Luis Medina v. U.S. Atty. General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 27, 2006
No. 05-16210 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-190-480
LUIS MEDINA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 27, 2006)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Luis Medina petitions for review of the final order of the Board of
Immigration Appeals (BIA) affirming without opinion the Immigration Judge’s
(IJ’s) decision denying his application for asylum and withholding of removal
under the Immigration and Nationality Act (INA), and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment (CAT), 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c).
Medina asserts the IJ’s adverse credibility finding is not supported by substantial
evidence because the IJ did not specify any internal discrepancies in Medina’s
testimony and only referenced alleged discrepancies between his testimony and
asylum application. We deny his 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. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, because the BIA expressly adopted the IJ’s
decision, we review the IJ’s decision. The IJ’s factual determinations are reviewed
under the substantial evidence test, and 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 citations omitted) (alteration in original). “Credibility
determinations likewise are reviewed under the substantial evidence test.”
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). “A credibility
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determination, like any fact finding, may not be overturned unless the record
compels it.” Forgue, 401 F.3d at 1287 (quotations and citations omitted).
Adverse credibility determinations must be made explicitly. Yang v. U.S.
Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “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.” D-Muhumed, 388 F.3d at 818. “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). “[A]n adverse credibility determination alone may be sufficient to
support the denial of an asylum application” when there is no other evidence of
persecution. Id. However, an adverse credibility determination does not alleviate
the IJ’s duty to consider other evidence produced by the asylum applicant, and the
“IJ must still consider all evidence introduced by the applicant.” Id. (emphasis in
original).
Although minor inconsistencies will not support an adverse credibility
finding, inconsistencies going “to the heart of [the] asylum claim” are sufficient to
support such a finding. Chebchoub v. I.N.S., 257 F.3d 1038, 1043 (9th Cir. 2001);
see also Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1369 (11th Cir. 2005) (holding
the IJ’s concerns about the credibility of the applicant on “key elements of the
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claim” and the applicant’s failure to rebut these with sufficient corroborating
evidence and explanation supported finding that applicant did not qualify for
asylum).1
Here, the IJ made an explicit adverse credibility finding without reaching the
issue of Medina’s statutory eligibility for asylum, withholding of removal, and
relief under CAT. The IJ gave specific, cogent reasons for his credibility
determination, and these findings are supported by substantial evidence. See
Forgue, 401 F.3d at 1287. The IJ’s adverse credibility finding was primarily based
on (1) inconsistencies between Medina’s asylum testimony and his declaration;
(2) omissions in Medina’s asylum application; and (3) inconsistencies between
Medina’s testimony and the police report filed by his mother.
Substantial evidence supports the IJ’s finding there were material
inconsistencies between Medina’s asylum testimony, his declaration, and the
police report filed by his mother. Medina testified he began receiving threats in
March 2001, yet his declaration and asylum referral assessment state the threats
began in 2000, and his mother reported his problems began in 2002. This
1
Congress recently amended the law regarding credibility determinations, but those
changes only apply to applications for asylum filed after May 11, 2005. REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231, § 101(h)(2). Under the new law, the credibility determination
is based on the totality of the circumstances, which may include inaccuracies or falsehoods that
do not go to the “heart of the applicant’s claim.” Id. at § 101(a)(3). As Medina filed his
application in 2003, his application is unaffected by this change.
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inconsistency goes to the heart of his claim because his claim of past persecution is
based on a series of alleged threats by the FARC, and his failure to recall when the
threats began casts doubt on his entire claim. Further, he originally testified his
mother was in Cali in November 2002, which is inconsistent with her statement
she was threatened in her store, which was in Bogota, in November 2002. These
inconsistencies also go the heart of his claim because he testified he did not intend
to remain in the United States, but when his family received threats after his
departure, he decided to stay. If he partly based his decision to remain in the
United States on these threats, the inconsistencies in his account of the threats
undermines his credibility. Accordingly, the IJ’s finding that these inconsistencies
were serious and material is supported by substantial evidence.2
Substantial evidence also supports the IJ’s finding the omissions in Medina’s
asylum application were material. Medina did not mention in his asylum
declaration that (1) he was transferred to the Kennedy neighborhood school; (2) he
received three threatening notes from September through November 2001; (3) his
mother was a victim of extortion by the FARC; or (4) he was physically harmed on
2
To the extent the IJ rejected Medina’s explanation for the inconsistency between the
dates when Medina first started getting threats, i.e., his lawyer failed to translate his testimony
correctly, that finding is not supported by substantial evidence. The IJ first opined his attorney,
Nora Relo-Maneto, was very competent, and she would have put Medina’s claim in the asylum
application had Medina mentioned it to her. Paradoxically, the IJ then specifically found Relo-
Maneto did not prepare Medina’s application.
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March 8, 2002. These omissions go to the heart of his claim because his claim is
based on the alleged threats he received in the classroom, his encounter with the
urban guerrillas on March 8, 2002, and the threats his family received after he left.
See Xie v. Ashcroft, 359 F.3d 239, 243-46 (3d Cir. 2004) (holding material
inconsistencies between petitioner’s asylum application and testimony and
omissions in his asylum application reflected adversely on his credibility
notwithstanding his claim that a travel agent filled out his application improperly).
Because the denial of asylum and withholding of removal cannot be based
solely on an adverse credibility claim if the applicant offered "other evidence of
persecution," this Court must next consider whether the IJ considered all the record
evidence. See Forgue, 401 F.3d at 1287 (noting where an applicant produces other
evidence of persecution, the IJ must consider that evidence, and it is not sufficient
for the IJ to rely solely on the adverse credibility determination). The other
evidence offered by Medina was the police report filed by his mother and the 2003
Country Report. For the reasons discussed above, the police report was materially
inconsistent with his testimony and asylum application. Additionally, the Country
Report, without credible testimony, does not help Medina’s claim. Accordingly,
the IJ’s finding that Medina’s testimony was not credible is supported by
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substantial evidence, and nothing in the record compels this Court to reverse the IJ.
Thus, we deny Medina’s petition for review.3
PETITION DENIED.
3
Although Medina argues the IJ erred in finding he did not establish past persecution or
a well-founded fear of future persecution on account of one of the statutorily protected grounds,
we will not address those arguments because the IJ never reached the merits of Medina’s asylum
claim and denied his application based on the adverse credibility finding alone. See Gonzales v.
Thomas, 126 S. Ct. 1613, 1615 (2006) (holding a court of appeals is generally not empowered to
make findings on an issue the BIA neglected to address). Medina also contends the BIA abused
its discretion in affirming without opinion the IJ’s decision. We have held the BIA’s summary
affirmance procedure does not violate due process. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1289 (11th Cir. 2003).
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