holding that an IJ’s statement that an applicant’s testimony was “extremely inconsistent” was not an express, or “clean,” credibility finding
How later courts described this case
- holding that an IJ’s statement that an applicant’s testimony was “extremely inconsistent” was not an express, or “clean,” credibility finding
Written by the judges who cited it.
The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 18, 2008
No. 08-12058 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A98-614-322
A98-614-323
EDDY LEONEL GUERRA CABRERA,
LESLIE MAGALY ESTRADA ROMERO,
BRENDA LISETH GUERRA ARDON,
JOSELIN YAZMIN GUERRA ESTRADA,
EDDY LEONEL GUERRA ESTRADA,
WILLIAM GUSTAVO ESTRADA ARDON,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 18, 2008)
Before TJOFLAT, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Eddy Guerra Cabrera, his wife, Leslie Estrada Romero, and his children,
William Guerra Ardon, Brenda Guerra Ardon, Joselin Guerra Estrada, and Eddy
Guerra Estrada (“Petitioners”), natives and citizens of Guatemala, appeal the order
by the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s
(“IJ’s”) order of removal and denial of asylum and withholding of removal under
the Immigration and Nationality Act (“INA”). For the reasons set forth below, we
deny the petition.
I.
The Petitioners claim that they were persecuted by Guatemalan police
officers on account of their imputed political opinions. Specifically, the Petitioners
allege that they filed complaints with the police concerning ill-treatment by police
officers and that these police officers interpreted the complaints as contrary
political opinions and persecuted them.
Specifically, in their application, the Petitioners alleged that, in 2000, Eddy
Guerra Cabrera’s business was robbed and, several months after that incident, four
people assaulted and attempted to kill Leslie Estrada Romero. Many months
thereafter, the Petitioners began receiving threatening telephone calls. One of the
callers identified himself as “Fox,” indicated that he “had the Police in [his]
control,” and threatened to kill the Petitioners. In January 2004, two people
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identifying themselves as police officers broke into the Petitioners’ house and
kidnaped Leslie Estrada Romero, ultimately raping her and breaking her nose
before she managed to escape. Eddy Guerra Cabrera learned from friends that his
ex-wife, who was related to several police and army officers and who was dating a
man called “Fox” who also had ties to the police and army, was “involved in” the
attack on Leslie Estrada Romero. The Petitioners fled Guatemala. Later, they
learned that the police officers who had kidnaped Leslie Estrada Romero had
visited their former home looking for them several times.
The Petitioners submitted: (1) an article detailing police officer abuses
against women, including sexual assault; (2) articles explaining that a band of
police officers that had been robbing civilians had been captured; (3) a certificate
signed by a doctor on January 12, 2003, to the effect that Leslie Estrada Romero
had been treated for a broken nose at a hospital; (4) a certificate signed by a
gynecologist who treated Leslie Estrada Romero at a hospital and found that she
had “soft abdomen with pain . . . [and] inflammatory changes in vaginal walls”;
and (5) the U.S. Department of State Guatemala Country Report on Human Rights
Practices for 2005, stating that police officers were suspected of being involved in
approximately 24 killings, 11 kidnapings, and several rapes, sometimes with
impunity, and that non-state actors with links to organized crime and gangs had
committed hundreds of killings and other crimes.
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At their merits hearing, Eddy Guerra Cabrera testified that the Petitioners
received threatening telephone calls. The “boss” of the people who made these
calls was called “Fox.” The Petitioners filed a complaint about these calls with the
police. In 1999, the Petitioners received a telephone call from a person in Fox’s
group who stated that “something bad was going to happen to one of [Eddy
Guerra Cabrera’s] family members.” Later, Eddy Guerra Cabrera’s father was
murdered. Eddy Guerra Cabrera believed that his father was murdered because of
the aforementioned complaints. The police never prosecuted anyone for this
murder. In 2000 or 2001, men identifying themselves as police officers robbed the
Petitioner’s family jewelry business and assaulted Leslie Estrada Romero. On
January 12, 2004, armed men identifying themselves as police officers broke into
his house, kidnaped Leslie Estrada Romero, and ultimately broke the nose of and
raped Leslie Estrada Romero. The armed men threatened to kill Leslie Estrada
Romero also, but she managed to escape. Later that day, the Petitioners filed a
complaint with the police and arranged to flee Guatemala. The police later
informed the Petitioners that they could not find the men who had kidnaped and
raped Leslie Estrada Romero and that the family should “hide.” Eddy Guerra
Cabrera believed that his ex-wife was involved in the persecution of his family.
They had not ended their relationship on good terms and she had threatened him
several times. She had several family members who were police or army officers.
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Indeed, on cross-examination, Eddy Guerra Cabrera admitted that, because of the
problems he had with his ex-wife and their subsequent divorce, his ex-wife had
“[gone] after [him] through friends” and that, had they not had these problems or
gone through a divorce, the Petitioners likely would not have been persecuted.
The IJ denied the Petitioners’ application. The IJ reasoned that the
Petitioners “suffer[ed] from credibility issues” because their application lacked
corroboration and many of their claims seemed impossible. However, giving the
Petitioners the benefit of the doubt and assuming their claims were credible, they
nevertheless had not established a nexus between their persecution and an imputed
political opinion. Nothing in the record established that the police imputed a
political opinion from the fact of the Petitioners filing complaints with the police
regarding ill-treatment by the police. Rather, it appeared that the Petitioners’
problems stemmed from the fact that Eddy Guerra Cabrera’s ex-wife had direct
links to the police and army. Because the Petitioners could not satisfy their burden
or proof for asylum relief, it followed that they could not satisfy the more-stringent
burden of proof for withholding of removal. Likewise, because the record
demonstrated that any torture inflicted on the Petitioners was done at the hands of
corrupt police officers, and that the government was trying to control these corrupt
police officers, the Petitioners could not satisfy their burden for CAT relief.
On appeal, the BIA affirmed the IJ’s denial of relief. The BIA reasoned that
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it agreed with the IJ that the Petitioners had failed to demonstrate eligibility for
asylum, as evidence that they filed a complaint with the police regarding other
police was insufficient to establish that what happened to them happened because
of their imputed political opinions. It also agreed with the IJ that the Petitioners
generally had failed to provide evidence corroborating Eddy Guerra Cabrera’s
account of events. Because the Petitioners could not satisfy their burden regarding
asylum, they also could not satisfy their more-stringent burden regarding
withholding of removal. Because the Petitioners did not challenge the IJ’s denial
of CAT relief, the BIA would not address that matter.
II.
When the BIA affirms the IJ’s decision, but issues a separate opinion, we
review the BIA’s opinion “except to the extent that [the BIA] expressly adopts the
IJ’s opinion.” Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.
2004). When reviewing the BIA’s opinion, we review legal determinations de
novo and factual determinations under the “substantial evidence test.” See
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004); Al Najjar v.
Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001). Under this test, which is
“highly deferential,” we “must affirm the BIA’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 1283-84 (quotation omitted). In order to reverse a
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finding of fact, “we must find that the record not only supports reversal, but
compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
When an IJ does not expressly find a petitioner incredible, the petitioner’s
testimony must be accepted, even without corroborating evidence. See Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (holding that an IJ’s
statement that an applicant’s testimony was “extremely inconsistent” was not an
express, or “clean,” credibility finding). We will not consider arguments presented
before the IJ or BIA but not discussed on appeal. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1282 n.2 (11th Cir. 2005) (explaining that “[w]hen an appellant
fails to offer argument on an issue, that issue is abandoned”).
An alien who arrives in or is present in the United States may apply for, inter
alia, asylum and withholding of removal. INA §§ 208(a)(1), 241, 8 U.S.C.
§§ 1158(a)(1), 1231(b)(3)(A), 8 C.F.R. § 208.16(c). To qualify for asylum, the
alien must prove that he is a refugee. Al Najjar, 257 F.3d at 1284 (citing 8 U.S.C.
§ 1101(a)(42)(A)). A refugee is defined in the INA 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.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). This list of protected grounds
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also encompasses an “imputed political opinion,” or a political opinion falsely
attributed to the alien by his persecutors. Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 438 (11th Cir. 2004).
To establish refugee status, the alien must establish, through specific,
detailed facts, (1) his past persecution on account of a protected ground, or (2) his
“well-founded fear” that he will be persecuted in the future on account of a
protected ground. 8 C.F.R. § 208.13(a), (b); see Al Najjar, 257 F.3d at 1287.
Regarding the nexus element of this standard, the applicant must demonstrate that
one of the enumerated grounds “was or will be at least one central reason for
persecuting” him or her. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).
To qualify for withholding of removal, the alien similarly must show that it
is more likely than not that his life or freedom would be threatened on account of
race, religion, nationality, membership in a particular social group, or political
opinion. Mendoza, 327 F.3d at 1287 (citing 8 U.S.C. § 1231(b)(3)(A)). Because
the more-likely-than-not standard that applies to withholding of removal claims is
more stringent than the well-founded-fear standard that applies to asylum claims,
ineligibility for asylum generally precludes withholding of removal eligibility. Al
Najjar, 257 F.3d at 1292-93.
III.
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Regarding asylum, substantial evidence supports the BIA’s denial of relief.
See Reyes-Sanchez, 369 F.3d at 1242; D-Muhumed, 388 F.3d at 817. As an initial
matter, because the BIA’s finding regarding the dearth of corroborative evidence of
the Petitioners’ claims was not the sort of clean credibility finding we require, we
accept as true the evidence offered by the Petitioners, namely Eddy Guerra
Cabrera’s testimony. See Yang, 418 F.3d at 1201. Even assuming that Eddy
Guerra Cabrera’s claims are true, however, the Petitioners have not satisfied the
nexus element of the asylum standard. See 8 C.F.R. § 208.13(a), (b); Al Najjar,
257 F.3d at 1287.
Nothing in the record compels a finding that the Petitioners were persecuted
on account on their imputed political opinions. See Mendoza, 327 F.3d at 1287.
The Petitioners did not establish that the police officers in question interpreted the
complaints, filed by the Petitioners after receiving threatening telephone calls, as
statements against the Guatemalan police and, therefore, robbed, assaulted, raped,
or threatened to kill any of the Petitioners. Indeed, in their application, the
Petitioners did not clearly establish that they were persecuted after filing
complaints. Rather, the Petitioners at most established that Eddy Guerra Cabrera’s
ex-wife enlisted the aid of her “lover” and her family members, who had ties to, or
were, police and army officers, to persecute the Petitioners because she was angry
with Eddy Guerra Cabrera. Indeed, Eddy Guerra Cabrera admitted at the merits
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hearing that, but for the problems he experienced with his ex-wife, the Petitioners
would not have been persecuted. Eddy Guerra Cabrera did not testify that his
problems with his ex-wife had anything to do with his political opinion, imputed or
otherwise. Therefore, the Petitioners failed to establish that they were persecuted
on account of a specified ground and thereby failed to establish asylum eligibility.
See 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287.
Regarding withholding of removal, because the Petitioners failed to satisfy
their burden for proving asylum eligibility, they necessarily fail to meet their more-
stringent burden for proving withholding-of-removal eligibility. See Al Najjar,
257 F.3d at 1292-93. Regarding relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), the BIA found that the Petitioners had abandoned any claim that the IJ
erred in denying CAT relief. On appeal, the Petitioners do not reference this
finding. Therefore, the Petitioners abandoned such an argument. See Sepulveda,
401 F.3d at 1228 n.2. Accordingly, we deny the petition.
PETITION DENIED.
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