
To establish eligibility for withholding of removal, an alien carries a burden
of proof that is higher than that for establishing eligibility for asylum. Al Najjar,
257 F.3d at 1303. The alien must, with specific and credible evidence, establish
that his “life or freedom would be threatened” on account of a protected ground,
including political opinion. 8 C.F.R. § 208.16(b)(2)(i). If the alien demonstrates
past persecution, there is a rebuttable presumption that he has a well-founded fear
of future persecution. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.
2006).
If the presumption of future persecution arises, it may be rebutted in one of
two ways. Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1264 (11th Cir. 2004). The
burden is on the government to show, by a preponderance of the evidence, either
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that (1) the circumstances in the home country fundamentally have changed to the
extent that the alien need no longer fear persecution, or (2) the alien could avoid
future persecution by relocating within the home country, and it would be
reasonable for the alien to do so. Id.; 8 C.F.R. § 208.16(b)(1)(i).
As an initial matter, while petitioner asserts that the IJ and BIA used the
wrong standard in considering his application for withholding of removal, they
cited to the appropriate standard and correctly identified that withholding of
removal has a higher burden of proof than asylum. Even if petitioner had
established past persecution on account of his political opinion, he has not
challenged in his brief the BIA’s determination that he could relocate within
Venezuela. Therefore, he has abandoned that issue and cannot show that his life or
freedom would be threatened upon return to Venezuela or that he would be
tortured upon his return. Thus, the BIA did not err by affirming the denial of his
claims for withholding of removal and CAT relief.
PETITION DENIED.
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