Jaime Soto Caro 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[DO NOT PUBLISH]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
January 17, 2006
No. 05-13467
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-096-397
JAIME SOTO CARO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 17, 2006)
Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
Jaime Soto Caro, a native and citizen of Colombia, through counsel,
petitions us for review of the Board of Immigration Appeals’ (“BIA’s”) decision
affirming the Immigration Judge’s (“IJ’s”) order finding him removable and
denying his application for asylum and withholding of removal under sections 208
and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and
1231(b)(3). Soto Caro claimed that he was persecuted by the Revolutionary
Armed Forces of Colombia (“FARC”), a Colombian guerrilla group, because of his
involvement with Liberal Party politics in Colombia. The BIA found that Soto
Caro was not credible because he: (1) lived in the United States, and was not
directly involved in Colombian politics, for most of the three years preceding the
time when he claimed the FARC began to threaten him; (2) testified that he was
kidnaped by the FARC and that he told his wife about it, although she did not
report the kidnaping in the judicial denouncement she submitted to the Colombian
police regarding the FARC’s threats against their family; and (3) admitted that his
home was vacant for nearly an entire year before FARC graffiti appeared on the
building, although he alleged that the graffiti was a threat against him.
On appeal, Soto Caro argues that the BIA’s adverse credibility determination
was erroneous because Soto Caro presented testimony that was both internally
consistent and consistent with his written application, without embellishment.
Soto Caro contends that the adverse credibility finding did not go to the heart of his
asylum claim, and that his testimony and the record establish that he suffered past
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persecution and that it is more likely than not that he will be persecuted upon his
return to Colombia.
Our review focuses strictly on the BIA’s decision, “except to the extent that
it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (internal citations omitted). “Insofar as the [BIA] adopts the IJ’s
reasoning, we will review the IJ’s decision as well.” Id. (internal citations
omitted). Here, we review the BIA’s decision, as well as the IJ’s, since a portion
of the IJ’s reasoning was incorporated into the BIA’s conclusions.
The BIA’s “findings of fact are reviewed under the substantial evidence
test,” and we must affirm the BIA’s decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.”
Antipova v. United States Attorney General, 392 F.3d 1259, 1261 (11th Cir. 2004)
(quotation omitted). Likewise, we review credibility determinations under the
substantial evidence test. Forgue v. United States Attorney General, 401 F.3d
1282, 1286 (11th Cir. 2005). Substantial evidence is lacking only in those cases
where the petitioner can carry the burden of establishing that the evidence of
record was “so compelling that no reasonable fact finder could [have] fail[ed] to
find” the petitioner qualified for asylum and withholding of removal. I.N.S. v.
Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 817 (1992).
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“The trier of fact must determine credibility, and [we] may not substitute
[our] judgment for that of the IJ with respect to credibility findings.” D-Muhumed
v. United States Attorney General, 388 F.3d 814, 818 (11th Cir. 2004). Adverse
credibility determinations must be made explicitly. See Yang v. United States
Attorney General, 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).
As an initial matter, Soto Caro cites several new pieces of evidence,
describing conditions in Colombia, for the first time on appeal. We may not
consider evidence outside the administrative record. INA § 242(b)(4)(A), 8 U.S.C.
§ 1252(b)(4)(A). Therefore, we do not consider Soto Caro’s new evidence.
Soto Caro argues on appeal that he presented evidence of political activity,
and resulting threats against him by the FARC, that was sufficient to demonstrate
past persecution on account of his political opinions and a well-founded fear that
his political opinions would cause future persecution if he returned to Colombia.
An alien may obtain asylum if he is a refugee within the meaning of INA
§ 101(a)(42)(A). INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A “refugee”
includes any person who is unwilling to return to, and is unable or unwilling to
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avail himself of the protection of, the country of his nationality or where he last
habitually resided, 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. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). An alien is
entitled to asylum if he can establish, with specific and credible evidence: (1) past
persecution on account of political opinions or other statutorily listed factor; or (2)
a “well-founded fear” that his political opinions or other statutorily listed factor
will cause future persecution. 8 C.F.R. §§ 208.13(a), (b); Al Najjar, 257 F.3d at
1287. Neither the INA nor the regulations define “persecution.”
We have indicated that “persecution is an extreme concept, requiring more
than a few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Sepulveda v. U.S. Attorney General,
401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted). If an alien is unable to
meet the “well-founded fear” standard for asylum, “he is generally precluded from
qualifying for either asylum or withholding of removal.” Al Najjar, 257 F.3d at
1292-93 (citation omitted).
Soto Caro’s oral testimony and written evidence were inconsistent regarding
his claim that he was persecuted because of his political activities in Colombia.
Given the IJ’s calculation that Soto Caro spent the majority of the time during
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which he claimed to be persecuted in Colombia actually residing in the United
States, the alleged persecution seems unlikely. The lack of corroborating evidence,
either in the form of a police report or other testimony, supporting Soto Caro’s
alleged kidnaping and the supposed threats in graffiti made at his home, also belies
his claim of persecution. Substantial evidence supports the BIA’s factual
determinations and the finding that Soto Caro was not credible.
In light of the BIA’s adverse credibility findings regarding much of Soto
Caro’s testimony, the remaining evidence does not compel a finding that Soto Caro
was threatened by the FARC, as a result of his political activity, at a level that
would qualify as past persecution or establish a well-founded fear of future
persecution. Because Soto Caro has failed to establish a claim of asylum on the
merits, he necessarily fails to establish eligibility for withholding of removal.1
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. Accordingly, Soto Caro’s petition is denied.
PETITION DENIED.
1
An alien shall not be removed to a country if his life or freedom would be threatened in
such country on account of race, religion, nationality, membership in a particular social group, or
political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). If an alien is unable to meet the
“well-founded fear” standard for asylum, “he is generally precluded from qualifying for either
asylum or withholding of [removal].” Al Najjar, 257 F.3d at 1292-93 (citation omitted).
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