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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10702
Non-Argument Calendar
________________________
Agency No. A201-262-452
RICHARD RAMON MARTINEZ FUENMAYOR,
JUDITH VILMA CASANOVA VILLARREAL,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 23, 2015)
Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Petitioners Richard Martinez Fuenmayor and his wife Judith Casanova
Villarreal, natives and citizens of Venezuela, seek review of the Board of
Immigration Appeals’s (“BIA”) order, affirming the Immigration Judge’s (“IJ”)
denial of asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (“CAT”). After review, we deny the petition for
review.
I. BACKGROUND
A. Initiation of Removal Proceedings
In April 2002, Petitioners entered the United States as non-immigrant
visitors. In May 2003, Casanova and Martinez changed their statuses to H-1B
(temporary worker) and H-4 (dependent of H-1B visa holder), respectively.
In August 2011, having failed to maintain their respective statuses, Martinez
applied for asylum, withholding of removal, and CAT relief, listing Casanova as a
derivative beneficiary. 1 The Department of Homeland Security (“DHS”)
subsequently issued Petitioners notices to appear, charging them with removability
pursuant to 8 U.S.C. § 1227(a)(1)(C)(i), for failing to comply with the conditions
of their non-immigrant statuses. At a preliminary removal hearing, Petitioners
conceded removability and indicated that they intended to seek relief based on
Martinez’s previously-filed asylum application.
1
Casanova later filed her own application for withholding of removal and CAT relief, but her
application rested upon the same factual basis as Martinez’s.
2
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B. Asylum Application
In his application, Martinez claimed that he feared harm, mistreatment, and
torture if returned to Venezuela because of his political opinion and membership in
a particular social group. In particular, he stated that he was a member of the
specialized police force known as the DISIP, which was responsible for the
detention and arrest of President Hugo Chavez after his failed coup d’état in 1992.
Martinez was also a member of the Democratic Action Party. His application
provided that he lived at the same address in Caracas, Venezuela, from 1995 until
2002.
In a statement attached to his application, Martinez explained that Chavez’s
1992 arrest was the most important thing he participated in during his 12 years as a
DISIP police officer. After Chavez’s release from prison, Martinez started
receiving death threats and his family’s apartment was robbed several times.
Martinez’s eldest son, Jhonrid, also received threats and was the victim of
“senseless beatings and robbery” because of Martinez’s involvement with the
DISIP. In 1999, Martinez and his family moved to another city. During that same
year, while Martinez was driving on the highway, a car drove by and fired shots at
him.
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C. Merits Hearing
At a hearing before the IJ, Martinez testified about his participation in
Chavez’s 1992 arrest. After Chavez’s release in 1994, Martinez began receiving
threatening phone calls from Chavez’s allies. With respect to the highway
shooting, Martinez stated that he was on his way to a Democratic Action Party
meeting, when a car sped by and “[s]ome unknown people” fired shots at him. As
to Jhonrid’s attack, Martinez added that Jhonrid’s assailants told Jhonrid that they
knew his father was a policeman and that the beating was a message from Chavez.
During the same year as Jhonrid’s attack and the highway shooting,
Martinez’s home was broken into and his police weapons, uniforms, and personal
identification were stolen. These incidents forced Martinez’s family to move in
1994, 1996, 1999, and several times between 2000 and 2001. Each time they
moved, they continued to receive threatening phone calls. Martinez reported these
incidents to the police, but did not have any copies of the reports because they
were lost during the family’s moves.
On cross-examination, Martinez said that he was first threatened in 1996.
He then stated that he moved in 1995 or 1996, but quickly clarified that he began
receiving threatening phone calls toward the end of 1994, 1995, and 1997 through
1998. He explained that he did not include Jhonrid’s attackers’ message from
Chavez in his asylum application because he forgot. With respect to the highway
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shooting, Martinez admitted that he did not know who shot at him. Although
Martinez was not employed by the Democratic Action Party, he served as a
security advisor and was still an active member at the time of the removal hearing.
Casanova also testified in support of Petitioners’ applications for relief. She
stated that, although her family did not know who committed the harms against
them, they knew that the perpetrators were working on behalf of Chavez. She was
the victim of frequent, threatening phone calls. Her son, Jhonrid, was beaten and
robbed in 1999, but she did not know who attacked him. That same year, Martinez
was shot at because of his participation in Chavez’s arrest. Due to the harassment,
persecution, and threats, her family moved six times within Venezuela before
coming to the United States. The police reports the family filed based on these
incidents were stolen when their home was robbed in 1998 and 1999. On cross-
examination, Casanova stated that she took Jhonrid to the doctor after he was
beaten, but she did not have any record of his medical treatment.
D. IJ and BIA Decisions
The IJ denied Petitioners’ claims for asylum, withholding of removal, and
CAT relief. Citing inconsistencies between Martinez’s and Casanova’s testimony,
as well as omissions from Martinez’s asylum application, the IJ found Petitioners
not to be credible. The IJ also found that Petitioners failed to corroborate their
claims. In particular, there was no evidence establishing that Martinez participated
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in Chavez’s 1992 arrest, or that he was politically involved in Venezuela or the
United States. Thus, Petitioners failed to establish that they suffered past
persecution or had a well-founded fear of future persecution based on one of the
protected grounds. Even if Petitioners were deemed credible, they failed to
establish a nexus between the harm they allegedly suffered and one of the
statutorily-protected grounds. The IJ also denied Petitioners’ applications for
withholding of removal and CAT relief.
The BIA affirmed the IJ’s decision, concluding that the IJ provided specific
and cogent reasons for the adverse credibility determination, and that the record
supported those reasons. The BIA further determined that Petitioners did not
submit sufficient corroborating evidence to meet their burden of proof in the
absence of credible testimony. The BIA also agreed with the IJ’s denial of
Petitioners’ applications for withholding of removal and CAT relief. Finally, the
BIA construed the attachment of Jhonrid’s medical report to Petitioners’ appellate
brief as a motion to remand, but denied the motion because Petitioners failed to
establish a reasonable likelihood that their applications for relief would succeed on
the merits.
II. DISCUSSION
On appeal, Petitioners make the following arguments: (1) substantial
evidence did not support the IJ and BIA’s adverse credibility determination; and
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(2) they met their burden of proof for establishing eligibility for asylum,
withholding of removal, and CAT relief through their credible testimony and
corroborating evidence. 2
A. Standard of Review
We review the BIA’s decision as the final judgment, unless the BIA has
expressly adopted the IJ’s decision, in which case we review both decisions.
Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1330 (11th Cir. 2011). We also review
the IJ’s decision to the extent that the BIA adopted its reasoning or found the IJ’s
reasons to be supported by the record. Seck v. U.S. Att’y Gen., 663 F.3d 1356,
1364 (11th Cir. 2011). Here, because the BIA issued its own opinion, we review
the BIA’s decision. But because the BIA also agreed with several of the IJ’s
findings, we will review the decision of the IJ to the extent of that agreement. See
id.
We review factual findings, including credibility determinations, for
substantial evidence. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.
2005). Under the substantial evidence test, we must affirm a determination “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. (quotation omitted). We view the evidence in the light
2
Petitioners abandoned any argument related to the BIA’s denial of their motion to remand by
not providing sufficient legal and factual argument in their brief on appeal. See Mohammed v.
Ashcroft, 261 F.3d 1244, 1248 n.3 (11th Cir. 2001).
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most favorable to the agency’s decision, drawing all reasonable inferences in favor
of that decision. Id. In other words, we cannot overturn a finding of fact unless
the record compels it. Id. at 1287.
B. Adverse Credibility Determination and Burden of Proof
An applicant for asylum must meet the Immigration and Nationality Act’s
(“INA”) definition of a refugee. 8 U.S.C. § 1158(b)(1)(A). A refugee is a person
who cannot return to his or her home country due to “persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). To
establish eligibility for asylum, an applicant must demonstrate either past
persecution, or a well-founded fear of future persecution, based on a statutorily-
listed factor. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). If the
applicant demonstrates past persecution, there is a rebuttal presumption that he has
a well-founded fear of future persecution. Id.
To qualify for withholding of removal, an applicant faces an even more
daunting challenge. He must establish that his life or freedom would be threatened
in his country of origin on account of a protected ground. 8 U.S.C. § 1231(b)(3).
The burden is on the alien to show a clear probability of future persecution,
meaning that it is “more likely than not” that he will be persecuted or tortured if
returned to his country. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232
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(11th Cir. 2005). This standard is more stringent than the “well-founded fear”
standard for asylum. Id.
In order to succeed on a CAT claim, the applicant “must demonstrate it is
more likely than not that [he] will be subjected to pain and suffering at the hands or
acquiescence of the government.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145
(11th Cir. 2010). If an applicant is unable to meet the lower burden for asylum
relief, he is generally precluded from establishing eligibility for withholding of
removal or CAT relief. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1293, 1303–04
(11th Cir. 2001).
An applicant’s testimony, if credible, alone can be sufficient to sustain the
applicant’s burden of proof, even without corroborating evidence. Forgue, 401
F.3d at 1287; 8 U.S.C. § 1158(b)(1)(B)(ii). “If, however, the applicant produces
other evidence of persecution, whatever form it may take, the IJ must consider that
evidence, and it is not sufficient for the IJ to rely solely on an adverse credibility
determination in those instances.” Forgue, 401 F.3d at 1287.
Pursuant to the REAL ID Act of 2005, the IJ is to consider the totality of the
circumstances in making a credibility determination, including: (1) the applicant’s
demeanor, candor, or responsiveness; (2) the plausibility of the applicant’s
account; and (3) inconsistencies, inaccuracies, or falsehoods related to the
applicant’s statements, witnesses’ statements, and other evidence in the record,
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regardless of whether they relate to the heart of the applicant’s claim. 3 8 U.S.C.
§ 1158(b)(1)(B)(iii). “Once an adverse credibility finding is made, the burden is
on the [applicant] to show that the IJ’s credibility decision was not supported by
specific, cogent reasons or was not based on substantial evidence.” Ruiz, 440 F.3d
at 1255 (quotations and alteration omitted). The fact that the applicant provides
“tenable” explanations for the doubtful portions of his testimony does not compel
reversal, particularly in the absence of corroborating evidence. Chen v. U.S. Att’y
Gen., 463 F.3d 1228, 1233 (11th Cir. 2006).
Here, the IJ and BIA provided specific, cogent reasons for the adverse
credibility determination, citing a number of inconsistencies and discrepancies
between Martinez’s and Casanova’s testimony at the removal hearing and between
their testimony and Martinez’s asylum application. Specifically, the IJ and BIA
relied on: (1) an inconsistency between Petitioners’ testimony and Martinez’s
asylum application related to whether they moved several times within Venezuela
or lived at one address; (2) an inconsistency between the testimony given by
Petitioners regarding the identity of Jhonrid’s attackers; (3) an omission from
Martinez’s asylum application related to Jhonrid’s attackers’ purported message
from Chavez; and (4) an inconsistency between Petitioners’ testimony regarding
3
Because Petitioners’ asylum application was filed after May 11, 2005, it is subject to the
REAL ID Act of 2005. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 231, 303, 305.
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who was responsible for the highway shooting, as Martinez admitted on cross-
examination that he did not know who shot at him. The IJ and BIA also found
implausible Petitioners’ testimony that the evidence that would support their
claims—police reports and medical documentation—was stolen out of their home
or lost during their moves, especially because Petitioners could not explain why
they were able to submit other documentary evidence, including Martinez’s
diplomas and awards from the DISIP.
On this record, we conclude that the IJ and BIA’s adverse credibility
determination was supported by substantial evidence. See Forgue, 401 F.3d at
1286. Petitioners attempt to explain some of the doubtful portions of their
testimony on appeal. Specifically, they contend that Martinez’s failure to include
the message from Jhonrid’s attackers in his asylum application was an honest
mistake. Further, the address listed in Martinez’s asylum application was
Petitioners’ permanent address, as they did not provide the addresses from each of
their moves because those addresses were only temporary. The fact that
Petitioners provide “tenable” explanations for doubtful portions of their testimony
does not, however, compel the conclusion that they were credible. See Chen, 463
F.3d at 1233.
Petitioners also argue that they met their burden of proof for establishing
eligibility for relief because they submitted sufficient corroborating evidence to
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show that Martinez participated in Chavez’s arrest. In support of their claims,
Petitioners rely on internet articles about the DISIP and Mario Rocco, an individual
who Martinez claims was his colleague and suffered persecution for being
involved in Chavez’s 1992 arrest. The articles show that Rocco and other
unidentified DISIP officers prevented Chavez’s attempted coup and that Rocco
faces possible extradition to Venezuela. However, the articles do not connect
Martinez to Chavez’s arrest. Martinez’s documentary evidence showing that he
worked for DISIP likewise only connects him to the agency; it does not establish
that he participated in Chavez’s arrest. Additionally, the 2011 Country Report
states that several individuals were being held as political prisoners in Venezuela,
but it does not individually corroborate Martinez’s claim that he was personally
involved in Chavez’s arrest. Cf. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340,
1346 (11th Cir. 2008) (concluding that general evidence showing that human rights
abuses occur in a country was not specific to petitioner, and thus did not establish
that petitioner had a well-founded fear of future persecution).
Petitioners’ claims hinged on their contention that the harm they suffered
was a result of Martinez’s participation in Chavez’s arrest and his involvement in
the Democratic Action Party. In light of the adverse credibility determination and
Petitioners’ failure to provide sufficient corroborating evidence, the record does
not compel a finding that Jhonrid’s attack or the highway shooting were related to
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either Martinez’s involvement in the 1992 attempted coup, or his political
activities. Thus, substantial evidence supports the agency’s finding that Petitioners
failed to establish past persecution. See Forgue, 401 F.3d at 1286. Furthermore,
the only evidence Petitioners rely upon to argue that they have a well-founded fear
of future persecution is the internet article relating to Mario Rocco. Because that
article does not establish that Martinez participated in Chavez’s arrest, the record
does not compel reversal of the IJ and BIA’s determination that Petitioners failed
to establish a reasonable possibility that they would face future persecution. Id.
In short, substantial evidence supports the IJ and BIA’s denial of Petitioners’
asylum application. Id. at 1286–88 (concluding that substantial evidence
supported the denial of petitioner’s asylum application due to adverse credibility
determination and lack of corroborating evidence). Given that Petitioners failed to
establish eligibility for asylum, which carries a lower burden of proof, they
likewise failed to establish eligibility for withholding of removal and CAT relief.
See Al Najjar, 257 F.3d at 1292, 1303–04. 4 Accordingly, we deny the petition for
review.
PETITION DENIED.
4
On appeal, Petitioners improperly cite to internet articles that are not part of the record to
support their claim that they are entitled to CAT relief. See 8 U.S.C. § 1252(b)(4)(A) (requiring
the appellate court to review the petition based only on the administrative record).
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