Barajas v. Gonzales , 204 F. App'x 391 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 31, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 05-60148
_______________________
JUAN CARLOS BARAJAS
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96-278-926
Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
EDITH H. JONES, Chief Judge:*
Juan Carlos Barajas, a Colombian citizen, was ordered
removed from the United States after an immigration judge (“IJ”)
denied his application for asylum and withholding of removal
because of an adverse credibility determination. The Board of
Immigration Appeals affirmed in a per curiam order. Since the IJ’s
credibility determination is supported by substantial evidence, we
DENY the petition for review.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I. BACKGROUND
Barajas is a native and citizen of Colombia. He was
fifteen years old at the time of the proceedings under review by
this court. In July 2002, he entered this country lawfully as a
non-immigrant, but became removable for overstaying his visa. On
March 26, 2003, the Immigration and Naturalization Service charged
Barajas with removability under Section 237(a)(1)(B) of the
Immigration and Nationality Act. Barajas conceded removability,
but filed an application for asylum and withholding of removal
based on alleged persecution.
In his application, Barajas claimed he was in danger of
death or harm at the hands of the National Liberation Army (“ELN”),
a Colombian guerilla group, because of his sister’s and mother’s
activities at the Instituto Colombo Americano, which is viewed by
the ELN as an example of unwanted American involvement in Colombia.
As a result of ELN threats, Barajas’s sister, a teacher at the
institute, was granted asylum in 2001.
Barajas reported that while they were still living in
Colombia, his mother had received threatening phone calls from the
ELN. Additionally, he stated that in 2002, while he was waiting
for a school bus, a man approached him and said they had access to
him. In fear of being kidnapped, he hid for the rest of the day
until his mother found him in a storage area. He then testified
that shortly after the bus incident, he and his mother were leaving
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the dentist’s office when a man approached them, began beating him,
and stole his mother’s purse. Later that night they received a
phone call from the ELN telling them that the incident was only a
warning. His mother and sister also testified about the incident,
but their testimony differed from Barajas’s. As a result of the
inconsistencies, the IJ determined that the testimony appeared
rehearsed and was not credible, and he denied the application for
asylum on August 4, 2003. The Board of Immigration Appeals
affirmed in a per curiam order on February 3, 2005. Barajas now
petitions for review.
II. DISCUSSION
The Attorney General may grant asylum to aliens who
qualify as refugees. 8 U.S.C. § 1158(a). A refugee is someone who
is unable or unwilling to return to his or her 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). To be
eligible for withholding of deportation, an alien must demonstrate
a “clear probability” of persecution upon return to his home
country. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).
This court reviews the denial of asylum under Section 242
of the Immigration and Nationality Act, 8 U.S.C. § 1252. We will
uphold the factual finding that an alien is not eligible for asylum
if the finding is supported by substantial evidence. Zhang v.
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Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Reversal is proper
only if a different conclusion is compelled by the evidence. Id.If an adverse determination is supported by specific and cogent
reasons derived from the record, it will not be upset. Id.The petitioner has the burden to “show that the evidence
he presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution.” INS v. Elias-
Zacarias, 502 U.S. 478, 483-84, 112 S. Ct. 812, 817 (1992). The
factfinder’s determinations as to a witness’s credibility “are
given great deference” because “[t]he factfinder has the duty to
judge the credibility of the witnesses and to make findings
accordingly.” Efe v. Ashcroft, 293 F.3d 905, 905 (5th Cir. 2002).
Barajas argues that he met his burden of proof to
establish eligibility for asylum, contending that the IJ’s
credibility determinations were not reasonable in light of the
evidence. He argues that a different result was compelled.
The IJ determined that the testimony of Barajas and his
mother regarding threats of persecution to Barajas was not
credible. The IJ noted that the application for asylum was
somewhat vague, and when the petitioner was examined on the details
of the incident, irreconcilable discrepancies began to appear
between his and his mother’s testimony. For example, the testimony
differed on the issues of where the incident occurred and whether
they took a taxi home afterwards or before. The witnesses also
could not agree on how they got to the hospital after the incident.
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The judge determined that the testimony appeared rehearsed, given
the vague, general description and lack of cogency on the details.
The IJ gave both witnesses an opportunity to clear up the
discrepancies, but the only explanation given was that Barajas was
confused and depressed about the incident, which had occurred less
than a year earlier, and thus could not remember.
Barajas contends that, as other circuits have held, minor
inconsistencies that do not go to the heart of the matter should
not render a petitioner ineligible for asylum. See Sylla v. INS,
388 F.3d 924, 926 (6th Cir. 2004); Georgis v. Ashcroft, 328 F.3d
962, 967-70 (7th Cir. 2003); Wang v. Ashcroft, 341 F.3d 1015, 1021-
22 (9th Cir. 2003); see also Caushi v. Atty. Gen. of U.S., 436 F.3d
220, 226 n.4 (3d Cir. 2006). This court has not yet ruled directly
on whether minor inconsistencies in asylum testimony can justify
the denial of relief, but we decline to do so here. As Barajas and
his mother could not agree on even the basic facts of the critical
incident, the IJ’s finding would be upheld under either our current
standard or the strengthened standard used by some other circuits.
The IJ’s decision was thus based on “specific and cogent reasons
derived from the record,” and must be upheld. Zhang, 432 F.3d at
344.
CONCLUSION
For these reasons, the petition for review of the
decision of the BIA is DENIED.
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