Diaz-Garcia v. Holder

United States Court of Appeals
For the First Circuit

No. 09-1681

ALEXANDER DÍAZ-GARCÍA,

Petitioner,

v.

ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.

Robert M. Warren, on brief for petitioner.
Aaron R. Petty, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Tony West,
Assistant Attorney General, Civil Division, and Christopher C.
Fuller, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.

June 25, 2010
 TORRUELLA, Circuit Judge. Petitioner Alexander Díaz-

García ("Díaz"), a native and citizen of Colombia, seeks review of

an agency decision denying his applications for asylum under

Section 208 of the Immigration and Nationality Act (the "Act"), and

for withholding of removal under Section 241(b)(3) of the Act and

the Convention Against Torture ("CAT"). Díaz, a former teacher and

union leader, alleged that he was persecuted by the Revolutionary

Armed Forces of Colombia (known by its Spanish-language acronym,

"FARC") on account of his union activism in Colombia, and that he

fears future persecution if he is forced to return. The

Immigration Judge ("IJ") found Díaz's testimony regarding these

allegations not credible, and denied the applications. The Board

of Immigration affirmed without opinion. After careful

consideration, we deny the petition.

I. Background

A. Díaz's Testimony1

1. Early Activism

Díaz was born into a large family in Cali, Colombia in

1967. In the 1990s, two of his nine brothers were murdered by

Colombian guerillas. Jhony Díaz-García, an older brother, was a

prominent businessman killed in 1993 after he refused to comply

with extortion demands made by the FARC, a marxist guerrilla

1
These facts are drawn from the petitioners' testimony before the
IJ. As we discuss, the IJ deemed portions of this testimony not
credible.

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organization. Another brother, Alonso Díaz-García, was a community

leader active in the local Liberal Party who was shot by guerrillas

on account of his support for various human rights initiatives and

his opposition to the FARC. Most of Díaz's surviving family

members continue to live in the Cali area.

As a young teenager, Díaz was politically active in

Cali's Liberal Party, acting as a go-between for party leaders and

community groups on various local issues. In high school, Díaz

served as a Classroom Representative on the Student Council, where

he advocated for improvements to the quality of public education.

Later, as a student at the University of Santiago de Cali, Díaz

joined the Advisement Staff, where he advocated for better

classroom and laboratory equipment, monitored classmate activities,

and counseled other students. At times, he and other students

would "go out to the street" to protest the distribution of

resources at the University and the increasing costs of education.

At no point during this period was Díaz threatened or punished for

his activism.

In 1990, Díaz began teaching science at Colegio Calrete,

a small, private high school in Cali. In approximately 1994, he

moved to a government-run school, also in Cali, where he taught

science and math until 2003. Díaz was also actively involved with

SUTEV, a teacher's union in the Cali Valley Department. SUTEV had

approximately 16,000 members in the Cali Valley, divided among

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local branches in each city in the Department. Díaz was eventually

elected president of his local branch in the city of Rodanillo. In

this role, Díaz coordinated with other union leaders to oppose a

series of educational reforms which the Colombian government began

to implement in the mid-1990's, including the integration of

neoliberal political views into the standard curriculum and the

privatization of the country's schools.

In 2000, Díaz attended a meeting of the SUTEV National

Congress in Santa Marta, Colombia, where members voted to stage a

nation-wide teachers' strike to protest the government's education

initiatives. When Díaz and other union members returned to

Rodanillo, they organized a series of meetings with local

government officials. In these meetings, the officials indicated

that they supported the union's goals but, in the end, failed to

take action as they had promised. The union eventually went "into

the streets" to protest local government corruption. Later, in

2001, the Colombian Federation of Educators, a national teacher's

union, held another nation-wide strike, in which Díaz and other

SUTEV members participated.

2. Encounters with the FARC

According to Díaz's testimony, the nation-wide strike

drew the ire of various groups, including the FARC guerrillas,

which denounced SUTEV as an enemy. Díaz testified that he then

began receiving threats from the guerrillas. Typically, these

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threats took the form of pamphlets or anonymous phone calls

threatening to "finish" Díaz and his family if he did not cease his

union activities. Díaz initially stated that the threats began in

2001 in connection with the national strike, though he later

asserted (as he had in his initial asylum interview) that the

threats began in 1999, when SUTEV began to denounce the FARC

guerrillas for using the schools as a strategy point. When

pressed, Díaz explained that he received his first threatening call

in 1999, but that in 2001 the calls became more serious. Díaz

initially estimated that he received between five and ten

threatening calls. He later stated that he received these

threatening calls "very often."

Díaz also testified that he was physically threatened by

individuals he believed to be associated with the FARC guerrillas.

On one occasion, he was approached by an unknown individual on a

motorcycle who warned Díaz that he would "pay with his life" if he

did not "resign" from SUTEV. While he initially stated that this

threat occurred in April 2002, he acknowledged that it could have

occurred at some other time because he had "a problem remembering

dates." Díaz also said that on another occasion two men broke into

his home and broke his windows. Díaz opined that if his house had

not been "well secured" the individuals would have been able to

kill him. Díaz failed to mention this incident in his direct

testimony.

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 In his initial asylum interview, Díaz had informed the

immigration officer that he had been shot at by guerrillas on two

occasions, in 2001 and 2002. When questioned by the government,

Díaz explained that, while he had never personally been shot at,

his home had been shot at in both years. Díaz did not mention

these incidents until after he had assured the IJ that he had

recounted all of his encounters with the guerrillas. He explained

that he "didn't remember[]."

Díaz reported some of these threats to SUTEV, and later

to the local District Attorney, the Mayor, the Governor, and the

General Commander of the Police. Díaz submitted into evidence a

copy of a police report indicating that he had received threatening

phone calls in March and April 2002. Díaz explained that the

police reports did not describe the threats he had received in 2001

because he did not begin reporting the threats to the police until

2002. He also asserted that the 2001 threats were not included in

the police report because he could not report threats occurring so

far in the past. The police report indicated that it was prepared

in October 2002, approximately six months after the reported

threats had occurred.

In response to Díaz's complaint, the police investigated

the threats, tapped his phones, and "watched over" and "supported"

Díaz at his home and work. In July 2003, after several months had

elapsed, the police discontinued their surveillance and protection

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due to a lack of resources. They advised Díaz to change his phone

number and to avoid public places alone or with his family. Díaz

testified, however, that he ignored this advice because he lived a

"public life" and it would be an inconvenience to change phone

numbers given how many people, particularly professional contacts,

had his phone number at the time. He added that it would do no

good to change his number because the threats would continue until

he resigned from his position with the union. The threatening

calls ceased, in any event, when Díaz stopped answering calls from

unknown phone numbers on his caller ID.2

Though he did not change his phone number, Díaz testified

that he did relocate to nearby cities in the Cali Valley Department

(all within commuting distance of his job) in order to protect

himself and his family. He did not leave the Department, however,

because doing so would be "too complicated" and because "everywhere

you go they will find you." Díaz stated that other union members

who had left the Cali Valley Department were unable to find work,

were assigned to locations "where they had no dignity," or were

2
Contrary to his testimony on direct examination that he had no
contact with the guerrillas between July 2003 and November 2003,
Díaz later stated in response to the government's questions that
during that period a group of men hung around his work and
disparaged union members, which made him "very nervous." He
reported his encounters with these men to the police, but they
never investigated and, instead, told Díaz to return if anything
out-of-the-ordinary occurred. No police report was submitted in
connection with these encounters.

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forced to sleep in classrooms and had lost their homes. Díaz did

not elaborate further.

3. Leaving Colombia

Sometime in 2002, Díaz and his family applied for, and in

2003 eventually obtained, visas so that his children could visit

Walt Disney World in Florida. Díaz stated that his original

intention when he obtained the visas was only to vacation in the

United States, and then return to Colombia. When asked why he

changed his mind after arriving, Díaz explained:

When we came here and I started seeing how
beautiful this country is, I was talking to
various people in regards to the education, my
professional formation, and I see that this
country has [] very high technology. [I
s]tarted talking to my children to see if
they'd like to be here. . . . I wanted to go
back[], but my children told me they [feel]
free and happy here.

Díaz also stated, however, that he came to the United States

because he "always lived in fear" in Colombia. In preparation for

his trip, Díaz obtained letters and other materials documenting his

membership in SUTEV and the threats he had received. He explained

that these materials were intended as "proof and evidence" for

unforseen contingencies.

Díaz and his first wife divorced in 2005, and his former

wife and his three children returned to Cali, Colombia.3 Díaz

3
Díaz has since remarried to a lawful permanent resident who was,
at the time the IJ issued her decision, awaiting United States
citizenship.

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testified that his family was afraid to return, but because he now

works full-time as a security guard he would not have been able to

care for his children if they had remained in his custody. He also

felt that it was better for the children emotionally to be with

their mother. Díaz speaks to his children by phone everyday, and

is unaware of any problems that they or his former wife have had

since their return. In his opinion, the FARC guerrillas who had

previously targeted him and his family were unaware that they had

returned to Colombia.

Díaz also acknowledged the changing nature of the FARC

guerrilla campaign in recent years, which is corroborated by State

Department country reports and other documentary evidence in the

record. The FARC is no longer driven by an ideological opposition

to SUTEV's activities, but now concentrates principally on drug

trafficking, kidnapings, and other criminal activities.4 He

characterized the guerrillas, at present, as "like a distraction."

Still, Díaz maintains that the FARC guerrillas continue to view

SUTEV as an enemy and will resume, and act on, their previous

threats if he returns. Since leaving Colombia, Díaz has learned

through conversations with former colleagues that some of his co-

4
Díaz testified: "Today [the FARC guerillas] don't have a
position [on public education]. Before, when the guerrillas
started, they had a social ideology. But now, . . . they have
diverted from that and they are doing narco traffic[ing]. So for
us, . . . they don't have an ideology, an educated political
ideology."

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workers have been threatened or killed. He also states that the

guerrillas continue to attack and kill members of the education

community, and that his name appears on a list, compiled by the

guerrillas, of people involved in political or SUTEV activities.

B. Agency Proceedings

Díaz was admitted to the United States on a nonimmigrant

visitor's visa at Miami, Florida on November 6, 2003. The visa

expired on May 4, 2004. Díaz overstayed and, about a month later,

filed applications for asylum, withholding of removal, and relief

under the CAT, all of which the asylum officer denied. Díaz then

conceded removability in the immigration court and, after several

continuances to allow Díaz to obtain counsel, a hearing was held

before the IJ on April 10, 2007. Díaz testified in support of his

allegations of persecution.5

On August 7, 2007 the IJ issued a nineteen-page opinion

denying Díaz's various applications for relief and ordering his

removal to Colombia. The crux of the IJ's decision was a finding

that Díaz had not testified credibly.6 While the IJ found Díaz's

testimony "generally plausible in light of verifiable country

conditions," she determined that "his testimony in response to

5
Díaz initially requested relief on behalf of himself and his
family. He abandoned those derivative claims after his ex-wife and
children returned to Colombia.
6
The IJ did not credit the asylum officer's negative credibility
assessment due to the officer's shoddy note-taking and other
defects in the record of the asylum interview.

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questions regarding his involvement with SUTEV and his subsequent

encounters with the guerrillas was vague and lacking in detail, and

he often appeared to ramble or 'talk around' a question rather than

answer directly." The IJ further explained that Díaz's testimony

regarding his allegations of persecution was often inconsistent

and, at times, implausible.

The IJ also found that Díaz had failed to establish a

pattern or practice of persecution on the basis of his SUTEV

membership, or eligibility for CAT relief because, among other

things, he had not demonstrated that the Colombian government was

responsible for, or was willfully accepting of, the guerrillas'

activities, as the Convention requires. See 8 C.F.R

§ 1208.18(a)(1). The BIA affirmed without opinion, and Díaz filed

a timely appeal to this court.

II. Discussion

A. Standard of Review

"[W]here, as here, the BIA has adopted the IJ's decision

and has not developed an independent rationale, we review the IJ's

decision directly." Seng v. Holder, 584 F.3d 13, 17 (1st Cir.

2009). Review of the IJ's "legal rulings is de novo but is

deferential as to findings of fact and the determination as to

whether the facts support a claim of persecution." Jorgji v.

Mukasey, 514 F.3d 53, 57 (1st Cir. 2008). "The [IJ's] fact-bound

determinations, including credibility findings, will be upheld,

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provided that they are supported by reasonable, substantial, and

probative evidence on the record considered as a whole, such that

no reasonable adjudicator would be compelled to conclude to the

contrary." Anacassus v. Holder, 602 F.3d 14, 18 (1st Cir. 2010)

(internal quotation marks and citations omitted).

B. Applicable Law

In a claim for asylum, "the petitioner carries the burden

of proving that he qualifies as a refugee by showing either that he

has suffered past persecution or has a well-founded fear of future

persecution on the basis of 'race, religion, nationality,

membership in a particular social group, or political opinion.'"

Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007) (quoting 8

U.S.C. § 1101(a)(42)).

The alien's credible testimony alone may
suffice to carry this burden. But the agency
is not required to take such testimony at face
value; it may discount or disregard the
testimony if the trier reasonably deems it to
be speculative or unworthy of credence. In
the absence of other compelling evidence, an
adverse credibility determination can prove
fatal to a claim for either asylum or
withholding of removal.

Villa-Londono v. Holder, 600 F.3d 21, 24 (1st Cir. 2010)(internal

citations and quotation marks omitted); see also Kartasheva v.

Holder, 582 F.3d 96, 105 (1st Cir. 2009)("We give great respect to

the IJ so long as he provides specific and cogent reasons why an

inconsistency, or a series of inconsistencies, render the alien's

testimony not credible." (internal quotation marks omitted)). The

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IJ's negative credibility assessment is "conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary." Abdelmalek v. Mukasey, 540 F.3d 19, 22 (1st Cir. 2008)

(quoting 8 U.S.C. § 1252(b)(4)(B)).

Díaz filed his claim in June 2004, before the effective

date of the REAL ID Act of 2005, Pub. L. No. 109-13, § 101(h)(2),

119 Stat. 302, 303 (effective May 11, 2005). "Thus, the bona fides

of the adverse credibility determination in this case are governed

by the preexisting 'heart of the matter' rule." Villa-Londono, 600

F.3d at 24. Under this rule, "'an adverse credibility

determination may not rest on discrepancies or inconsistencies that

are merely peripheral to the alien's claim; instead, the

determination must rest on discrepancies or inconsistencies that

are central to the claim.'" Id. (quoting Seng, 584 F.3d at 18).

C. Eligibility for Asylum

In this case, there is no real dispute that the IJ's

negative credibility assessment went to the heart of Díaz's claim

of persecution. The IJ specifically disbelieved Díaz's allegations

regarding his encounters with the FARC guerrillas, and Díaz has

asserted no other plausible grounds for entitlement to the relief

he seeks. Thus, our review is limited to determining whether the

IJ's assessment was supported by substantial evidence.

In her decision, the IJ provided a specific, cogent and

persuasive account of why she found Díaz's testimony regarding his

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alleged persecution not credible. The IJ explained that Díaz was

vague in his testimony regarding his encounters with the FARC, and

attempted to avoid or "talk around" questions regarding his alleged

mistreatment, which caused her to doubt his veracity. See Yosd v.

Mukasey, 514 F.3d 74, 80 (1st Cir. 2008)(where petitioner's initial

"testimony about [] incidents [of alleged persecution] was vague,"

petitioner's "lack of specificity could reasonably lead the IJ to

infer that [his testimony] lacked credibility").7 The IJ also

explained that Díaz failed to mention several key encounters with

guerrillas until prompted to do so by the government on cross-

examination, and failed to remember significant details, or even

the basic timeline, of the events he described. See, e.g., Mam v.

Holder, 566 F.3d 280, 283-85 (1st Cir. 2009)(finding significant

discrepancies concerning dates of key events with respect to asylum

claim sufficient to justify adverse credibility determination);

Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir. 2008)("[W]hen an

alien's earlier statements omit any mention of a particularly

7
The IJ added:

[Díaz] was . . . not appropriately responsive to
questions on direct and cross-examination, and both the
[IJ] and his own attorney warned him repeatedly to answer
the specific questions posed. However, despite these
warnings, [Díaz] continued to provide ambiguous responses
that often did not address the question or were so
lacking in detail the [IJ] was left without clarification
of his prior testimony. Moreover, when asked to explain
or clarify his testimony, [Díaz] was often unable to do
so, and instead would begin speaking about another
(somewhat tangential) topic.

-14-
significant event or datum, an IJ is justified -- at least in the

absence of a compelling explanation -- in doubting the petitioner's

veracity."); see also Bebri v. Mukasey, 545 F.3d 47, 51 (1st Cir.

2008). The IJ noted that while applicants for asylum "are not

required to recollect in detail every encounter with their

persecutors, it seems logical that an individual seeking asylum on

the basis of his encounters with guerrillas would be able to

independently remember and recount major incidents such as a home

being broken into or being fired upon." When presented with the

opportunity to explain these inconsistencies and other questions

raised by his testimony, Díaz could not provide a convincing answer

beyond lack of memory.

Finally, the IJ found several aspects of Díaz's testimony

implausible and at odds with his claim of persecution. Among other

things, Díaz stated that he refused to follow the advice of the

police and change his phone number because it would be an

inconvenience and did not present "too much of a security [risk]."

Despite the alleged threats to his life and his family, he never

attempted to relocate to an area outside of commuting distance to

his job. Further, his testimony that he came to the United States

so that his children could visit Walt Disney World, and chose to

remain because of the various educational, economic, and

technological opportunities available, was inconsistent with his

claim that he fled persecution and remained in the United States

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out of fear for his life. See, e.g., Piedrahita v. Mukasey, 524

F.3d 142, 144 (1st Cir. 2008) (affirming denial of asylum claim

based on agency's adverse credibility finding where the BIA

identified "several material inconsistencies, vague and implausible

testimony, and omissions which reached to the heart of the

respondent's claim").

Díaz does not really confront the implications of the

IJ's adverse credibility finding, but instead asserts that

documentary evidence of conditions in Colombia, including State

Department reports, supports the conclusion that the FARC

guerrillas actively target educators and union leaders like Díaz.

However, while "country conditions reports are deemed generally

authoritative in immigration proceedings, the contents of such

reports do not necessarily override petitioner-specific facts --

nor do they always supplant the need for particularized evidence in

particular cases." Seng, 584 F.3d at 20 (internal quotation marks

omitted). The IJ found that Díaz failed to provide credible

evidence that, on account of his activism, he found himself in the

guerrillas' cross-hairs, and we find that the other evidence in the

record falls far short of compelling a contrary conclusion. We

thus hold that the IJ's negative credibility assessment regarding

Díaz's allegations that he was threatened by the FARC Guerrillas

was amply supported by a specific and cogent explanation based on

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substantial evidence in the record. As a result, his asylum claim

based on past persecution fails.

It also follows, on these facts, that Díaz has failed to

establish a well-founded fear that he will be singled out for

future persecution. When a petitioner is unable to demonstrate

that he suffered persecution in the past, "he may still qualify for

asylum by establishing a well-founded fear of future persecution

through 'specific proof' that his 'fear is both subjectively

genuine and objectively reasonable.'" Decky v. Holder, 587 F.3d

104, 110 (1st Cir. 2009)(quoting Castillo-Díaz v. Holder, 562 F.3d

23, 26 (1st Cir. 2009)). However, because Díaz's testimony

regarding his alleged encounters with the FARC guerrillas was not

credible, he cannot establish either a subjectively genuine or

objectively reasonable fear that he will be individually targeted

by those guerrillas on his return. Indeed, Díaz's ex-wife and

children have returned to Colombia with his blessing and without

incident. See, e.g., Budiono v. Mukasey, 548 F.3d 44, 50 (1st Cir.

2008)("The fact that close relatives continue to live peacefully in

the alien's homeland undercuts the alien's claim that persecution

awaits her return.").

Finally, Díaz has failed to establish eligibility for

asylum based on a "pattern or practice" of persecution against "a

group of persons similarly situated to the applicant" on account of

a protected ground. See 8 C.F.R. § 1208.13(b)(2)(iii)(A). In

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"extreme cases," a petitioner may qualify for relief "solely based

on their membership in a protected group under the pattern or

practice rubric." Rasiah v. Holder, 589 F.3d 1, 5 (1st Cir. 2009).

However, "[o]ur case law has narrowly defined 'pattern or practice'

to encompass only the systematic or pervasive persecution of a

particular group based on a protected ground, rather than

generalized civil conflict or a pattern of discrimination."

Sugiarto v. Holder, 586 F.3d 90, 97 (1st Cir. 2009).

To be sure, the situation in Colombia remains tragically

unstable. According to State Department country reports,

"[p]aramilitary groups and guerrillas threatened, displaced, and

killed academics and their families for political and financial

reasons," and 34 teachers were killed by "[v]arious assailants"

during the first eight months of 2006. Department of State, 2006

Country Report on Human Rights Practices in Colombia, at *13

[hereinafter "2006 Report"]. Nonetheless, the Colombian government

has undertaken various initiatives to address this situation, which

have shown "demonstrable" results. Id. For example,

The Ministry of Education, in conjunction with
the Colombian Federation of Educators and the
Presidential Program for Human Rights,
operated a program for at-risk teachers with
78 regional committees to investigate specific
threats against teachers and, in some cases,
facilitate relocation with continued
employment as educators. Approximately 168
threatened educators were successfully
relocated since 2004, raising to 1,500 the
number relocated since 2002.

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Id. at *1. This successful relocation program undermines any claim

that the guerrillas' persecution of educators is sufficiently

"systematic" or "pervasive" to establish a pattern or practice of

persecution capable of supporting Díaz's application for asylum.

In any event, "an individual who can relocate safely within his

home country ordinarily cannot qualify for asylum here," INS v.

Ventura, 537 U.S. 12, 18 (2002)(citing 8 C.F.R. § 208.13(b)(1)(I)),

and Díaz has failed to demonstrate that relocation in Colombia is

not a viable option.

Likewise, while union leaders face similar risks from

guerillas and other armed groups, "[t]he government continued its

protection program for threatened labor leaders, providing

protection measures for more than 1,200 trade unionists during the

year." 2006 Report, at *21. We have repeatedly held that

"'persecution' implies a governmental link; that is, 'the

government must practice, encourage, or countenance it, or at least

prove itself unable or unwilling to combat it.'" Méndez-Barrera v.

Holder, 602 F.3d 21, 27 (1st Cir. 2010)(quoting López-Pérez v.

Holder, 587 F.3d 456, 462 (1st Cir. 2009)). Díaz has failed to

demonstrate any link between the FARC guerrillas' persecution of

these various groups and any action or inaction on the part of the

Colombian government. Indeed, the government's efforts to relocate

and protect both teachers and union leaders indicates that the

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government has taken an active role in opposing the guerrillas'

activities.

There may be additional problems with Díaz's asylum

claim, which we need not address, including whether he has

established membership in a cognizable "social group" within the

meaning of the immigration laws. See Scatambuli v. Holder, 558

F.3d 53, 59 (1st Cir. 2009)(explaining that "'persecution on

account of membership in a particular social group' refers to

'persecution that is directed toward an individual who is a member

of a group of persons all of whom share a common, immutable

characteristic'"); see also Castillo-Arias v. U.S. Att'y Gen., 446

F.3d 1190, 1198 (11th Cir. 2006)("The risk of persecution alone

does not create a particular social group within the meaning of the

INA, as virtually the entire population of Colombia is a potential

subject of persecution by the cartel."). Because the IJ's

determination that Díaz did not testify credibly regarding his

alleged persecution by the FARC guerrillas was supported by

substantial evidence and cut to the heart of his claim for asylum,

and because he has asserted no other grounds for the relief he

seeks, we affirm the IJ's denial of his applications.8

8
Because Díaz has not established eligibility for asylum, his
claim for withholding of removal fails as well. See, e.g., Decky,
587 F.3d at 109 ("[I]f the asylum claim fails, so too does the
claim for withholding of removal."). Díaz has not argued that he
is entitled relief under the CAT, and so we deem that claim waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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The petition is denied.

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