Raul Manuel Torres v. U.S. Atty. General , 299 F. App'x 934 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 7, 2008
No. 04-10745 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A70-571-306
RAUL MANUEL TORRES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 7, 2008)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Raul Torres, a native and citizen of Peru, through counsel, petitions this
Court for review of the Board of Immigration Appeal’s (“BIA”) order adopting and
affirming the Immigration Judge’s (“IJ”) decision that he failed to qualify for
asylum or withholding of removal. 8 U.S.C. §§ 1158, 1231.
On appeal, Torres argues that the IJ erred by basing his adverse credibility
finding on only minor inconsistencies. In addition, he argues that the IJ erred by
requiring Torres to establish country-wide persecution and the feasibility and
practicality of relocating in Peru. Finally, Torres argues that the IJ erred by
requiring him to show proof of his membership in a political party to support his
claim of persecution based upon imputed political opinion.
We review the decision of the BIA, except to the extent that it adopts the IJ's
decision. Nreka v. U.S. Attorney Gen., 408 F.3d 1361, 1368 (11th Cir. 2005).
Because the BIA in this case affirmed the IJ's decision without opinion, we review
the IJ's analysis as if it were the BIA's. Id. We review legal issues de novo,
Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001), and
“administrative fact findings under the highly deferential substantial evidence test,”
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). Under
the substantial evidence test, we must “review the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision.” Id. at 1027. Under this test, we must affirm the IJ’s decision if it is
“supported by reasonable, substantial, and probative evidence on the record
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considered as a whole.” Id. (citation and internal punctuation omitted). To
reverse the BIA’s factual finding, we not only must conclude that the record
supports such a conclusion, but compels it. Id.
“The testimony of the applicant, if credible, may be sufficient to sustain the
burden of proof without corroboration.” 8 C.F.R. §§ 208.13(a), 208.16(b).
“Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments.”
Ruiz v. U.S. Atty. Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). We have held that
the IJ must “determine credibility, and [we will] not substitute [our] judgment for
that of the IJ with respect to credibility findings.” Yang v. U.S. Att’y Gen., 418
F.3d 1198, 1201 (11th Cir. 2005). Thus, we will defer to the IJ’s credibility
finding as we would any factual finding, unless the evidence compels us to do
otherwise. Id. That said, “the IJ must offer specific, cogent reasons for an adverse
credibility finding.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005).
In addition, the IJ “must make clean determinations of credibility.” Yang,
418 F.3d at 1201 (holding that the IJ’s references to Yang’s claim as a “ridiculous
fabrication” and Yang’s testimony as “extremely inconsistent” did not constitute 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
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supported by ‘specific, cogent reasons’ or was not based on substantial evidence.”
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. “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.” Ruiz, 440 F.3d at 1255.
“[T]he weaker the applicant's testimony, . . . the greater the need for corroborative
evidence." Yang, 418 F.3d at 1201. “[I]f the [IJ] does not believe the applicant or
does not know what to believe, the applicant's failure to corroborate his testimony
can be fatal to his asylum application.” Forgue, 401 F.3d at 1287. If the factfinder
determines that corroborating evidence is available, we cannot reverse such finding
unless compelled to do so. 8 U.S.C. § 1252(b)(4).
“An alien who arrives in or is present in the United States may apply for
asylum, which the Attorney General has discretion to grant if the alien meets the
INA’s definition of a ‘refugee.’” Sepulveda v. U.S. Atty. Gen., 401 F.3d
1226, 1230 (11th Cir. 2005) (citing INA § 208(a)(1), (b)(1), 8 U.S.C. § 1158(a)(1),
(b)(1)). In pertinent part, INA § 101 defines a refugee as
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any person who is outside any country of such person’s nationality . . .
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 . . .
political opinion . . . .
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). A refugee seeking asylum
“carries the burden of proving [her] statutory ‘refugee’ status and thereby
establishing asylum eligibility.” Id. (citing Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001)).
“To establish asylum eligibility based on political opinion or any other
protected ground, the alien must, with credible evidence, establish (1) past
persecution on account of her political opinion or any other protected ground, or
(2) a ‘well-founded fear’ that her political opinion or any other protected ground
will cause future persecution.” Id. at 1230-31. We have held that:
To establish asylum based on past persecution, the applicant must
prove (1) that she was persecuted, and (2) that the persecution was on
account of a protected ground. To establish eligibility for asylum
based on a well-founded fear of future persecution, the applicant must
prove (1) a ‘subjectively genuine and objectively reasonable’ fear of
persecution that is (2) on account of a protected ground.
Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (internal citation
omitted). Nevertheless, an alien need not demonstrate that he would, in the future,
be singled out for persecution if he can demonstrate, among other things, that
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“there is a pattern or practice of persecution of a group of persons similarly
situated” to him on the basis of a protected ground. 8 C.F.R. § 208.13(b)(2)(iii).
“To qualify for withholding of removal, [petitioner] must have established
that it is more likely than not that her life or freedom would be threatened on
account of a statutorily protected factor if returned to [the country of removal].”
Silva, 448 F.3d at 1243 (citing INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)). “Where
an applicant is unable to meet the ‘well-founded fear’ standard for asylum, [s]he is
generally precluded from qualifying for either asylum or withholding of
[removal].” Id. (brackets in original) (quoting Al Najjar, 257 F.3d at 1292-93).
While the INA does not specifically define persecution, this Court has
acknowledged 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, 401 F.3d at 1231
(citation omitted) (brackets in original). “Not all exceptional treatment is
persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). We have
held that the accumulation of two beatings, threatening phone calls, and being
kidnaped for 18 days amounted to past persecution. Ruiz v. Gonzales, 479 F.3d
762, 766 (11th Cir. 2007).
Upon review of the record and the parties’ briefs, we discern no reversible
error. In this case, the IJ provided specific and cogent reasons for his adverse
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credibility determination, which was supported by a number of inconsistencies in
Torres’s initial application, asylum interview, and testimony. Thus, substantial
evidence supports the denial of Torres’s claim for asylum. Because Torres has not
met his burden of proof with respect to the asylum claim, he also has not met his
burden with respect to his claim for withholding of removal under the INA.
Because Torres testimony was incredible and never established past persecution,
the IJ correctly never shifted the burden to the government to establish country-
wide persecution or the feasibility and practicality of relocation in Peru. Finally,
there is nothing in the record to substantiate Torres’s claim that the IJ required
Torres to show proof of his membership in a political party to sustain persecution
based upon imputed political opinion. Accordingly, we deny the petition.
PETITION DENIED.
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