[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15703 ELEVENTH CIRCUIT
JULY 9, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A097-918-949, A097-918-950
ROSANGELA ROJO DA SILVA,
LAERCIO APARECIDO DA SILVA,
DANIELE ROSA DA SILVA,
MARIANE ROSA DA SILVA,
LARISSA ROSA DA SILVA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 9, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Rosangela Rojo Da Silva, a native and citizen of Brazil, seeks review of the
Board of Immigration Appeal’s (“BIA’s”) final order affirming the Immigration
Judge’s (“IJ’s”) denial of her application for asylum and withholding of removal.1
Immigration & Nationality Act (“INA”) §§ 208, 241; 8 U.S.C. §§ 1158, 1231.
Silva claims that she was persecuted in Brazil, and would be again, on account of
her political involvement in the October 2000 regional mayoral election in her
hometown of Curitiba. Da Silva testified before the IJ that she received
threatening phone calls before and after the election, suffered various beatings, and
was abducted by supporters of the mayoral candidate from the Worker’s Party—
which governed Brazil at the federal level—because she campaigned for the rival
PMB Party candidate. The BIA denied Da Silva’s petition for asylum due to her
failure to file an application within one year of her arrival in the United States or to
demonstrate extraordinary circumstances excusing her delay. The BIA denied her
petition for withholding, finding that her testimony regarding past persecution was
not credible, the beatings and threats underlying her application did not rise to the
1
Although both the IJ and the BIA made determinations regarding Da Silva’s
eligibility for CAT relief, her initial asylum application did not seek such relief. As such, Da
Silva did not exhaust her administrative remedies for seeking CAT relief and we lack
jurisdiction to consider the issue. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,
1250–51 (11th Cir. 2006) (holding this Court lacks jurisdiction to consider claims not raised
below by the alien even when the BIA reviews the claim sua sponte). Furthermore, Da Silva has
not challenged the BIA’s denial of her eligibility for CAT relief in this appeal, so to the extent
her application may be construed as seeking CAT relief, that issue is deemed abandoned. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
level of past persecution, and she had not shown that it was more likely than not
that she would be harmed upon her return to Brazil.
Da Silva raises three issues on appeal. First, she argues that the BIA erred in
dismissing her asylum application because her proffered explanation for her
untimely filing constituted an extraordinary circumstance excusing the delay.
Second, she argues that we should reverse the BIA’s adverse credibility
determination because her testimony at her asylum hearing was consistent with the
central aspects of her asylum application, and she provided explanations for the
remaining minor inconsistencies. Finally, Da Silva argues that the BIA erred in
finding that the two beatings, abduction, and continuous threats of harm she
endured did not amount to past persecution.
In reviewing Da Silva’s petition, we look only to the BIA’s decision because
the BIA issued its own opinion and did not expressly adopt the opinion of the IJ.
Chen v. United States Att’y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006) (“Where
the BIA issues a decision, we review that decision, except to the extent that it
expressly adopts the IJ’s opinion.”). Because Da Silva’s application for asylum
was filed in November 2003, prior to the enactment of the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231 (2005), the resulting statutory amendments do
not apply to her case.
I. Asylum
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INA § 208(1)(2)(B) requires that an alien applying for asylum must
demonstrate “by clear and convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. §
1158(a)(2)(B). “An untimely asylum application may be considered if the alien
can demonstrate extraordinary circumstances relating to the delay in filing an
application within the one-year period.” Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003) (citing 8 U.S.C. § 1158(a)(2)(D)). However, we have
determined that this Court lacks jurisdiction to review a decision regarding whether
an alien either complied with the one-year deadline or established extraordinary
circumstances that would excuse his untimely filing. Id.
Da Silva filed her asylum petition in November 2003, more than one year
after her arrival in the United States. She attempted to demonstrate an
extraordinary circumstance causing the delay, asserting that the notary she hired to
complete the application was responsible for the untimely filing. The BIA agreed
with the IJ’s determination that this testimony was unconvincing and dismissed Da
Silva’s asylum application for failure to satisfy her burden to demonstrate an
extraordinary circumstance exempting her from the INA’s one-year deadline.
Because we lack jurisdiction to review the BIA’s determination, we dismiss her
petition for asylum and turn to the appeal of her application for withholding of
removal. See id.
4
II. Withholding of Removal
“An alien is entitled to withholding of removal under the INA if he can show
that his life or freedom would be threatened on account of his race, religion,
nationality, membership in a particular social group, or political opinion.”2
Delgado v. U.S. Att’y Gen., 487 F.3d 855, 860–61 (11th Cir. 2007). An alien
seeking such relief “bears the burden of demonstrating that he more-likely-than-not
would be persecuted or tortured upon his return to the country in question.” Id. at
861 (internal quotation and citation omitted). To satisfy this burden, the alien must
show either: “(1) past persecution in his country based on a protected ground, in
which case a rebuttable presumption is created that his life or freedom would be
threatened if he returned to his country, or (2) a future threat to his life or freedom
on a protected ground in his country.” Id. (internal quotation and citation omitted).
The BIA concluded that Da Silva’s testimony regarding her past persecution
in Brazil was not credible, and that, even had her testimony been credible, Da Silva
still would have failed to satisfy her burden of proof for withholding of removal.
The BIA determined that the events underlying Da Silva’s application did not rise
2
Da Silva’s application for asylum also sought derivative relief for her husband,
Laercio Aparecido Da Silva, and her three daughters, Daniele Rosa Da Silva, Mariane Rosa Da
Silva, and Larissa Rosa Da Silva, all of whom are listed as petitioners in this appeal. “Although
the asylum statute explicitly creates derivative rights for the spouse of a petitioner, . . . there are
no derivative benefits associated with a grant of withholding of removal.” Delgado v. U.S. Att’y
Gen., 487 F.3d 855, 862 (11th Cir. 2007).
5
to the level of cognizable persecution, and that she could not establish that it would
be more likely than not that she would be harmed upon her return to Brazil.
Factual determinations, including credibility determinations, are reviewed
under a substantial evidence standard, which provides that a decision “can be
reversed only if evidence ‘compels’ a reasonable fact finder to find otherwise.”
Sepulveda, 401 F.3d at 1230. Therefore, we must affirm the BIA’s decision if it is
supported by “reasonable, substantial, and probative evidence on the record
considered as a whole.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001)
(internal quotation and citation omitted). “Under the substantial evidence test, we
view the record evidence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc).
A. Credibility Determination
The BIA found that Da Silva’s testimony was materially inconsistent with
her asylum application and therefore not credible. If the BIA explicitly determines
that an alien lacks credibility, it must offer “specific, cogent reasons” for such a
finding. Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1305 (11th Cir. 2009). The
burden then shifts to the alien to show why the credibility determination was not
supported by “specific, cogent reasons” or was not based on substantial evidence.
Id. Da Silva argues that the majority of the inconsistencies identified by the BIA
6
were minor and therefore did not constitute specific, cogent reasons for the BIA’s
adverse credibility determination. Further, she argues that because all such
inconsistencies resulted from errors made by the notary public hired to complete
her application, the BIA’s decision was not based on substantial evidence. We
disagree.
The inconsistencies between Da Silva’s asylum application, the evidence
submitted in support of her application, and her testimony before the IJ were
numerous and material to her claim. First, the record contains evidence of three
entirely different theories of asylum relief. Da Silva’s initial asylum application
sought relief on the basis of her husband’s involvement in a 30-member political
group called “La Pinta,” which encouraged students to become involved in
political activities, and claimed that she would sometimes attend the group’s
weekly meetings at her church. In contrast, the supporting affidavits provided by
members of her community for her master calendar hearing indicated that Da Silva
had been threatened “due to the fact that she had denounced irregularities of money
laundering in the municipality of Curitiba.” Da Silva’s own affidavit, which was
submitted prior to her merits hearing, and her testimony before the IJ, claimed a
third theory of relief: that she and her husband were persecuted by supporters of
Vainhome, the Worker’s Party candidate in Curitiba’s 2000 mayoral election, for
campaigning for Taniguchi, the mayoral candidate that supported the daycare
7
program where she worked. It is this third theory that Da Silva embraced in her
appeal before the BIA and her briefs to this Court.
Second, Da Silva’s alleged past persecution varied significantly in degree
and kind between her asylum application and testimony before the IJ. Da Silva’s
asylum application claimed that the extent of her past persecution was a series of
threatening phone calls in 2001 and 2002—first aimed at her husband and then
aimed at Da Silva herself following her husband’s decision to flee Brazil—and a
single incident in 2002 at her church in which two men approached her, looking for
her husband after he left the country, spit on her face, and slapped her.
Da Silva recounted much more frequent harassment and beatings in her
affidavit, and many of the details contained therein contradicted her asylum
application. She claimed not only that she and her husband received threatening
phone calls, but also that they were both approached at their church by “very large,
strong looking men.” In this account, Da Silva claimed that the men beat her
husband on the back with a stick in addition to slapping her and spitting in her
face. They then forced her and her husband “face down in the trunk of a car” and
threatened to kill them. Da Silva claimed to have suffered a head injury, dizziness,
and pain lasting for 15 days from this incident but did not provide any
corroborating evidence in the form of a police or medical report. These events all
allegedly occurred in 2000, surrounding Curitiba’s mayoral election.
8
Da Silva also attested to an additional beating, in which two men who came
to her house looking for her husband kicked and beat her. She claimed to have
suffered bruises on her arms and legs and believed she had fractured her
collarbone. After Taniguchi won the election, Da Silva claimed she was blamed by
some for his opponent’s loss, and the threatening phone calls continued, sometimes
amounting to ten phone calls a day. According to her affidavit, it was then that she
and her husband decided to flee Brazil.
Although Da Silva’s oral testimony before the IJ largely tracked the contents
of her affidavit, this testimony also diverged from previous accounts in certain
respects. She claimed that she received many phone calls, but instead of ten a day,
she testified to only receiving nine or ten in total, and on some occasions two
phone calls in one week. With regard to the beating incident occurring in her
home, Da Silva testified that she bled from her mouth, had bruises on her back and
shoulders—as opposed to her arms and legs—, and did not mention any injury to
her collarbone.
These inconsistencies were specific, cogent reasons justifying the BIA’s
adverse credibility determination. Contrary to Da Silva’s characterization of these
differences as “minor” and consisting of only one relevant inconsistency, the
discrepancies are both numerous and material to her claim. The record contains
three different theories of persecution and divergent accounts of the conduct
9
comprising that persecution. Although not addressed by the IJ or BIA, the
affidavits submitted by Da Silva prior to her merits hearing, which indicate she had
been threatened as a result of money laundering accusations, cast further doubt on
her theory of relief.
Da Silva has attempted to account for these inconsistencies by contending
that portions of her initial asylum application were fabricated by the notary who
prepared it. The IJ found, and the BIA agreed, that this excuse was not credible,
and instead concluded that the differences were a result of Da Silva’s efforts to
embellish her claim for relief. The BIA further concluded that Da Silva did not
provide sufficient corroborating evidence, such as police reports or medical
records, to support her claims.
In light of the significant discrepancies between Da Silva’s application and
testimony, as well as the absence of any corroborating evidence of her claims, we
cannot conclude that a reasonable factfinder would be compelled to reverse the
BIA’s adverse credibility determination on this record. See Yang v. U.S. Att’y
Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). As a result, the BIA’s conclusion that
Da Silva’s testimony was not credible is conclusive and we deny her petition for
withholding of removal. See Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1276–77
(11th Cir. 2009) (“[A] denial of asylum relief can be supported solely by an
adverse credibility determination, especially if the alien fails to produce
10
corroborating evidence.”).3
DISMISSED IN PART, DENIED IN PART.
3
Because substantial evidence supports the BIA’s adverse credibility
determination, Da Silva has failed to demonstrate her eligibility for withholding of removal.
Thus, we need not consider whether, if Da Silva’s testimony were credible, the actions
underlying her asylum application amounted to past persecution, whether such persecution was
at the hands of Vainhome supporters on account of her political opinion, or whether she would
more likely than not suffer future persecution for such political opinions upon her return to
Brazil.
11