Rincon Bedoya v. Gonzales , 253 F. App'x 44 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2785
AQUÍLES DE JESÚS RINCÓN-BEDOYA,
Petitioner,
v.
PETER D. KEISLER, ACTING UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Delgado-Colón,* District Judge.
José A. Espinosa on brief for petitioner.
Douglas E. Ginsburg, Senior Litigation Counsel, Office of
Immigration Litigation, and Ari Nazarov, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
November 5, 2007
______________
*Of the District of Puerto Rico, sitting by designation.
Per Curiam. The petitioner, Aquíles de Jesús Rincón-
Bedoya, challenges a decision of the Board of Immigration Appeals
(BIA) denying his applications for withholding of removal and for
protection under the United Nations Convention Against Torture
(CAT). Discerning no error, we deny the petition for judicial
review1 and uphold the BIA's removal order.
The petitioner formerly taught physical education at the
Colegio Padre Majaleta, a school in his native Colombia. He left
his homeland on May 4, 2003, and entered the United States at
Miami, Florida, using forged travel documents. He was apprehended
immediately and, on May 8, the Immigration and Naturalization
Service (INS) charged him with being an alien who by fraud or
misrepresentation had sought to procure admission into the United
States in violation of section 212(a)(6)(C)(i) of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(C)(i). The INS
also charged him, under section 212(a)(7)(A)(i)(I) of the INA, with
failing to possess a valid entry document at the time of his
admission. Id. § 1182(a)(7)(A)(i)(I).
As events unfolded, the petitioner made conflicting
statements concerning his reasons for fleeing Colombia. For
example, on May 4, 2003, he stated to an immigration officer that
he had departed because his father-in-law had been kidnaped and his
1
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler has been substituted for former Attorney General
Alberto R. Gonzales as the respondent herein.
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wife had been threatened over the telephone. He voiced a belief
that he would be harmed if he returned to Colombia. Three days
later, however, he stated during a "credible fear" interview that
both he and his wife had been threatened, and that the threats to
his wife flowed from her relationship with him. He attributed
those threats to disparaging remarks that he purportedly had made
to his students about a local guerilla group.
During that interview, the petitioner mentioned that his
father-in-law had been kidnaped for political or ideological
reasons. In the same interview, he claimed, for the first time,
that he had been assaulted while in Colombia. He said that two men
on a motorcycle approached him, threw him to the ground, and
threatened his life. He again expressed a fear that he would be
killed if he returned to Colombia.
In due season, the authorities instituted removal
proceedings. The petitioner conceded removability and cross-
applied for withholding of removal and protection under the CAT.
In an attached statement, he rehearsed the comments that he
supposedly had made to his students, recounted the menacing
telephone calls supposedly received by his wife, and again
described the motorcyclists' purported assault on his person. He
also revised his story about his father-in-law's kidnaping,
claiming that it was motivated both by economic reasons (because
his father-in-law might prove to be a munificent source of
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"protection money") and by political animus (because his father-in-
law shared the petitioner's political views).
On July 1, 2005, a hearing was held before an immigration
judge (IJ). The petitioner testified that he had worked at a
school and had spoken out against the guerillas while addressing
his students. He also testified about his run-in with the men on
the motorcycle, recounting that they threatened him and used
obscenities. This time around, however, he admitted that they did
not harm him physically. When cross-questioned, he expressed
uncertainty about why he did not mention being threatened and
assaulted during his original immigration interview. Finally, he
conceded that his father-in-law's kidnaping and the threats made to
his wife had more to do with his father-in-law's business than with
anybody's politics.2
The petitioner's testimony was fuzzy as to how well he
was able to communicate with the immigration officer during his
initial interview. At first, he intimated that there was no
Spanish-language interpreter present and that the immigration
officer was not himself proficient in conversational Spanish.
2
In the course of his testimony, the petitioner stated that he
had belonged to various groups while in Colombia, including one
called the Sports Movement of Vienta. His testimony about that
group's political status was vague and, therefore, we treat that
membership as immaterial to his petition for judicial review.
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Moments later, however, he stated that he "believe[d]" that he and
the immigration officer "did get the communication straight."
Following the hearing, the IJ ordered the petitioner's
removal and, concomitantly, denied his entreaties for withholding
of removal and protection under the CAT. Citing his inconsistent
statements and the utter absence of any independent corroboration,
the IJ found the petitioner not credible. Given that finding, the
petitioner was unable to carry his burden of proof on either of his
requests for relief.
The petitioner pursued an administrative appeal. On
November 29, 2006, the BIA affirmed the IJ's decision. It noted
that the petitioner had neither provided any convincing explanation
for his inconsistent statements nor furnished any corroborative
evidence.
The petitioner then filed this timely petition for
judicial review. We have jurisdiction under 8 U.S.C. § 1252(b)(2).
We start with the standard of review. In the case at
hand, the BIA endorsed, and relied upon, the findings of the IJ,
while adding its own supporting views. In that sort of situation,
we review in tandem the decisions of both the IJ and the BIA. Ouk
v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006); Romilus v.
Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
That review proceeds in line with the familiar
substantial evidence standard. Under that rubric, the BIA's
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decision must be upheld as long as it is "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). This is
a deferential standard; it allows a reviewing court to reverse the
BIA's determination of a relevant fact "only when the record
evidence would compel a reasonable factfinder to make a contrary
determination." Aguilar-Solís v. INS, 168 F.3d 565, 569 (1st Cir.
1999).
This case involves a subset of the substantial evidence
rule dealing with the credibility of witnesses. When the agency
has made an adverse credibility determination based on specific
findings, a reviewing court must treat that determination with
considerable respect. See Olujoke v. Gonzales, 411 F.3d 16, 21-22
(1st Cir. 2005); Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.
2004). Even so, the court's role is not reduced to that of a
rubber stamp. To be supportable, an adverse credibility
determination must be accompanied by particularized and persuasive
findings, expressly articulated or easily inferable from context,
sufficient to give it weight. Nikijuluw v. Gonzales, 427 F.3d 115,
121 (1st Cir. 2005) (explaining that "an IJ must offer a specific
and cogent rationale for disbelieving the alien"); El Moraghy v.
Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003) (noting that appellate
deference on credibility questions in immigration cases "is
expressly conditioned on support in the record, as evidenced by
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specific findings"). Moreover, an adverse credibility
determination cannot rest on trivia but, rather, must rest on
discrepancies that involve matters of consequence. Pan v.
Gonzales, 489 F.3d 80, 86 (1st Cir. 2007); Bojorques-Villanueva v.
INS, 194 F.3d 14, 16 (1st Cir. 1999).
An alien's credible testimony, standing alone, may be
sufficient to sustain his burden of proof even without
corroboration. See Pan, 489 F.3d at 86; see also 8 C.F.R. §
208.16(b). But when an IJ supportably determines that an alien's
testimony lacks veracity, that adverse credibility determination
divests the testimony of probative force and the testimony may,
therefore, be disregarded or discounted. See Pan, 489 F.3d at 86;
Nikijuluw, 427 F.3d at 121. Thus, an adverse credibility
determination may prove fatal to an alien's claim for withholding
of removal or other relief. Pan, 489 F.3d at 86; Stroni v.
Gonzales, 454 F.3d 82, 89 (1st Cir. 2006).
Against this backdrop, we turn to the legal framework
surrounding this case. We start with withholding of removal.
In order to establish eligibility for withholding of
removal, an alien has the burden of proving that it is more likely
than not that his life or freedom will be threatened were he
repatriated. See 8 C.F.R. § 208.16(b); see also Pan, 489 F.3d at
85-86. If the alien provides credible evidence that he has
suffered past persecution on one of five enumerated grounds, it may
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be presumed the he will be persecuted in the future should he
return to his homeland. See 8 C.F.R. § 208.16(b)(1)(i). The five
enumerated grounds are race, religion, nationality, membership in
a particular social group, and political opinion. See 8 U.S.C. §
1101(a)(42); 8 C.F.R. § 208.16(b)(2); see also Da Silva v.
Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).
To constitute persecution, "a person's experience must
rise above unpleasantness, harassment, and even basic suffering."
Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000); see Bocova v.
Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) (finding that two
incidents, occurring more than twenty-five months apart, were
insufficient "to suggest that the petitioner was systematically
targeted for abuse on account of his political beliefs"). In
short, a finding of persecution requires more than the happening of
one or two disagreeable events.
In the case at bar, the petitioner's primary argument is
that the IJ's evaluation of his credibility was incorrect. He
maintains that his testimony should have been credited and that it
sufficed to prove all the elements necessary to entitle him to
relief. In his view, his experience with the local guerilla group
qualifies as past persecution and, thus, creates the basis for a
well-founded fear of future persecution.
We disagree. The petitioner's argument assumes the
veracity of his testimony — testimony that both the IJ and the BIA
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found unworthy of credence. That adverse credibility determination
is fully supportable: the petitioner's statements about material
matters were markedly inconsistent at crucial points. Furthermore,
these inconsistencies were not adequately explained. The adverse
credibility determination was, therefore, unimpugnable. See, e.g.,
Mewengkang v. Gonzales, 486 F.3d 737, 740 (1st Cir. 2007); Dhima v.
Gonzales, 416 F.3d 92, 96 (1st Cir. 2005).
To be sure, the petitioner argues with considerable
fervor that the IJ and the BIA incorrectly appraised his
credibility. But this is sound and fury, signifying very little.
If an alien is to prevail under the substantial evidence standard,
"the administrative record, viewed in its entirety, must compel the
conclusion that he is [eligible for the requested relief]."
Aguilar-Solís, 168 F.3d at 569. In this instance, it is
transparently clear that, on whole-record review, the petitioner
cannot pass this daunting test.
The remainder of the case is child's play. Stripping the
petitioner's (incredible) testimony out of the equation, there is
simply no way that a reasonable adjudicator could find either past
persecution or a well-founded fear of future persecution. Thus,
the claim for withholding of removal founders.
The petitioner's CAT claim need not detain us. In order
to establish eligibility for protection under the CAT, an alien
must prove a likelihood that he will be tortured if returned to his
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country of origin. See Stroni, 454 F.3d at 89-90. He may
demonstrate this likelihood by providing evidence of past torture.
8 C.F.R. § 208.16(c)(3)(i).
If there is any evidence of torture here — a question we
do not reach — that evidence is washed away by the adverse
credibility determination. Since that determination must be
respected, see text supra, the CAT claim topples.
In this venue, the petitioner also advances a due process
claim. This claim is poorly developed but, as best we can tell, he
argues that he was unable to communicate clearly with his
interlocutors during at least one of his interviews and that this
inability caused the IJ to determine that his statements were
inconsistent. Building on this foundation, he maintains that the
BIA violated his due process rights by failing to take into
account, or to address, the IJ's reliance on these alleged
miscommunications.
This is wishful thinking. There is no mechanical
checklist for BIA decisions. For aught that appears here, the BIA
reviewed the whole of the record, applied the appropriate standard
of review, and satisfactorily explained its decision. No more was
exigible.
The petitioner's attempt to rely on Haoud v. Ashcroft,
350 F.3d 201 (1st Cir. 2003), is unavailing. There, the BIA
affirmed without opinion an IJ's decision to deny asylum. Id. at
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204. In doing so, the BIA disregarded a relevant precedent that
had been decided between the time of the IJ's ruling and the time
of its ruling, notwithstanding that the petitioner had brought the
precedent to the BIA's attention. Id. This court remanded,
holding that the BIA may not use the affirmance without opinion
procedure, 8 C.F.R. § 1003.1(e)(4), without giving due
consideration to its own precedents. Haoud, 350 F.3d at 207-08.
The petitioner's case is unlike Haoud in obvious ways.
Here, the BIA did not use the affirmance without opinion procedure
at all but, rather, wrote a reasoned opinion of its own. Moreover,
it did not overlook a controlling precedent. Consequently, Haoud
is inapposite and we therefore dismiss the petitioner's due process
claim as unfounded.
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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