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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14168
Non-Argument Calendar
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Agency No. A208-133-355
MAGDALENA JUAN-PEDRO,
SANDRA YULISSA TOMAS-JUAN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 28, 2020)
Before LAGOA, BRASHER and MARCUS, Circuit Judges.
PER CURIAM:
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Magdalena Juan-Pedro, 1 a native and citizen of Guatemala who speaks
Konjobal, seeks review of the Board of Immigration Appeals (“BIA”)’s order,
affirming the Immigration Judge (“IJ”)’s denial of her application for asylum,
withholding of removal, and Convention Against Torture (“CAT”) relief. She
argues that: (1) the BIA violated her due process rights by affirming the IJ’s adverse-
credibility finding, which was based on her unresponsive or confused answers that
she says were caused by the interpreter’s mistranslations; (2) the BIA erred in
denying her application because her testimony was not inconsistent or contradictory
and she clarified her answers when asked. After careful review, we deny the petition.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion. Insofar as the Board adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th
Cir. 2001) (citations omitted). In this case, we review both the BIA and IJ decisions
because the BIA agreed with the IJ’s reasoning and factual findings. See
id.
We review constitutional challenges de novo. Ali v. U.S. Att’y Gen.,
443
F.3d 804, 808 (11th Cir. 2006). We review factual findings, including credibility
determinations, under the substantial-evidence test, in which an agency decision
“can be reversed only if the evidence ‘compels’ a reasonable fact finder to find
1
Juan-Pedro is the lead respondent in this case, and the other respondent is her minor
daughter, whose claims rest upon those of her mother. See 8 U.S.C. § 1158(b)(3)(A)).
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otherwise.” Chen v. U.S. Att’y Gen.,
463 F.3d 1228, 1230-31 (11th Cir. 2006)
(quotations omitted). We must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a whole.
D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 818 (11th Cir. 2004).
First, we are unpersuaded by Juan-Pedro’s claim that the BIA violated her due
process rights by affirming the IJ’s adverse-credibility finding. We’ve held “that the
Fifth Amendment entitles petitioners in removal proceedings to due process of the
law.” Lapaix v. U.S. Att’y Gen.,
605 F.3d 1138, 1143 (11th Cir. 2010). A petitioner
alleging a due process violation “must show that she was deprived of liberty without
due process of law and that the purported errors caused her substantial prejudice,”
which means that, “in the absence of the alleged violations, the outcome of the
proceeding would have been different.”
Id. “Due process is satisfied only by a full
and fair hearing.” Ibrahim v. INS,
821 F.2d 1547, 1550 (11th Cir.1987).
The BIA has held that applicants “must be able to participate meaningfully in
certain phases of their own hearing,” and thus, if the applicant cannot speak English,
“[t]he presence of a competent interpreter is important to the fundamental fairness
of a hearing.” Matter of Tomas, 19 I&N Dec. 464, 465 (BIA 1987). In Matter of
D-R-, the respondent challenged the competency of the interpreter at his removal
proceedings, presenting examples of confusion in the transcript and quotes of
imperfect English, which he assumed were based on mistranslations. 25 I&N Dec.
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445, 461 (BIA 2011). The BIA disagreed, finding that he had “not cited specific
examples of material testimony that was not translated or was translated incorrectly,”
nor had he “shown how a better translation would have made any difference in the
hearing’s outcome.”
Id. at 461-62 (quotations omitted).
Here, Juan-Pedro has not shown that any translation errors violated her due
process rights. First, she has failed to show that she was deprived of a full and fair
hearing. As the record reflects, the IJ insured the presence of a Konjobal interpreter,
she confirmed several times that Konjobal was Juan-Pedro’s best language and that
she understood the interpreter, and the IJ repeated his questions when it was pointed
out that Juan-Pedro may not have understood the translation. There was only one
instance, on cross-examination, when no clarification was given after Juan-Pedro
indicated that she did not understand a question, but her counsel did not object to
this lack of clarification. Moreover, as in D-R-, Juan-Pedro has not cited to any
specific examples of material testimony that was translated incorrectly, nor has she
made any argument regarding how a better translation would have made any
difference in the hearing’s outcome, especially given the BIA’s alternative finding
that she was ineligible for relief even if her testimony was credible. See 25 I&N
Dec. at 461. On this record, she has failed to establish that she was deprived of
liberty, or that the purported translation errors caused her substantial prejudice.
Accordingly, we deny her petition concerning her due process claims.
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Nor do we find merit to Juan-Pedro’s argument that the BIA erred in denying
her application for asylum, withholding of removal, and CAT relief. An applicant
for asylum must meet the definition of a refugee found in the Immigration and
Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1). A “refugee” is defined 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.
Id. § 1101(a)(42)(A). The burden is on the applicant to establish her eligibility for
asylum by offering “credible, direct, and specific evidence in the record.” Forgue v.
U.S. Att’y Gen.,
401 F.3d 1282, 1287 (11th Cir. 2005) (quotations omitted). An
applicant’s testimony alone, if found credible, is sufficient to establish eligibility.
Id. Conversely, if an applicant produces no evidence other than her testimony, “an
adverse credibility determination is alone sufficient to support the denial of an
asylum application.”
Id.
An “IJ must offer specific, cogent reasons for an adverse credibility finding,”
and once it does so, “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.”
Id. If the applicant fails to do so, we “may not substitute
[our] judgment for that of the BIA with respect to credibility findings.” D-
Muhumed, 388 F.3d at 818.
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Under 8 U.S.C. § 1158, the trier of fact may properly base an adverse-
credibility determination on such factors as:
the demeanor, candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s account, the
consistency between the applicant's or witness's written and oral
statements . . . , the internal consistency of each such statement, the
consistency of such statements with other evidence of record (including
the reports of the Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii). As for findings about an applicant’s demeanor, we
have held that “[t]he IJ alone is positioned to make determinations about demeanor
-- by observing the alien and assessing his or her tone and appearance -- and in that
sense is uniquely qualified to decide whether an alien’s testimony has about it the
ring of truth.’” Todorovic v. U.S. Att’y Gen.,
621 F.3d 1318, 1324 (11th Cir. 2010)
(quotations omitted). Consequently, we “afford great deference to an IJ’s
assessment of ‘demeanor,’” and thus, to the extent that a credibility determination
involves demeanor, it is largely “unreviewable.”
Id. at 1325 (quotations omitted).
To establish eligibility for withholding of removal, the petitioner must show
that, if he returns to his home country, it is more likely than not that he will be
persecuted or tortured on account of race, religion, nationality, membership in a
particular social group, or political opinion. Sepulveda v. U.S. Att’y Gen.,
401 F.3d
1226, 1232 (11th Cir. 2005). This standard is significantly higher than the asylum
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standard, and a petitioner who cannot meet the asylum standard usually cannot meet
the standard for withholding of removal. Al
Najjar, 257 F.3d at 1292-93.
Under the CAT, the burden of proof is on the petitioner to establish that it is
more likely than not that he would be tortured if removed to the proposed country of
removal. 8 C.F.R. § 208.16(c)(2). Moreover, to obtain CAT relief, the petitioner
must demonstrate that the torture would be inflicted by the government or that the
government would acquiesce in the torture by being aware of it and failing to
intervene. Reyes-Sanchez v. U.S. Att’y Gen.,
369 F.3d 1239, 1242 (11th Cir. 2004).
The burden of proof for an applicant seeking CAT relief, like that for an applicant
seeking withholding of removal under the statute, is higher than the burden imposed
on an asylum applicant. Al Najjar,
257 F.3d 1262, 1303 (11th Cir. 2001).
Here, the record reveals that substantial evidence supports the IJ’s adverse-
credibility findings and that specific, cogent reasons were provided for its findings -
- that Juan-Pedro’s testimony was internally inconsistent and also inconsistent with
the documentary evidence. The IJ’s stated reasons included that: (1) Juan-Pedro said
that she did not tell anyone about the abuse she had sustained from the hand of her
former partner, Luis Tomas Francisco, then that she told her mother, and then that
she actually did not tell her mother; (2) she offered conflicting dates about when she
left Francisco; and (3) she said that she reported Francisco to the police, while Juan-
Pedro’s friend, Irma Andres, wrote in her letter that Juan-Pedro never told the police
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because she feared retaliation. Further, the IJ found that Juan-Pedro had an
untruthful and unresponsive demeanor, which he alone was in a position to find, and
that she appeared to be “throwing answers at the person asking the question.” On
this record, we are compelled to conclude that substantial evidence supports the
BIA’s conclusion that Juan-Pedro failed to show that she had a well-founded fear of
persecution. Thus, we deny her petition as to her asylum and withholding of removal
claims. Moreover, for the same reasons, substantial evidence supports the BIA’s
conclusion that Juan-Pedro failed to establish that she would more likely than not be
tortured if she returned to Guatemala. Accordingly, we also deny her petition as to
her CAT claim.
PETITION DENIED.
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