Vidal Bachem v. U.S. Attorney General , 223 F. App'x 853 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 20, 2007
No. 06-14333 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A96-281-372 & A96-281-292
VIDAL BACHEM,
NORMA JACQUELINE GERALDO,
RUTH ITZEL BACHEM,
HANS ADONAI BACHEM,
AIPSSE BACHEM,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 20, 2007)
Before ANDERSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Vidal Bachem, a citizen of Paraguay appearing pro se, on behalf of himself
and his wife and three children, Norma Jacqueline Geraldo, Ruth Itzel Bachem,
Hans Adonai Bachem, and Aipsse Bachem, seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
order finding him and his family 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 Against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (“CAT”), INA § 241(b)(3), 8
U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.16(c).1
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Because the BIA agreed with the IJ’s findings
as to Bachem’s eligibility for asylum, withholding of removal, and relief under
CAT and made additional observations, we review both decisions with the
exception of the IJ’s timeliness ruling, which the BIA reversed. See id.The IJ’s and BIA’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
1
Bachem’s brief fails to mention relief under the CAT, so this claim is abandoned.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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whole.” Forgue v. U. S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal
quotations and citations omitted). The substantial evidence test is “deferential” and
does not allow “re-weigh[ing] the evidence from scratch.” Mazariegos v. U.S.
Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). “To reverse the IJ’s fact
findings, we must find that the record not only supports reversal, but compels it.”
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (considering
withholding-of-removal claim). The fact that evidence in the record may also
support a conclusion contrary to the administrative findings is not enough to justify
a reversal. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006).
“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 determination, like any fact finding, may not be overturned unless the
record compels it.” Forgue, 401 F.3d at 1287 (internal quotations and citations
omitted). The IJ must make clean findings of credibility. See 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.”
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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. Id. “[T]he weaker the applicant’s
testimony, . . . the greater the need for corroborative evidence.” Yang, 418 F.3d at
1201. We may not reverse an IJ’s determination that corroborative evidence was
available unless we find it is compelled to do so. INA § 242(b)(4), 8 U.S.C.
§ 1252(b)(4).
On appeal, Bachem first argues that it was improper for the IJ to base an
adverse credibility finding on his testimony that Walter Bower was still the
Paraguayan Minister of the Interior. Bachem maintains that he had gained
knowledge of the government corruption while Bower was in office, and since
Bower was a high ranking official in Paraguay where charges against such officials
rarely result in any meaningful sanction, Bachem will be in danger if returned to
Paraguay.
The IJ’s adverse credibility finding is supported by substantial evidence.
At his asylum hearing, Bachem testified that Walter Bower was still the Minister of
the Interior. During cross-examination, Bachem admitted that before he left
Paraguay, Bower had been removed as Minister of the Interior. When confronted
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with his previous testimony, Bachem explained that he had said Bower was still in
office “[b]ecause I thought they were going to ask me the name of the actual
minister and I don’t know it.” According to the 2001 country report on Paraguay,
Bower was removed in October 2000, about nine months before Bachem arrived in
the United States. Thus, the IJ’s credibility finding on this point was specific, and
it was cogent because Bachem’s claim relied heavily on fear of government
reprisal for objecting to corruption. Further, the IJ’s observation that it was
incredible that Bachem would continue dangerous police work when he could live
comfortably as an architect was supported and reasonable and also related to
Bachem’s reprisal claims. The IJ and BIA did not consider the adverse credibility
finding dispositive, so the analysis continues.
Bachem also argues that based on the record as a whole, he should be
granted asylum. He testified that he obtained “sensitive and potentially damaging
information” about his superiors. Based on his actions, his superiors no longer
considered him trustworthy, and after his visible participation in an anti-corruption
march, which was publicized by the Paraguayan press, his superiors decided to get
rid of him lest he expose the corruption.
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 Attorney General or
Secretary of the DHS has discretion to grant asylum if the alien meets the INA’s
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definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is
defined in the INA as
any person who is outside any country of such person’s nationality . . .
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. Al Najjar, 257 F.3d at 1284. 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); see Al 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].” Al Najjar, 257 F.3d at 1287
(internal quotations and citation omitted) (emphasis in original).
We recognize that “‘persecution’ is an ‘extreme concept,’ requiring ‘more
than a few isolated incidents of verbal harassment or intimidation,’ and that
‘[m]ere harassment does not amount to persecution.’” Sepulveda v. U.S. Atty.
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (citation omitted). In Sepulveda, we
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held that menacing telephone calls and threats to the alien, her family members,
and colleagues did not rise to the level of past persecution. Id.If the alien establishes past persecution, it is presumed that his life or
freedom would be threatened upon a return to that country, unless the government
shows by a preponderance that the country’s conditions have changed such that the
applicant’s life or freedom would no longer be threatened upon his removal or that
the alien could relocate within the country, and it would be reasonable to expect
him to do so. 8 C.F.R. § 208.13(b). An alien who has not shown past persecution
may still be entitled to asylum if he can demonstrate a future threat in his country
to his life or freedom on a protected ground. 8 C.F.R. § 208.13(b)(2). To establish
a well-founded fear, “an applicant must demonstrate that his or her fear of
persecution is subjectively genuine and objectively reasonable.” Al Najjar, 257
F.3d at 1289. However, if the IJ finds that the alien could avoid a future threat by
relocating to another part of his country, and it would be reasonable to require the
alien to do so, he cannot demonstrate a well-founded fear of persecution. See 8
C.F.R. § 208.13(b)(1)-(2).
A “well-founded fear” of persecution may be established by showing (1)
past persecution that creates a presumption of a “well-founded fear” of future
persecution, (2) a reasonable probability of personal persecution that cannot be
avoided by relocating within the subject country, or (3) a pattern or practice in the
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subject country of persecuting members of a statutorily defined group of which
Bachem is a part. 8 C.F.R. § 208.13(b)(1) & (2).
To qualify for withholding of removal under the INA, an alien must show
that his or her life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. INA §
241(b)(3), 8 U.S.C. § 1231(b)(3). The evidentiary burden for withholding of
removal is greater than that imposed for asylum, accordingly, if an alien has not
met the well-founded fear standard for asylum, he generally cannot meet the
standard for withholding of removal. Al Najjar, 257 F.3d at 1292-93.
Substantial evidence supports the IJ’s and BIA’s finding that Bachem did
not suffer past persecution because he was never arrested, beaten, or physically
tortured, and the verbal threats did not constitute persecution. From January 2000,
when Bachem was transferred to a new department, until June 2001, he did not
have any major problems. Geraldo testified that the oldest daughter remained in
the same school, without incident, from the time Bachem left Paraguay until her
departure five months later.
Substantial evidence also supports the BIA’s and IJ’s conclusion that
Bachem did not establish a well-founded fear of future persecution. Bowers, the
official whom Bachem fears, was removed from office in October 2000, stripped
of his Congressional immunity, and had charges pending against him at the end of
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2001. Bachem admitted that he could have left the police force to make a very
comfortable living as an architect. When asked why he did not just quit the police
force to solve his problems, Bachem alluded to a desire to become head of a police
station or head of the local police, and he noted that police officers receive a
guaranteed retirement after 18 years of service. Bachem never went to the media
to expose the corruption in the police force, and after leaving Paraguay, his wife
and children were not harmed while his oldest daughter remained in the same
school. Because substantial evidence supports the IJ’s and BIA’s conclusion that
Bachem was not eligible for asylum, his withholding of removal fails as well.
Finally, Bachem argues that the IJ abused his discretion by not allowing him
to present his asylum claim in sufficient detail. He argues that the constant
interruptions by the judge forced him to omit details that would have bolstered his
credibility and thus denied him the right to a fair hearing. He asserts also that the
IJ abused his discretion in considering his personal knowledge of Miami and local
attorneys in his decision.
Review of constitutional challenges is de novo. Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003). Aliens present in the United States are
entitled to due process under the Fifth Amendment of the Constitution.
Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1311 (11th Cir. 2001). “In order
to establish a due process violation, an alien must show that he or she was deprived
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of liberty without due process of law, and that the asserted error caused him
substantial prejudice.” Garcia v. Att’y Gen., 329 F.3d 1217, 1222 (11th Cir. 2003)
(internal citations omitted). “Due process is satisfied only by a full and fair
hearing.” Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987). Due process
requires that all aliens be given notice and an opportunity to be heard in their
deportation proceedings. Fernandez-Bernal, 257 F.3d at 1310 n.8.
The INA provides that the IJ “shall . . . interrogate, examine, and
cross-examine the alien and any witnesses,” and “the alien shall have a reasonable
opportunity to examine the evidence against the alien, to present evidence on the
alien’s own behalf, and to cross-examine witnesses presented by the Government.”
INA § 240(b)(1), (4)(B), 8 U.S.C. § 1229a(b)(1), (b)(4)(B). Other Circuits have
concluded that “[t]he Immigration Judge has broad discretion to control the manner
of interrogation in order to ascertain the truth.” Iliev v. INS, 127 F.3d 638, 642
(7th Cir. 1997).
The BIA’s conclusion that the IJ did not deny Bachem due process by
forcing him to focus his testimony on his mistreatment was correct. Bachem had
time to describe his treatment in Paraguay and address all the situations he
described in his asylum application. The IJ essentially prompted Bachem to focus
his testimony on the dates when something happened to him and told him to omit
unnecessary details. Additionally, the IJ gave Bachem the opportunity to address
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instances where his testimony conflicted with other evidence. Requiring that
Bachem omit lengthy testimony about his co-workers, background, and history of
Paraguay did not violate Bachem’s right to due process.
As a final note, the IJ improperly used personal knowledge about Miami and
a local attorney to assess Bachem’s credibility. While Bachem did not have the
opportunity to confront these assumptions, their inclusion in the IJ’s decision did
not rise to the level of a due process violation. First, the improper finding related
to the timeliness of the application, and the BIA reversed the IJ on this point.
Second, it appears that Bachem’s credibility was compromised by his other
inconsistent or unbelievable testimony, as shown above.
PETITION DENIED.
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