Jorge Enrique Zabala 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[DO NOT PUBLISH]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
ELEVENTH CIRCUIT
No. 05-12603 December 27, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA Nos.
A95-545-033
A95-545-034
JORGE ENRIQUE ZABALA,
JASMINE BORREI GOMEZ
SANTIAGO ZABALA BORREI
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(December 27, 2005)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Jorge Enrique Zabala, his wife, Jasmine Borrei Gomez, and their minor son,
Santiago Zabala Borrei, are natives and citizens of Colombia, who arrived in the
United States as non-immigrant visitors in 1999 and stayed longer than permitted.
On May 8, 2002, Zabala filed an application for asylum and withholding of
removal with the Immigration and Naturalization Service on behalf of himself, his
wife, and their son. In June of 2002, the INS issued each member of the family a
Notice to Appear, charging them with removability because they had remained in
this country longer than permitted. Zabala admitted the factual allegations in the
Notices to Appear, conceded removability, and requested asylum and withholding
of removal under both the Immigration and Nationality Act (“INA”) and the
Convention Against Torture (“CAT”).
In October of 2003, the Immigration Judge issued a decision, finding that
Zabala was not eligible for asylum because he had not filed his application on time
and because extraordinary circumstances did not exist for the late filing. The IJ
also rejected his claims of withholding of removal under the INA and CAT,
specifically stating that Zabala’s testimony was “not credible” and finding that
there were questions regarding the origins of certain documents he filed. The IJ
made explicit adverse credibility findings regarding Zabala’s testimony about: (1)
the extent of his involvement with the organization Seriousness for Colombia and
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the Liberal Party; (2) an attack in August of 1999; (3) a letter his parents received
from the Revolutionary Armed Forces of Colombia (“FARC”); and (4) threatening
phone calls his parents received from FARC.
In April of 2005, the Board of Immigration Appeals adopted and affirmed
the IJ’s decision to the extent that it denied his claim for asylum based upon the
time bar. It also adopted and affirmed the IJ’s decision denying withholding of
removal under the INA and CAT. The BIA stated that “the respondent has failed
to carry [his] burden of proof by providing credible testimony and evidence to
establish that it would be more likely than not that they would be persecuted on
account of a protected ground . . . or tortured upon return to Colombia.”
Regarding the documentary evidence submitted with the appeal, the BIA found
that it could not consider this evidence because its review was limited to the
record before the IJ. Finally, it denied Zabala’s motion for remand because the
evidence he relied on to justify it was available at the time of the hearing before
the IJ.
Zabala seeks review of the BIA’s decision on three grounds.1 First, he
contends that he was entitled to apply for asylum more than one year after he
1
Zabala made no arguments concerning CAT relief on appeal. When a party “elaborates no
arguments on the merits as to [an] issue in its initial or reply brief . . . the issue is deemed waived.”
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
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arrived in the United States because there were changed circumstances that
materially affected his eligibility. He argues that after he left Colombia, FARC
continued to make threatening calls concerning him to his parents in Colombia,
eventually requiring them to move and change their phone number.
We review only the BIA’s decision, except to the extent that it expressly
adopts the IJ’s opinion. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
If as here, the BIA adopts the IJ’s opinion, then that decision is reviewed as well.
See id. To the extent that the BIA’s decision was based on a legal determination,
this Court’s review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814F.3d 814, 817 (11th Cir. 2004). The IJ’s and BIA’s findings of fact are reviewed
under the substantial evidence test, and we affirm the decision below if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole. Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1261 (11th
Cir. 2004). Under this highly deferential standard of review, a denial of relief may
be reversed only if the evidence would compel a reasonable factfinder to conclude
that the requisite fear of persecution exists. See id.An alien is not entitled to asylum unless he demonstrates by clear and
convincing evidence that the application has been filed within one year after the
date of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B); INA §
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208(a)(2)(B). An untimely asylum application may be considered if the alien can
demonstrate extraordinary circumstances relating to the delay in filing an
application within the one-year period. See § 1158(a)(2)(D). In Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283 (11th Cir. 2003), we stated that “section 1158(a)(3)
divests our Court of jurisdiction to review a decision regarding whether an alien
complied with the one-year time limit or established extraordinary circumstances
that would excuse his untimely filing.” Id. at 1287. This rule was not altered by
the expansion of jurisdiction in the REAL ID Act. See Chacon-Botero v. U.S.
Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005). Because Zabala did not file an
application for asylum until after he had been in the United States for more than a
year and because we do not have jurisdiction to review a decision regarding
whether an alien complied with the one-year time limit, we dismiss his petition as
it relates to the application for asylum.
Next, Zabala contends that the BIA erred in finding that he was not credible
when he provided consistent and substantial evidence to support his application
for withholding of removal.2 He asserts that the IJ failed to support her conclusion
with specific factual findings of inconsistencies or embellishments. He alleges
2
Zabala also contends that the BIA erred in finding that he was not credible as to his application
for asylum. However, because we do not have jurisdiction to review his petition as it relates to the
asylum application, we need not consider this argument.
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that the only discrepancy identified by the IJ, the facts surrounding a letter sent
from FARC to his parents, was a minor discrepancy.
We review credibility determinations under the substantial evidence test.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). 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. Id. The
trier of fact must determine credibility, and this Court may not substitute its
judgment for that of the IJ with respect to credibility findings. See D-Muhumed,
388 F.3d at 818. Adverse credibility determinations must be made explicitly. See
Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). An adverse
credibility determination alone may be sufficient to support the denial of an
asylum application when there is no other evidence of persecution. Forgue, 401
F.3d at 1287. 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.Because the only non-testimonial evidence Zabala presents concerning his
political activities specifically refers only to his participation in one election or
electoral debate, and does not indicate any further involvement with Seriousness
for Colombia or the Liberal Party, Zabala cannot show that the IJ’s adverse
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credibility determination as to his political activity was not supported by
substantial evidence. Although there is potentially some evidence that Zabala’s
testimony was credible, he has not met his burden of demonstrating that the IJ’s
decision was not based on substantial evidence or specific, cogent reasons. The IJ
gave specific, cogent reasons for some of the credibility determinations, and there
are a substantial number of contradictory statements in Zabala’s testimony, which
Zabala has failed to either rebut or explain. See Nreka v. U.S. Att’y Gen., 408
F.3d 1361, 1369 (11th Cir. 2005). Accordingly, we deny the petition as to the
adverse credibility determination.
Finally, Zabala contends that because it is more likely than not that he will
be persecuted if he returns to Colombia, the BIA erred in denying withholding of
removal under the INA. He argues that he would likely be persecuted because he
was specifically targeted by FARC in the past and because FARC continues to
threaten both him and his parents.
To qualify for withholding of removal under the INA, an alien must show
that it is more likely than not that, if returned to his country, he would be
persecuted or tortured on account of race, religion, nationality, membership in a
particular social group, or political opinion. See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1232 (11th Cir. 2005). An alien may satisfy this burden of proof
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by showing either past persecution or the likelihood of future persecution. 8
C.F.R. § 208.16(b).
Because we do not engage in a de novo review of factual findings by the IJ
and because there is reasonable, substantial, and probative evidence supporting the
IJ’s decision, Zabala did not show that the IJ erred in finding that it was not “more
likely than not” that he would be persecuted on a statutorily protected ground if he
returned to Colombia. The letter Zabala submitted from Seriousness for Colombia
cites only one specific political event in which Zabala participated. Additionally,
Zabala failed to present evidence rebutting the IJ’s explicit concerns about the
credibility of key elements of his testimony. See Nreka, 408 F.3d at 1369.
Accordingly, we deny the petition as it relates to withholding of removal under the
INA.
DISMISSED IN PART AND DENIED IN PART.
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