Yolanda Franco v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 3, 2008
No. 07-12551 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A78-601-867
A78-601-868
YOLANDA FRANCO,
JUAN MARIA BERMUDEZ,
CESAR AUGUSTO BERMUDEZ,
JUAN FELIPE BERMUDEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 3, 2008)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Yolanda Franco, her husband, Juan Maria Bermudez, and their two sons,
Cesar Augusto Bermudez and Juan Felipe Bermudez (Petitioners), petition this
Court for review of the Board of Immigration Appeals’ (BIA’s) order adopting and
affirming the order of the Immigration Judge (IJ) denying their applications for
asylum and withholding of removal under the Immigration and Nationality Act,
and relief under the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT), 8 U.S.C. §§ 1158, 1231(b)(3), 8
C.F.R. § 208.16(c).1 In their petition for review, they contend the IJ erred in
making an adverse credibility determination and they have otherwise satisfied their
burden of proof with respect to their claims for relief. We deny the petition.
When the BIA issues a decision, we review only that decision, except to the
extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Aschroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Id. Here, the BIA expressly adopted the IJ’s
decision, and we review both the decision of the IJ and the BIA.
1
Petitioners did not appeal the IJ’s denial of their CAT claim to the BIA. Thus,
Petitioners failed to exhaust their administrative remedies with respect to the IJ’s denial of their
CAT claim, and we lack jurisdiction to consider the issue. See Alim v. Gonzales, 446 F.3d 1239,
1253 (11th Cir. 2006).
Additionally, in their brief, Petitioners do not challenge the IJ’s determination that Juan
Felipe’s asylum application was untimely. Thus, they have abandoned this issue on appeal. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
“The IJ’s factual determinations, including credibility determinations, are
reviewed under a substantial evidence standard, which provides that the IJ’s
decision can be reversed only if the evidence compels a reasonable fact finder to
find otherwise.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006)
(quotations omitted). “Under this highly deferential test, we affirm the IJ’s
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) (quotations and alteration omitted).
“An alien who arrives in or is present in the United States may apply for
asylum.” Id. (citing 8 U.S.C. § 1158(a)(1)). “To qualify for asylum, the alien must
be a ‘refugee.’” Id. (citing 8 U.S.C. § 1158(b)(1)). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, 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). 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 such future persecution. 8 C.F.R. § 208.13(a), (b).
3
“The asylum applicant must establish eligibility for asylum by offering
credible, direct, and specific evidence in the record.” Forgue, 401 F.3d at 1287(quotations omitted). “The testimony of an applicant, if found to be credible, is
alone sufficient to establish these factors. Conversely, an adverse credibility
determination alone may be sufficient to support the denial of an asylum
application.” Id. (citations omitted). However, “an adverse credibility
determination does not alleviate the IJ’s duty to consider other evidence produced
by an asylum application.” Id. “Further, the IJ must offer specific, cogent reasons
for an adverse credibility finding.” Id. “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.” Id. (quotations omitted).
“Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments.” Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). For example, in Chen,
we upheld an adverse credibility determination where the IJ cited “a number of
inconsistencies and discrepancies between Chen’s asylum application, his credible
fear interview, and his testimony at the removal hearing.” 463 F.3d at 1231-32.
In the instant case, the IJ, citing several inconsistencies in the record, found
Yolanda, Cesar, and Juan Felipe were not credible witnesses, and Petitioners failed
4
to present a credible claim for asylum. The IJ noted numerous inconsistencies,
including: (1) the date of Cesar’s alleged kidnapping, (2) the location of Cesar
when he was kidnapped, (3) how many people were with Cesar when he was
kidnapped, (4) the actions Petitioners took to alert the authorities of Cesar’s
kidnapping, (5) the timing of Yolanda taking Juan Felipe out of school, and
(6) Cesar’s and Juan Felipe’s location of hiding before they left Colombia for the
United States.
Additionally, the IJ found Yolanda’s credibility was undermined by the fact
she came to the United States on two occasions after the alleged kidnapping, but
never requested asylum or informed immigration officials she feared persecution in
Colombia. The IJ also noted Cesar testified Yolanda returned to Colombia twice
because she never had any intention of remaining in the United States, a fact which
undermines her subjective fear of persecution. Similarly, the IJ found the
credibility of Juan Maria was undermined because he never filed an asylum
application, and found the credibility of Juan Felipe undermined because he
inexcusably filed an untimely asylum application and failed to inform immigration
officials he feared persecution in Colombia. Further, the IJ noted Yolanda was not
familiar with the name of the lieutenant who wrote the letter in the record, and the
letter erroneously provided Petitioners left Colombia in 1998.
5
In sum, substantial evidence supports the IJ’s adverse credibility finding, as
a review of the record confirms there were numerous inconsistencies, and
Petitioners cannot meet their burden of establishing the IJ failed to provide
specific, cogent reasons for its ruling.2 Forgue, 401 F.3d at 1287. Because the
record supports the IJ’s adverse credibility determination, substantial evidence also
supports the IJ’s denial of Petitioners’ asylum applications, as they failed to offer
credible evidence in support of their claims. Furthermore, there is no allegation the
IJ failed to consider the documentary evidence submitted by Petitioners, as the
inconsistencies identified by the IJ were based on both the record, in particular, the
asylum applications and Yolanda’s narrative, and the testimony at the hearing. See
id.Because substantial evidence supports the IJ’s adverse credibility
determination and the denial of Petitioners’ applications for asylum we need not
consider the IJ’s alternative finding with respect to nexus and particular social
group. Further, because Petitioners failed to establish a claim for asylum on the
merits, they also necessarily failed to establish eligibility for withholding of
removal. See id. at 1288 n.4. Accordingly, we deny the petition.
PETITION DENIED.
2
The only inconsistency identified by the IJ not supported by the record was the finding
the record did not contain any evidence Cesar attended military school.
6