United States Court of Appeals
For the First Circuit
No. 05-2144
CESAR AUGUSTO ESTRADA-HENAO,
Petitioner
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Jose A. Espinosa on brief for petitioner.
Michael J. Sullivan, United States Attorney, and Gina Walcott-
Torres, Assistant United States Attorney, on brief for respondent.
June 27, 2006
Per Curiam. Cesar Augusto Estrada-Henao, a national of
Colombia, was detained on June 4, 2001, near Rio Grande City,
Texas. Removal proceedings were begun on the ground that he was in
the United States without having been lawfully admitted. 8 U.S.C.
§ 1182(a)(6)(A)(i) (2000). Estrada applied for asylum and for
withholding of removal under 8 U.S.C. §§ 1158, 1231(b)(3)(A) and
under the Convention Against Torture ("CAT"), 1465 U.N.T.S. 85; see
also 8 C.F.R. § 208.18 (2006) (implementing the convention).
It is common knowledge, documented by State Department
reports, that Colombia is a democracy but afflicted with violence
from leftist guerrillas and right-wing paramilitary organizations.
Kidnapping, for political reasons and to raise money through
ransoms, is common. In his application for asylum and withholding,
Estrada claimed that, while working as an insurance company
representative, he was kidnapped by such a group seeking financial
information about wealthy clients, and thereafter ransomed by his
family. He also said that after his departure from Colombia family
members had reported threatening calls inquiring about Estrada.
The immigration judge ("IJ"), following a hearing,
rejected Estrada's claims, saying that Estrada was not credible.
The IJ decision stressed Estrada's lack of any documentation (e.g.,
proof that he had been employed by the insurance company) and
various inconsistencies as between his asylum application and his
testimony (e.g., as to whether he had escaped or been kidnapped).
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The IJ found that Estrada had not established either a well-founded
fear of persecution for his political views or a plausible threat
of torture. The Bureau of Immigration Appeals affirmed without
opinion.
In this court, Estrada argues that the inconsistencies
were minor, that lack of documentation should not make his
testimony incredible and that failure to show reasonable fear of
political persecution does not preclude a showing of likely
torture. Our review, directed to the IJ decision, Waweru v.
Gonzales, 437 F.3d 199, 203 (1st Cir. 2006), is de novo on
questions of law but deferential as to factual findings, including
credibility. Singh v. Gonzales, 413 F.3d 156, 159-60 (1st Cir.
2005); 8 U.S.C. § 1252(b)(4) (2000 & U.S.C.A. 2005).
The inconsistencies or other oddities in the testimony
were not, taken together, trivial. The most remarkable is that
Estrada claimed in his testimony to have been threatened by right-
wing groups before the kidnapping, did not mention the threats in
his asylum application and then testified that he had been
kidnapped by FARC or the like (FARC is the most notorious of the
left-wing groups). There were further discrepancies between his
testimony and asylum application as to dates, whether he escaped or
was ransomed, and how he traveled to this country.
Making judgments as to credibility, difficult enough in
ordinary situations, is made even harder where some deviations
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(e.g., between asylum applications and testimony) may result from
the conditions under which the information was elicited and where
translation difficulties may account for discrepancies. But,
having read the transcript of the hearing in this case, we conclude
that the IJ did not act irrationally or without substantial
evidence in refusing to believe Estrada's basic story. Settenda v.
Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004) (substantial evidence
standard).
There is no rule, as Estrada suggests, that
inconsistencies be "wildly" inconsistent, nor does Nikijuluw v.
Gonzales, 427 F.3d 115 (1st Cir. 2005), so hold. Testimony,
together with contextual evidence, comprises a mosaic; its
assessment depends upon a number of factors (such as expected
probability of events and their fit together) and clues (self-
interest, memory as to detail, self-contradiction) which even
Wigmore found difficult to reduce to a formula.
As for Estrada's lack of documentation, we agree with him
that it is not automatically fatal, 8 C.F.R. § 1208.13(a) (2006),
but once again context matters: where documentation would
naturally be expected, its lack can count against the applicant.
Kheireddine v. Gonzales, 427 F.3d 80, 88 (1st Cir. 2005). Here,
the absence of any materials bearing out Estrada's employment
history or account of the kidnapping and ransom--considering that
Estrada claimed to be in contact with his family--could rationally
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be given some weight by the IJ, whose experience in assessing
asylum seeker stories, and the proof normally available, counts for
something.
Finally, having rejected Estrada's claim for asylum as
not supported by credible testimony, the IJ gave short shrift to
the claim for withholding (which requires a stronger showing of
likely persecution1) and under CAT. Estrada is right that under
some circumstances, a threat of torture under CAT could be made out
even though some element of proof required for asylum was not.
Settenda, 377 F.3d at 94. But in this case, Estrada's claim to
face any kind of threat upon returning to Colombia depended on the
credibility of his underlying story.
We have looked at the other decisions claimed by Estrada
to be helpful to him. These include Gailius v. INS, 147 F.3d 34,
39 (1st Cir. 1998), and Cometa v. INS, 34 Fed. App'x 316 (9th Cir.
2002) (which is, regardless of reading, not binding on this court).
The cases are distinguishable; Gailius, for example, involved
death-threat letters placed in the record. Further discussion
would serve no purpose.
The petition for review is denied.
1
The reason the stronger showing sometimes matters--since the
lesser showing will always be present where the greater one occurs-
-is that the lesser one qualifies the asylum seeker for
discretionary protection while the greater one entitles the
applicant to protection. Waweru, 437 F.3d at 205.
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