Coloma Johnson v. Holder

FILED
NOT FOR PUBLICATION MAR 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
CARLOS ENRIÏUE COLOMA No. 05-75880
JOHNSON,
Agency No. A095-600-271
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 11, 2010
San Francisco, California
Before: FERNANDEZ, THOMAS and CALLAHAN, Circuit Judges.
Carlos Enrique Coloma Johnson ('Coloma'), a native and citizen of Peru,
petitions for review of the Board of Immigration Appeals' ('BIA') denial of his
applications for asylum, withholding of removal, and relief under the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
against Torture ('CAT'). We have jurisdiction pursuant to 8 U.S.C. y 1252, and
we deny the petition.1
Where, as here, the BIA adopts the immigration judge's ('IJ') decision
without comment, we review the IJ's decision. Don v. Gonzales, 476 F.3d 738,
741 (9th Cir. 2006). We review the IJ's adverse credibility determination for
substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995). Under
this standard, 'administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.' 8 U.S.C. y
1252(b)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
Coloma, a retired Peruvian policeman, alleges that a secret paramilitary
organization run by Fujimori's Chief of Intelligence (Grupo Colina) persecuted
him for more than nine years by maµing daily anonymous, threatening telephone
calls to his house, arranging for his dangerous job assignments, and maµing two or
three 'attempts' on his life. He alleges that Grupo Colina targeted him because he
refused to join it and tried to investigate their wrongdoing.
The IJ found that Coloma's 'overall version of events' was not credible, and
pointed to several inconsistencies and implausibilities in his sworn statements. For
1
Because the parties are familiar with the facts, we repeat them here only as
necessary to the disposition of this case.
2
example, the IJ noted that Coloma claimed that he could not safely return to Peru,
but had done so twice while Fujimori was still in power, each time coming bacµ
from the United States without seeµing asylum because he was 'not interested' in
it. Coloma also claimed that Grupo Colina punished him by arranging his transfer
into dangerous drug trafficµing regions, but also claimed that his transfers out of
those regions and into 'desµ jobs' were punishment. Further, although Coloma
claimed that Grupo Colina tried to stop his investigations into its activities by
moving him to dangerous field assignments, the record shows he was transferred
bacµ into an investigative unit as late as 1997.
Furthermore, the IJ found that, assuming the threatening telephone calls
occurred, they appeared to be more consistent with threats by narco-trafficµers that
Coloma had arrested and testified against than with threats by Grupo Colina. This
conclusion was reasonable since, according to Coloma, the callers said that he had
'done [them] a lot of damage,' and Coloma presented no evidence that his refusal
to join Grupo Colina adversely affected it. Moreover, his alleged attempts to
expose its wrongdoing were admittedly unsuccessful. On this record, we are not
compelled to reach a conclusion contrary to the IJ's, and we must uphold the IJ's
3
adverse credibility finding.2 Because Coloma's testimony regarding his alleged
past persecution is not credible, we conclude that Coloma's asylum application was
properly denied. See Li v. Ashcroft, 378 F.3d 959, 960 (9th Cir. 2004).
Moreover, we conclude that, even assuming the alleged harassment
occurred, there is no evidence to compel the conclusion that it was 'on account of'
Coloma's political opinion or membership in a social group. Coloma gave
differing reasons (including non-political ones) for why he refused to join the
group, and there was no evidence showing that Grupo Colina imputed a political
opinion to him, or that it was responsible for the alleged persecution. See Navas v.
INS, 217 F.3d 646, 655-57 (9th Cir. 2000). For these same reasons, we conclude
that the alleged persecution was also not 'on account of' his membership in a
purported social group, i.e., 'policemen who refused to join Grupo Colina and
investigated corruption.' Neither does the record compel the conclusion that he
was harassed because he was a 'former policemen in the Peruvian National Police
Force.' Cf. Montecino v. INS, 915 F.2d 518, 520 (9th Cir. 1990) (recognizing
2
The IJ did not err by declining to maµe specific credibility determinations
regarding the testimony of Coloma's wife and daughter. Each of them provided
testimony similar to Coloma's, none of which compels reversal of the IJ's findings.
Coloma's other allegedly corroborating evidence (e.g., a psychologist's diagnosis
and his career record) is also insufficient to compel reversal because it does not
resolve the inconsistencies discussed above.
4
persecution where ex-soldiers were targeted by the opposition for their past
affiliation with the military). Indeed, here, Coloma alleged that it was Grupo
Colina that forced him into early retirement.3
Coloma's failure to establish a credible claim of past persecution dooms his
claim of a well-founded fear of future persecution. See Valderrama v. INS, 260
F.3d 1083, 1085 (9th Cir. 2001) (citing Pal v. INS, 204 F.3d 935, 939 (9th Cir.
2000)). Indeed, Coloma twice returned safely to Peru without seeµing asylum.
Because Coloma has failed to establish his eligibility for asylum, he cannot
meet the higher burden for withholding of removal. Zehatye v. Gonzales, 453 F.3d
1182, 1190 (9th Cir. 2006). Finally, nothing in the record compels the conclusion
that Coloma 'is more liµely than not to suffer intentionally-inflicted cruel and
unusual treatment' if removed to Peru. See Nuru v. Gonzales, 404 F.3d 1207,
1221 (9th Cir. 2005).
DENIED.
3
We also reject Coloma's alternative argument that he is eligible for asylum
even if his persecutors were narco-trafficµers that the government was unable to
control. The IJ did not err in observing that Coloma never asµed the government
to protect him from narco-trafficµers. See Baballah v. Ashcroft, 367 F.3d 1067,
1078 (9th Cir. 2004). Further, Coloma's assertion that his status as a government
employee, by itself, establishes an 'imputed political opinion' is unavailing, as he
does not explain what opinion the narco-trafficµers may have been imputed to him,
or the nexus between his job and the purported opinion. Cf. Sagayadaµ v.
Gonzales, 405 F.3d 1035, 1042-43 (9th Cir. 2005).
5
FILED
Coloma Johnson v. Holder, No. 05-75880 MAR 30 2010
MOLLY C. DWYER, CLERK
THOMAS, Circuit Judge, concurring: U.S . CO UR T OF AP PE A LS
The immigration judge's adverse credibility determination was founded on
impermissible speculation, and the IJ failed to address the petitioner's explanation
for the purported inconsistencies. Thus, I cannot agree that substantial evidence
supports the adverse credibility determination. See Kaur v. Ashcroft, 379 F.3d 876,
887 (9th Cir. 2004) ('An adverse credibility finding is improper when the IJ fails
to address a petitioner's explanation for a discrepancy or inconsistency.'); see also
Guo v. Ashcroft, 361 F.3d 1194, 1201-02 (9th Cir. 2004) (IJ speculated
impermissibly as to why applicant did not apply for asylum immediately upon
entry).
However, substantial evidence does support the IJ's alternative holding
denying relief on the merits. Therefore, I concur in the denial of the petition for
review.