[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13249 MAR 18, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK
Agency No. A099-554-258
HOWARD BRON SANCHEZ ORTIZ,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 18, 2010)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Howard Bron Sanchez Ortiz, a citizen of Colombia, petitions, through
counsel, for review of the Board of Immigration Appeals’s (“BIA”) decision,
affirming the Immigration Judge’s (“IJ”) order denying him asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), as
well as relief under the United Nations Convention Against Torture (“CAT”). The
BIA found that Ortiz was ineligible for relief because his testimony was not
credible. On appeal, Ortiz argues that the BIA’s adverse credibility finding was
erroneous and the BIA unreasonably expected him to provide corroborating
evidence in addition to his testimony. After thorough review, we deny the
petition.1
When the BIA does not adopt the IJ’s decision, we review only the BIA’s
decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Credibility
determinations are reviewed under the substantial-evidence test. Forgue v. U.S.
Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). Under the substantial-evidence
test, 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 1284 (quotation omitted). Therefore, we will reverse a finding
of fact “only when the record compels a reversal; the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
1
Because Ortiz’s counseled brief does not set forth an argument regarding CAT relief, he
has abandoned the CAT issue on appeal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
n.2 (11th Cir. 2005) (holding that a party abandons claims that he does not argue in his brief).
2
To be eligible for asylum “the [applicant] must, with credible evidence,
establish (1) past persecution on account of [his] political opinion or any other
protected ground, or (2) a ‘well-founded fear’ that [his] political opinion or any
other protected ground will cause future persecution.” Sepulveda, 401 F.3d at
1230-31 (quoting 8 C.F.R. § 208.13(a), (b)). To qualify for withholding of
removal, an applicant must establish 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 v. U.S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003) (citing 8 U.S.C. § 1231(b)(3)(A)). The applicant
bears the burden of proof in establishing his eligibility for asylum and withholding
of removal. See id.; 8 U.S.C. § 1158(b)(1)(B)(i). While the burdens of proof for
asylum and withholding of removal are different, if an applicant cannot establish
that he has a well-founded fear of future persecution based on a protected ground if
he were to be returned to his country, he cannot qualify for either asylum or
withholding of removal. See Sepulveda, 401 F.3d at 1232-33.
An applicant’s testimony, if credible, may carry his burden of proof without
corroboration. 8 C.F.R. § 208.13(a). “Conversely, an adverse credibility
determination alone may be sufficient to support the denial of an asylum
application.” Forgue, 401 F.3d at 1287. The BIA must make a “clean”
determination of credibility. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th
3
Cir. 2005). The BIA must also “offer specific, cogent reasons for an adverse
credibility finding.” Forgue, 401 F.3d at 1287. “Once an adverse credibility
finding is made, the burden is on the applicant alien to show that the [BIA’s]
credibility decision was not supported by ‘specific, cogent reasons’ or was not
based on substantial evidence.” Id. “Indications of reliable testimony include
consistency on direct examination, consistency with the written application, and
the absence of embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255
(11th Cir. 2006). We “may not substitute [our] judgment for that of the [BIA] with
respect to credibility findings.” Forgue, 401 F.3d at 1286 (quotation omitted). In
addition, if an applicant who is not a credible witness produces other evidence of
persecution aside from his testimony, the BIA is obligated to consider that
evidence. Id. at 1287.
The REAL ID Act amended the INA’s asylum provisions in 8 U.S.C. §
1158(b)(1)(B)(iii) to provide that an adverse-credibility determination can be based
on inconsistencies, inaccuracies, or falsehoods, regardless of whether they relate to
the heart of an applicant’s claim. Pub. L. No. 109-13, § 101(a)(3), (d), 119 Stat.
231, 303-05 (2005). Because Ortiz filed his asylum application in 2006, after the
May 2005 effective date of the REAL ID Act, this provision applies to his claim.
See Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305.
4
Here, the BIA’s adverse credibility determination was supported by
substantial evidence. There were two major discrepancies in Ortiz’s evidence
concerning: (1) his imprisonment in a cage on November 7, 2004; and (2) why he
left the other captives behind when he escaped from imprisonment. These
discrepancies are especially significant given that they both related to the only
incident in which Ortiz alleged that he suffered actual physical persecution. Thus,
because there were two major discrepancies in Ortiz’s testimony, the record does
not compel a reversal of the BIA’s adverse credibility decision. Furthermore, the
remaining evidence in this case does not compel a finding that Ortiz satisfied his
burden of proof with regard to asylum and withholding of removal, and
accordingly, we deny Ortiz’s petition.
PETITION DENIED.
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