Alvaro Parada Perez v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14421 MARCH 24, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

Agency No. A97-638-496

ALVARO PARADA PEREZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(March 24, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Alvaro Parada Perez, pro se, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ’s”)
order finding him removable and denying his application for asylum and

withholding of removal. After review, we deny the petition for review.

I. BACKGROUND

On September 22, 2002, Parada, a citizen of Colombia, entered the United

States on a B-1 Visa as a non-immigrant visitor for business, with authorization to

remain until October 21, 2002. Parada remained in the United States past this date.

In September 2003, Parada filed an application for asylum, withholding of removal

and relief under the United Nations Convention Against Torture (“CAT”).

Parada claimed he had suffered past persecution and had a well-founded fear of

future persecution in Colombia by two guerilla groups, the National Liberation

Army (“ELN”) and the Revolutionary Armed Forces of Colombia (“FARC”),

because of his political activity and membership in a particular social group.

On October 28, 2003, the Immigration and Naturalization Service (“INS”)

issued a Notice to Appear (“NTA”), charging Parada with removability under the

Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B), as an alien who remained in the United States beyond October 21,

2002 without authorization. On April 13, 2004, Parada appeared before the IJ with

counsel, admitted the factual allegations in the NTA and conceded removability.

Parada then testified about the alleged persecution. Parada explained that he

was a member of the Liberal Party, a civil engineer and the director of a technical
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college with schools located in several cities around the country. Parada counseled

his students to avoid becoming involved with guerilla groups. Parada was

involved in political campaigns, including the campaign of President Alvaro Uribe.

Parada claimed that he received numerous threatening phone calls, that he was

confronted twice by armed guerillas on the street and threatened and that a friend’s

home where he was staying was sprayed with bullets. Parada also testified that in

2000 he was shot in the knee and back when a campaign bus he was riding in was

attacked by armed men and that three days later the FARC called and claimed

responsibility.

After the hearing, the IJ denied Parada all relief. Based on numerous

inconsistencies, omissions and implausibilities in the record, the IJ concluded that

Parada’s testimony was not credible and his documents in support of his

application were either not credible or to be accorded little weight. The IJ found

that Parada had been shot, but did not find him credible as to the reason he was

shot. Rather, the IJ found, based on a statement of an eyewitness to the bus

shooting, that it was more likely that Parada was targeted by the guerillas because

he had refused to pay them money and that the bus attack was an attempt to kidnap

him. The IJ concluded that Parada was not eligible for asylum, withholding of

removal or CAT relief.

With new counsel, Parada appealed to the BIA, challenging the IJ’s denial of
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asylum and withholding of removal.1 The BIA dismissed Parada’s appeal, finding

that the IJ’s adverse credibility determination was supported by the record and

citing examples of several inconsistencies and/or omissions. The BIA also rejected

Parada’s claims: (1) that he received ineffective assistance of counsel in preparing

his asylum application and at his asylum hearing; (2) that the IJ erred by

overlooking the ineffective assistance during the hearing; and (3) that his due

process rights were violated because of allegedly faulty translation of his hearing

testimony. Finally, the BIA determined that it would not consider documents that

had not been submitted to the IJ. Parada filed this petition for review.

II. DISCUSSION

A. Persecution

To establish eligibility for asylum, an applicant must show either past

persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group or political opinion. INA §

101(a)(42)(a), 8 U.S.C. § 1101(a)(42)(A); Sepulveda v. U.S. Att’y Gen., 401 F.3d

1226, 1230-31 (11th Cir. 2005). Similarly, to establish eligibility for withholding

of removal, an applicant must show that it is “more likely than not” that he will be

persecuted on account of one of the protected grounds. INA § 241(b)(3)(A), 8

1
As the BIA noted, Parada did not challenge the denial of his request for CAT relief.
Parada does not challenge that ruling on appeal to this Court, and we do not address it.
4
U.S.C. § 1231(b)(3)(A); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th

Cir. 2003).2

An asylum applicant has the burden to show past persecution or a well-

founded fear of persecution by specific and credible evidence. Forgue v. U.S.

Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir. 2005). An adverse credibility

finding alone may support a denial of an asylum claim; however, if the applicant

produces other evidence, the IJ and the BIA must consider this evidence as well.

Id. at 1287. “Once an adverse credibility finding is made, the burden is on the

applicant alien to show that the IJ’s credibility decision was not supported by

‘specific cogent reasons’ or was not based on substantial evidence.” Id.

On appeal, Parada does not challenge the IJ’s adverse credibility finding.

Although Parada argues that the various incidents he suffered in Colombia

constituted persecution, Parada relies on his discredited hearing testimony. The IJ

outlined numerous inconsistencies and omissions, which formed an adequate basis

for his adverse credibility finding. Accordingly, substantial evidence supports the

2
We review only the BIA’s decision, except to the extent that the BIA expressly adopts
the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
“Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Id.
Here, because the BIA relied upon the reasons identified in the IJ’s order, we review both
decisions. We review fact findings of the BIA and the IJ under the substantial evidence test. Id.
at 1283. 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.” Id. at 1284 (quotations marks omitted). “To reverse a factual finding by the BIA, this
Court must find not only that the evidence supports a contrary conclusion, but that it compels
one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001).
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finding that Parada is not eligible for asylum or withholding of removal.3

B. Due Process

Due process requires that all aliens be given notice and an opportunity to be

heard in their deportation proceedings. Fernandez-Bernal v. U.S. Att’y Gen., 257

F.3d 1304, 1310 n.8 (11th Cir. 2001). “In order to establish a due process

violation, an alien must show that he or she was deprived of liberty without due

process of law and that the asserted error caused him substantial prejudice.”

Garcia v. U.S. Att’y Gen., 329 F.3d 1217, 1222 (11th Cir. 2003) (citation omitted).

During Parada’s hearing, the IJ commented on the poor performance of

Parada’s counsel in presenting the case, his unfamiliarity with the documentary

evidence in the record, the untimely filing of documentary evidence and the dearth

of corroborating documentary evidence. Parada argues that he was denied due

process when the IJ, aware of deficiencies in the record, failed to enter into the

record “documentary and physical evidence that was available upon request.”

Parada does not identify specifically what evidence the IJ should have asked for.4

3
Parada does not argue that, absent his hearing testimony, other evidence in the record
compels a conclusion that he suffered past persecution or has a well-founded fear of future
persecution. Thus, Parada has abandoned that claim. See Sepulveda, 401 F.3d at 1228 n.2.
4
Although Parado claims the record did not contain a Country Report for Colombia, a
2005 Country Report was, in fact, included in the administrative record presented to the IJ.
Parado complains that the asylum officer who initially reviewed Parado’s application failed to
include a medical report of his gunshot wounds when the record was transferred to the
immigration court. Parado also notes that he had the shirt he was wearing when he was shot and
could have submitted this evidence to the IJ. The failure to submit the medical record and the
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 The burden of proof in asylum and withholding of removal cases is on the

applicant, not the IJ. Thus, a counseled applicant has the obligation to submit any

relevant documentary and physical evidence he has to support his claim. Here,

Parado attached documents to his application and then supplemented the record

with additional documents three days prior to the hearing. At the hearing, the IJ

asked Parado’s counsel if he had any additional evidence or corrections that he

would like to submit to the court, and Parado’s counsel indicated he did not.

In sum, the IJ gave Parado an opportunity to testify in support of his claims,

asked Parado follow-up questions and considered all the evidence Perez did

present in support of his claim, including late-filed documents. We find no due

process violation.

C. Ineffective Assistance of Counsel

Parado argues that his counsel rendered ineffective assistance at the asylum

hearing. If an alien has counsel represent him in removal proceedings, the alien

has a due process right to effective assistance of counsel. Dakane v. U.S. Att’y

Gen., 399 F.3d 1269, 1273 (11th Cir. 2005). To show ineffective assistance of

counsel, “an alien must establish that his or her counsel’s performance was

deficient to the point that it impinged upon the fundamental fairness of the hearing

shirt did not prejudice Parado because the IJ credited his claim that he had been shot. What the
IJ concluded Parado had not shown was why he had been shot.
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such that the alien was unable to reasonably presented his or her case.” Id. at

1273-74 (quotation marks omitted).

The BIA has set forth the following procedural requirements for establishing

an ineffective assistance claim: (1) the motion must be supported by an affidavit of

the respondent setting forth in detail the agreement that was entered into with

counsel; (2) counsel must be informed of the allegations leveled against him and be

given an opportunity to respond; and (3) the motion must reflect whether a

complaint has been filed with appropriate disciplinary authorities with respect to

any violation of counsel’s responsibilities, and if not, why not. Matter of Lozada,

19 I & N Dec. 637, 639 (BIA 1988) (addressing an ineffective assistance claim

raised in a motion to reopen). This Court has upheld the BIA’s ability to require an

alien to satisfy the Lozada procedural requirements and concluded that, in addition,

the alien must show that the counsel’s deficient performance prejudiced the alien.

See Dakane, 399 F.3d at 1274.

The BIA rejected Parado’s ineffective assistance claim because he failed to

substantially comply with the Lozada procedural requirements. Parado does not

challenge the BIA’s finding in this regard, and there is no evidence in the record

that he did, in fact, comply with those requirements. Accordingly, the BIA did not

err in denying Perez’s ineffective assistance of counsel claim.

PETITION DENIED.
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