Hector Fabio Posso v. U.S. Attorney General , 213 F. App'x 909 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 12, 2007
No. 06-13848 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A97-624-094
HECTOR FABIO POSSO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 12, 2007)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Hector Fabio Posso, through counsel, seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming, without opinion, the
immigration judge’s (“IJ”) order finding him removable and denying his
application for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”), and relief under the United Nations Convention on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c).
Applications for Asylum and Withholding of Removal
Posso argues that the IJ committed numerous errors when he denied Posso’s
application for asylum and withholding of removal. He argues that the IJ erred by
making an adverse credibility finding because inconsistencies in his story were due
to “inevitable problems associated with documents and testimony” and not because
he was intentionally misrepresenting himself in his testimony. He also claims that
inconsistencies between his application and his testimony were minor and non-
material and that the failure to include information on his application should not
support an adverse credibility finding. Therefore, he asserts that the IJ’s adverse
credibility finding is not supported by substantial evidence. In addition, Posso
argues that the assassination of his employer, who was a politician, threatening
telephone calls he received, threatening visits he received where guns were
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displayed, and a threat to his wife constituted more than mere harassment and rose
to the level of persecution.
Because the BIA summarily affirmed the IJ without opinion, we review the
IJ’s opinion. see 8 C.F.R. § 1003.1(e)(4); Mendoza v. U.S. Attorney Gen., 327
F.3d 1283, 1284 n.1 (11th Cir. 2003). “To the extent that the [IJ’s] decision was
based on a legal determination, [our] review is de novo.” D-Muhumed v. U.S.
Attorney Gen., 388 F.3d 814, 817 (11th Cir. 2004). “The IJ’s findings of fact are
reviewed under the substantial evidence test,” and we must affirm the IJ’s decision
“if it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Antipova v. U.S. Attorney Gen., 392 F.3d 1259, 1261
(11th Cir. 2004). In addition, we cannot find, or consider, facts that were not raised
before in the administrative forum. Forgue v. U.S. Attorney Gen., 401 F.3d 1282,
1286 (11th Cir. 2005) .
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A
“refugee” is
any person who is outside any country of such person’s
nationality or, in the case of a person having no
nationality, is outside any country in which such person
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last habitually resided, and who is unable or unwilling to
return to, and is unable or unwilling to avail himself or
herself of the protection of, that country 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). The asylum applicant carries the
burden of proving statutory “refugee” status. Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001).
To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that the statutorily listed factor will cause such future
persecution. 8 C.F.R. § 208.13(a), (b); Najjar, 257 F.3d at 1287. “Demonstrating
such a connection requires the alien to present specific, detailed facts showing a
good reason to fear that he or she will be singled out for persecution on account of”
a statutory factor. Najjar, 257 F.3d at 1287 (quotations omitted) (emphasis in
original). An asylum applicant may not show merely that he has a political
opinion, but must show that he was persecuted because of that opinion. INS v.
Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992). We
have held that “persecution,” as used to illustrate that an alien has suffered “past
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
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persecution.” Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1231 (11th Cir.
2005) (quotations and alterations omitted).
We review credibility determinations under the substantial evidence test, 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. In order to review a
credibility determination, it must first be established that the IJ made an adverse
credibility finding. See Yang v. U.S. Attorney Gen., 418 F.3d 1198, 1201 (11th
Cir. 2005). “IJ’s must make clean determinations of credibility.” Id. (quotation
omitted). Furthermore,
the IJ must offer specific, cogent reasons for an adverse
credibility finding. 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. A credibility determination, like any fact
finding, may not be overturned unless the record compels
it.
Forgue, 401 F.3d at 1287 (citations and quotations omitted).
If credible, an alien’s testimony may be sufficient, without corroboration, to
sustain his burden of proof in establishing his eligibility for relief from removal.
Forgue, 401 F.3d at 1287. “Conversely, an adverse credibility determination alone
may be sufficient to support the denial of an asylum application.” Id. However,
“an adverse credibility determination does not alleviate the IJ’s duty to consider
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other evidence produced by an asylum applicant.” If an applicant produces
evidence beyond his own testimony, “it is not sufficient for the IJ to rely solely on
an adverse credibility determination in those instances.” Id.In this case, the IJ cleanly made an adverse credibility finding which was
supported by substantial evidence. Moreover, the contradictions in Posso’s
testimony and asylum application are neither minor or non-material and go to the
heart of Posso’s claim because they relate to when Posso moved in response to the
threats he claims he received.
Additionally, although the district court still had to look at the other
evidence Posso submitted in support of his application, none of the other evidence
Posso submitted established that he had been threatened. Therefore, there is
substantial evidence supporting the IJ’s finding that Posso failed to show that he
suffered past persecution or had a well-founded fear of future persecution.
Accordingly, Posso failed to establish that he was entitled to asylum. See Najjar,
257 F.3d at 1287. Likewise, Posso also failed to meet the more difficult standard
used for withholding of removal. See id. at 1292-93.
CAT Claim
Posso also argues that the IJ erred in denying his claim for CAT relief. The
government responds that this Court does not have jurisdiction to review the denial
of Posso’s CAT claim because Posso did not challenge that denial before the BIA.
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We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v. U.S.
Attorney Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We “may review a final
order of removal only if the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1). The requirements of
§ 1252(d) are jurisdictional. Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003).
Therefore, we do not have jurisdiction to review immigration claims that are not
raised before the BIA. See Fernandez-Bernal v. Attorney General, 257 F.3d 1304,
1317 n.13 (11th Cir. 2001).
Because Posso failed to mention either his CAT claim or torture in either his
notice of appeal to the BIA or in the brief supporting his appeal to the BIA, we do
not have jurisdiction to review the IJ’s denial of Posso’s CAT claim. See
Fernandez-Bernal, 257 F.3d at 1317 n.13.
BIA’s Affirmance Without Opinion
Finally, Posso argues that the BIA erred by affirming the IJ’s order without
an opinion because the errors by the IJ were material and significant. Under 8
C.F.R. § 1003.1(e)(4), a single member of the BIA may affirm, without opinion,
the decision of the IJ if the member determines that, inter alia, any errors in the IJ’s
decision were harmless or nonmaterial.
We must reject Posso’s claim that the IJ committed harmful and material
error. Before the BIA, Posso raised the same arguments he raised on appeal and
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which have been found to be without merit herein. Because the IJ did not err, the
BIA’s affirmance without opinion was neither harmful nor material error.
PETITION DENIED.
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