Ximena Clavijo Afanador v. U.S. Attorney General , 325 F. App'x 839 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14872 APRIL 30, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency Nos. A095-537-426, A095-537-427
XIMENA CLAVIJO AFANADOR,
JOSE MAURICIO MARTINEZ ANGARITA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 30, 2009)
Before TJOFLAT, DUBINA, and BARKETT, Circuit Judges.
PER CURIAM:
Ximena Clavijo Afanador (Clavijo) and her husband, Jose Mauricio
Martinez Angarita, natives and citizens of Colombia, petition for review of the
Board of Immigration Appeals’s (BIA) dismissal of their appeal from the
Immigration Judge’s (IJ) denial of asylum and withholding of removal. They
argue that the IJ and BIA incorrectly determined that Clavijo’s testimony at the
asylum hearing was incredible.
We review 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).
Here, the BIA wrote a separate opinion that discussed several of the IJ’s specific
findings and concluded that the IJ had not erred in its adverse credibility
determination. Thus, we review the BIA’s decision and the underlying reasoning
of the IJ. “We will not reverse unless the record compels a contrary conclusion.”
De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006 (11th Cir. 2008).
Credibility determinations are reviewed under the substantial evidence
standard. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). We may
not substitute our judgment for that of the factfinder when reviewing credibility
findings. Id. “Indications of reliable testimony include consistency on direct
examination, consistency with the written application, and the absence of
embellishments.” Id. Credible, uncorroborated testimony can be sufficient to
satisfy the applicant’s burden of proof of eligibility, whereas an adverse credibility
determination alone can be sufficient to support a denial of asylum. Ruiz, 440 F.3d
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at 1255 (quoting Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)).
Once the factfinder has made an adverse credibility determination, the applicant
bears the burden of showing that the finding was not supported by specific, cogent
reasons or was not based on substantial evidence. Id. (quoting Forgue, 401 F.3d at
1287). If the applicant produces evidence in addition to her otherwise incredible
testimony, the factfinder has a duty to review that evidence and may not rely solely
on the adverse credibility determination in deciding whether to grant asylum. Id.
(quoting Forgue, 401 F.3d at 1287). The weaker the applicant’s testimony, the
greater the need for corroborating evidence. Yang v. U.S. Attorney Gen., 418 F.3d
1198, 1201 (11th Cir. 2005).
In upholding the IJ’s adverse credibility determination, the BIA specifically
relied on Clavijo’s failure to mention two key parts of her claim – an attempted or
threatened rape and a shooting that resulted in the death of her co-worker – in her
asylum application. On appeal, Clavijo’s only argument regarding the adverse
credibility determination is that she was not given an opportunity to explain this
discrepancy. However, this contention is contradicted by the transcript of the
asylum hearing, which indicates that Clavijo was asked about the omission of this
information to which she responded that it was correct that her asylum application
omitted these key events. We also note that the documentary evidence that Clavijo
provided in support of her asylum claim did not provide information to corroborate
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her claims. Thus, the BIA’s affirmance of the adverse credibility determination is
supported by substantial evidence. The record does not compel the conclusion that
Clavijo’s testimony was credible.
For the foregoing reasons, we deny the petition for review.
PETITION DENIED.
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