[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 17, 2010
No. 09-12169 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency Nos. A099-638-476
A099-638-477
INGRID COROMOTO VELASQUEZ RIVERO,
CRISTINA ELENA VELASQUEZ RIVERO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 17, 2010)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Venezuelan native and citizen Ingrid Coromoto Velasquez Rivero petitions
for review of the Board of Immigration Appeals’ (BIA’s) decision affirming the
Immigration Judge’s (IJ’s) order denying her application for withholding of
removal.1 Velasquez Rivero2 raises two issues on appeal, which we address in
turn. After review, we deny her petition.
I.
First, Velasquez Rivero asserts the IJ’s adverse credibility finding was not
supported by substantial evidence because the IJ never explicitly stated he was
making an adverse credibility finding. To the extent he made an adverse
credibility finding, she contends she provided sufficient explanation for the
specific instances the BIA highlighted as weighing against her credibility.
Contrary to Velasquez Rivero’s assertion, the IJ made an explicit adverse
credibility finding, stating “I do not find . . . this applicant to be a credible
witness.” We review adverse credibility findings for substantial evidence. Chen
1
In her initial application, Velasquez Rivero also sought asylum and relief under the
Convention Against Torture (CAT). The IJ rejected the asylum application as untimely under 8
U.S.C. § 1158(a)(2)(B), and rejected her claim for CAT relief on the merits. Because Velasquez
Rivero did not raise the timeliness of her asylum application or CAT claims on appeal to the
BIA, we are jurisdictionally precluded from hearing them, and therefore, even assuming they are
raised before us, we dismiss the petition in these respects. Amaya-Artunduaga v. U.S. Atty. Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006).
2
Velasquez Rivero listed her daughter, Cristina Elena Velasquez Rivero, as a derivative
beneficiary on her application. We note, however, that derivative status applies to asylum, but
not withholding of removal. Delgado v. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007).
2
v. U.S. Att'y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006). Adverse credibility
findings will be reversed “only if the evidence compels a reasonable fact finder to
find otherwise.” Id. at 1231 (quotations omitted). “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). “[T]he IJ must offer specific, cogent reasons for an
adverse credibility finding.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282,1287 (11th
Cir. 2005) (quotation omitted). Once the IJ makes an adverse credibility finding,
the burden is on the applicant to show the finding was not supported by such
reasons or was not based on substantial evidence. Id.
Substantial evidence supports the IJ’s credibility finding.3 Although
Velasquez Rivero provided explanations for her statements at the hearing, the IJ
based his adverse credibility finding on specific discrepancies and omissions,4
including: Velasquez Rivero’s omission of the important fact of her daughter being
threatened in her asylum application; her omission during direct testimony that she
was taken by the national police; her omission of certain employment in the United
3
The BIA expressly adopted the opinion of the IJ with additions, so we review the IJ’s
opinion to the extent it was not modified by the BIA decision. See Tang v. U.S. Att’y Gen., 578
F.3d 1270, 1275 (11th Cir. 2009).
4
An adverse credibility determination may be based on any inconsistencies, even ones
that do not go to the heart of the applicant’s claim, provided that such a determination is
supported by the totality of the circumstances. 8 U.S.C. § 1158(b)(1)(B)(iii).
3
States; and her inability to adequately explain any of these inconsistencies without
resorting to embellishments. These examples represent specific findings—some of
which were material—that Velasquez Rivero failed to establish the indicia of
credibility this Court commonly recognizes. See Ruiz, 440 F.3d at 1255.
Moreover, given the weakness of Velasquez Rivero’s case, she failed to provide a
corroborating witness, despite testifying she had a friend in Miami who was here
legally and familiar with her situation in Venezuela. See Yang v. U.S. Att’y Gen.,
418 F.3d 1198, 1201 (11th Cir. 2005) (“The weaker an applicant’s testimony . . .
the greater the need for corroborative evidence.”). Given the totality of the
circumstances, the IJ’s adverse credibility finding is supported by substantial
evidence, and Velasquez Rivero has failed to satisfy her burden to demonstrate the
record compels this Court to overturn it.5
II.
Second, Velasquez Rivero asserts the BIA erred in concluding she received a
full and fair hearing from an impartial IJ, because his hostile and discourteous
treatment of her amounted to a violation of her due process rights. “We review de
novo constitutional due process claims.” Avila v. U.S. Att’y Gen., 560 F.3d 1281,
1285 (11th Cir. 2009). An individual in removal proceedings is entitled to due
5
The IJ also found Velasquez Rivero’s arrest for pamphleteering and the number of
phone calls she received were not plausible, but these conclusions appear to be speculative.
Nevertheless, any error in this respect is outweighed by the IJ’s other supported findings.
4
process of law under the Fifth Amendment. Reno v. Flores, 113 S. Ct. 1439, 1449
(1993). “To establish due process violations in removal proceedings, aliens must
show that they were deprived of liberty without due process of law, and that the
asserted errors caused them substantial prejudice.” Tang v. U.S. Att’y Gen., 578
F.3d 1270, 1275 (11th Cir. 2009) (quotations omitted). To show substantial
prejudice, the petitioner must show the alleged due process violation would have
affected the outcome of the case. See Patel v. U.S. Att’y Gen., 334 F.3d 1259,
1263 (11th Cir. 2003) (“It is clear that there was no such prejudice because it is
undisputed that . . . the result of those proceedings would have been the same in the
absence of the alleged procedural deficiencies.”).
The Seventh Circuit concluded an IJ violated an alien’s due process rights in
a prejudicial manner when the IJ “actively interject[ed] himself into the
proceedings, far exceed[ed] his role of developing the record, and at times
assume[d] an inquisitorial role.” Torres v. Mukasey, 551 F.3d 616, 627 (7th Cir.
2008). In Torres, the Court noted the IJ interrupted the petitioner, became
impatient, and did not give the petitioner time to respond. Id. In Cham v. Att’y
Gen. of the U.S., 445 F.3d 683, 688-91 (3d Cir. 2006), the court held the IJ, who
had been admonished before, was loud and belligerent to the petitioner, barely
gave him a chance to respond, and used the petitioner’s escalating nervousness to
5
support what was essentially a predetermined conclusion that the petitioner was not
telling the truth. Id.
The record does not show the IJ acted with hostility towards Velasquez
Rivero. The IJ questioned her at length, possibly eliciting more direct testimony
than her counsel did. A review of this questioning does not show hostility,
however, but rather an attempt to clarify the record. Although the IJ frequently
interrupted questioning, he allowed Velasquez Rivero’s counsel to resume when
finished, and provided him with an opportunity to finish direct examination and
redirect, which he declined. The record also demonstrates the IJ similarly
interrupted and corrected Government counsel numerous times, once specifically
noting the need to keep the record clear for potential appellate review. The manner
of questioning shows the IJ attempted to provide Velasquez Rivero with an
opportunity to be heard and present her claims as completely as possible. As there
is nothing in the record to indicate the IJ conducted the hearing in such a way as to
deprive Velasquez Rivero of an opportunity to be heard or cause her substantial
prejudice, the BIA did not err in determining there was no due process violation.
PETITION DISMISSED IN PART, DENIED IN PART.
6