Miguel Angel Marin, Yasmeli Rueda Marin v. Us Attorney General , 445 F. App'x 228 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15064 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 19, 2011
________________________ JOHN LEY
CLERK
Agency No. A094-888-294
MIGUEL ANGEL MARIN,
YASMELI RUEDA MARIN,
a.k.a. Jasmely Rueda,
llllllllllllllllllllllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 19, 2011)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Miguel Marin and his wife Yasmeli Marin seek review of the Board of
Immigration Appeals’ denial of their application for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture. The
Marins contend that the BIA’s adverse credibility determination was not supported
by the record.
I.
The Marins, natives and citizens of Venezuela, entered the United States on
March 27, 1998 with valid non-immigration visas. They remained in the United
States after their visas expired on September 25, 1998. Almost 10 years later, on
July 10, 2008, they filed an application for asylum, withholding of removal, and
CAT relief based on political opinion and membership in a particular social group.
In their application Miguel stated that in 1989 he began working for the
Judicial Technical Police in Venezuela investigating political corruption. He
wrote that during his investigation he discovered that Hugo Chavez planned on
assassinating then President Carlos Andres Perez in 1991 or 1992. When Chavez
came to power Miguel realized that he was in danger, and upon advice of friends,
he left the Judicial Technical Police in 1996. He went to work for a company
dealing with the maintenance and sales of fire extinguishers. In 1997, while
working for that company, he came to the United States to make purchases for that
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company, and then went back to Venezuela. Then, in 1998, because he feared
retribution from Chavez he decided to flee to the United States. He believed that
if he went back to Venezuela he would be arrested because he was on a “list” of
those people who were against Chavez.
During direct examination at the hearing in front of the Immigration Judge
Miguel stated that he started receiving threats from the “bridge regime” in 1996
and that he continued receiving them through 1998. He said that he received them
because he had belonged to the Judicial Technical Police, which he left in 1995.
He also claimed that his car was stolen and burned in the end of 1997, which at
first he thought was just a common crime, but he later received phone calls telling
him that the same thing would happen to his family. Although he reported the
stolen car to the police, he did not report the threats that went along with it
because he thought the police department might be corrupt. After that incident he
stopped receiving the threatening phone calls, but that event still caused him to
decide to flee to the United States. And in 1998 he came to the United States.
On cross examination Miguel repeatedly said that his car was stolen and
burned in 1995—two years before the 1997 date he gave during direct
examination. And he again said that he left the Judicial Technical Police in 1995.
When the government pointed out that he wrote in his application that he left it in
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1996, Miguel said that he made a mistake. The government asked why Miguel did
not include anything in his application about his car being stolen and burned, and
he responded by saying that perhaps he should have included it. The government
also asked Miguel if he had any proof that he had worked for the Judicial
Technical Police, and he responded that all those documents were in his stolen car
that was burned. When asked why he could not produce a single document
supporting his testimony, Miguel said: “I couldn’t get any. I knew that in 1998 he
was coming into power and those who had raised in arms against him weren’t
going – able to have any documents.”
The IJ denied the Marins’ application. He found Miguel’s testimony not to
be credible, pointing to specific parts of his testimony that were internally
inconsistent and that were inconsistent with their application. The Marins
appealed the IJ’s adverse credibility finding to the BIA.
The BIA also made an adverse credibility finding and dismissed the appeal.
It agreed with the IJ’s findings that Miguel was not credible and that he did not
corroborate his claims, stating:
The Immigration Judge found the respondent’s testimony inconsistent
as he gave different years for the incident in which his car was
burned—he indicated on direct examination that it was at the end of
1997 but when cross-examined stated that it happened in 1995. The
Immigration Judge found that this inconsistency went to the heart of the
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respondent’s claim as the burning of the car was the immediate cause of
the respondent’s departure from Venezuela. There was no explanation
given as to this inconsistency. Finally, the Immigration Judge indicated
that the respondent’s demeanor was not that of a person who had been
an undercover policeman as he was nervous and the evidence he gave
was scanty, undetailed, unspecific, and highly speculative. We agree
with the Immigration Judge . . . .
The Marins appealed the BIA’s adverse credibility finding.
II.
“Credibility determinations . . . are reviewed under the substantial evidence
test,” where this Court “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)
(quotation marks omitted). “[A] denial of asylum relief . . . can be supported
solely by an adverse credibility determination, especially if the alien fails to
produce corroborating evidence.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231
(11th Cir. 2006). Under the REAL ID Act of 2005, credibility determinations can
be based on “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 . . . and any inaccuracies or falsehoods in such statements . . .
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.” 8 U.S.C. § 1158(b)(1)(B)(iii). “If the [BIA] explicitly determines that the alien
lacks credibility, [it] must offer specific, cogent reasons for the finding.” Id. “The
burden then shifts to the alien to show that [the BIA’s] credibility decision was not
supported by ‘specific, cogent reasons’ or was not based on substantial evidence.”
Id. (quoting Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)).
Specific, cogent reasons supported the BIA’s adverse credibility
determination. As pointed out by the BIA, Miguel stated that the burning of his
car was what finally led him to flee Venezuela for the United states. However,
despite the importance of that event, he stated that it occurred in 1997, which
would be shortly before he came to the United States, and he also stated that it
occurred in 1995, which would be three years before he came to the United States.
And despite the importance of that event Miguel did not put it in the application.
And Miguel did not attempt to reconcile his inconsistent testimony at the hearing,
or in front of the BIA, or in his brief to this Court. Further, he could not provide
any corroborating evidence supporting his claims. The Marins did not meet their
burden of showing that the record compelled reversal of the adverse credibility
determination.
PETITION DENIED.
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