The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 16, 2006
No. 05-13002 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A95-230-339 & A95-230-340
GERMAN BOHORQUEZ,
MARGARITA SANCHEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(March 16, 2006)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
German Bohorquez and Margarita Sanchez petition for review of the Board
of Immigrations Appeals’s (“BIA”) decision affirming the Immigration Judge’s
(“IJ”) order finding them removable and denying their application for asylum and
withholding of removal under both the Immigration and Nationality Act (“INA”)
and the United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment.1 Bohorquez and Sanchez argue that (1) the
BIA erred in affirming the IJ’s adverse credibility determination because
Bohorquez had presented substantial evidence to support his asylum and
withholding of removal claim; and (2) the BIA erred in denying their applications
for asylum and withholding of removal because they had provided evidence that
would compel a reasonable factfinder to conclude that Bohorquez had established
past persecution or a well-founded fear of future persecution. Specifically,
petitioners argue that Bohorquez suffered past persecution and has a well-founded
fear of future persecution because of threatening phone calls, and an attempted
abduction by members of FARC.
DISCUSSION
An alien who arrives in or is present in the United States may apply for
asylum. To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily listed factor, or
1
Petitioners make no argument regarding relief under the United Nations Convention
and have thus abandoned this issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2
(11th Cir. 2005).
2
(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 v. Ashcroft, 257 F.3d 1262,
1287 (11th Cir. 2001). “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 quotation marks and citation omitted). An asylum applicant may
not show merely that he has a political opinion, but must show that he was
persecuted because of that opinion. INS v. Elias-Zacarias, 502 U.S. 478, 483
(1992).
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. Att’y
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (citation omitted). In Sepulveda, we
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.
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
3
IJ finds that the alien could avoid a future threat by relocating to another part of his
country and it is reasonable to do so, he cannot demonstrate a well-founded fear of
persecution. See 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. 8 U.S.C.
§ 1231(b)(3). “An alien bears the burden of demonstrating that he more-likely-
than-not would be persecuted or tortured upon his return to the country in
question.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
An alien’s testimony, if credible, may be sufficient to sustain the burden of
proof for asylum or withholding of removal without corroboration. 8 C.F.R. §§
208.13(a), 208.16(b). “Conversely, an adverse credibility determination alone may
be sufficient to support the denial of an asylum application.” Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). “[T]he weaker the applicant’s
testimony . . . the greater the need for corroborative evidence.” Yang v. U.S. Att’y
Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). When the IJ enumerates an
applicant’s inconsistencies and is supported by the record, we “may not substitute
our judgment for that of the IJ with respect to its credibility findings.”
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).
We review the IJ’s decision as if it were the BIA’s because the BIA
4
expressly adopted the IJ’s findings. Al Najjar, 257 F.3d at 1284. To the extent
that the IJ’s decision was based on a legal determination, our review is de novo.
Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). The IJ’s factual
determinations are reviewed under the substantial-evidence test, and we “must
affirm the [IJ’s] decision if it is ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Al Najjar, 257 F.3d at
1284 (citation omitted).
We conclude that the IJ’s adverse credibility determination was supported
by substantial evidence in this case. Bohorquez first testified that the FARC tried
to abduct him on June 6, 2000 and that he was shot at while driving on the
highway eight to ten months later. He later testified that the attempted kidnaping
occurred on June 6, 2001 and that this was the only attack against him. Bohorquez
also stated that FARC began threatening him in 1997, but later admitted that the
threats did not begin until 2000. Additionally, he stated in his application that he
received a letter declaring him a military target before his abduction attempt, but he
did not discuss that letter in his testimony. However, he did testify that he received
a letter two days after the attempt.
While nervousness could explain confusion as to the exact date, as
Bohorquez and Sanchez argue, or even a minor error in communicating the year of
the event, Bohorquez demonstrated more than mere nervousness as he confused
5
both the number of personal encounters with FARC and what occurred during the
encounters. There is a material difference between being consistently threatened
from 1997 and being threatened since 2000. These inconsistencies cut to the heart
of his claim as they concern the frequency, severity, and nature of the threats
Bohorquez received. Accordingly, the IJ’s finding that Bohorquez was not
credible was supported by substantial evidence, and Bohorquez presented no
evidence that compels a reversal of this determination. However, as the IJ based
his ultimate conclusion on Bohorquez’s lack of evidence, the adverse credibility
finding was not determinative.
We also find that substantial evidence supports the IJ’s decision that
Bohorquez did not suffer past persecution on account of a protected ground. The
IJ found that Bohorquez’s testimony was not credible, and, as explained above, this
finding was supported by substantial evidence. Further, the documentary evidence
that the petitioners provided is not compelling. Petitioners provided numerous
letters from his family that were vague as to what specific events constituted
Bohorquez’s persecution. Petitioners also provided a copy of a letter purportedly
from FARC declaring him a military target but, even assuming the letter is
genuine, it does not clearly state that the FARC sought to punish Bohorquez for his
political opinion. As the petitioners provided no compelling testimony or
documentation of Bohorquez’s persecution, petitioners’ past persecution claim
fails.
6
With regard to a well-founded fear of future persecution, petitioners have
pointed to no credible evidence that compels a finding that he would be persecuted
by the FARC if they were returned to Colombia. Further, Bohorquez’s uncle
remains in Colombia without sustaining any harm from FARC members. Such
evidence shows that Bohorquez’s fear is not objectively reasonable and thus
undermines any fear of future persecution.
Finally, petitioners’ withholding of removal claims fail, as they did not
establish eligibility for asylum, which carries a lower burden of proof. Al Najjar,
257 F.3d at 1292-93 (noting that because the evidentiary burden for withholding of
removal is greater than that imposed for asylum, if an alien has not met the well-
founded fear standard for asylum, he generally cannot meet the standard for
withholding of removal).
PETITION DENIED.
7