United States Court of Appeals
For the First Circuit
No. 09-1832
ANA MARGARITA VILLA-LONDONO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Carlos E. Estrada on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, United
States Department of Justice, John S. Hogan, Senior Litigation
Counsel, and Michael C. Heyse, Attorney, Office of Immigration
Litigation, on brief for respondent.
March 12, 2010
SELYA, Circuit Judge. The petitioner, Ana Margarita
Villa-Londono, is a Colombian national who seeks judicial review of
a final order of the Board of Immigration Appeals (BIA) affirming
the decision of an immigration judge (IJ). That decision rejected
her claims for asylum, withholding of removal, and protection under
the United Nations Convention Against Torture (CAT). After careful
consideration, we deny the petition.
The facts are uncomplicated. On June 30, 2002, the
petitioner arrived in Miami and sought to enter the United States
by means of a doctored Colombian passport. Customs agents detected
the ruse and detained her.
While in custody, the petitioner proclaimed that she had
come to the United States in search of political asylum. She
explained that she had left behind a menacing boyfriend, who was in
drug rehabilitation. She attributed her flight both to her
boyfriend's threats and to her vulnerability to guerilla violence.
The claim of vulnerability was based on her employment as a
secretary to the mayor of Copacabana, Colombia, coupled with an
assertion that the guerillas tended to target public employees.
Several days after her initial debriefing, the petitioner
participated in a so-called "credible fear" interview. At that
time, she reiterated the fears that she previously had articulated.
When asked whether she, personally, had encountered any problems
with the guerillas, she answered "no."
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On July 9, 2002, federal authorities charged the
petitioner in the immigration court with (i) inadmissibility by
reason of her failed attempt to employ fraud or misrepresentation
and (ii) lack of a valid entry document at the time of her
application for admission. See 8 U.S.C. §§ 1182(a)(6)(C)(i),
1182(a)(7)(A)(i)(i). The petitioner admitted the government's
allegations and cross-applied for asylum, withholding of removal,
and protection under the CAT. In this cross-application, the
petitioner for the first time related a harrowing story involving
a dangerous encounter with guerillas who, in the months leading up
to her flight from Colombia, had been harassing her.
In April of 2005, the case was transferred to Boston at
the petitioner's request. The petitioner conceded removability and
testified in support of her cross-application. In her testimony,
she elaborated on her nascent allegations of guerilla harassment.
The tale began in October of 2001. The petitioner
averred that she was riding in a bus that was stopped by armed
guerillas. One passenger was executed on the spot. The petitioner
was not harmed, but the guerillas called her "a medium sized fish
. . . the secretary of the mayor." She was spared only because she
was not on the guerillas' list of current targets. The horrors of
that incident were reinforced by her later receipt of threatening
telephone calls from the guerillas.
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The IJ inquired why the petitioner had failed to relate
this tale in her credible fear interview. The petitioner blamed
that omission on a combination of nerves, hypertension, and poorly
controlled diabetes, which had compromised her responsiveness at
that moment. The petitioner introduced no medical evidence in
support of this averment.
In a bench decision, the IJ determined that the
petitioner's testimony was not credible. He specifically
referenced the glaring discrepancies between the petitioner's
statements during her credible fear interview and her testimony at
the merits hearing. Those versions were irreconcilable and, as
such, the latter version was unworthy of belief.
The other evidence in the record pertained almost
entirely to country conditions. Beyond that, there were two
petitioner-specific affidavits; nevertheless, neither compelled a
conclusion favorable to the petitioner. In all events, the IJ,
having discounted the petitioner's testimony, found insufficient
evidence to warrant granting any of the requested relief.
The BIA affirmed the IJ's decision. In its view, the IJ
had "supported his adverse credibility finding with specific and
cogent reasons based on the record." Accordingly, it held that the
petitioner had failed to make out a case for either asylum or
withholding of removal. By the same token, there was no credible
evidence that, if the petitioner were repatriated, any official of
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the Colombian government would more likely than not torture her or
acquiesce in her torture by others. Thus, the petitioner's CAT
claim also failed.
This timely petition for judicial review followed. In
such matters, we typically review only the BIA's decision. See,
e.g., Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009). But where,
as here, the BIA adopts portions of the IJ's opinion while adding
its own comments, we review both the IJ's opinion and the BIA's
decision. Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st Cir.
2008). We undertake that sort of hybrid review in this case.
Our standard of review is familiar. Factual findings,
including credibility determinations, are evaluated under the
substantial evidence rubric. That standard demands that we accept
factual findings as long as they are "supported by reasonable,
substantial and probative evidence on the record considered as a
whole." Seng, 584 F.3d at 17 (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)). Refined to bare essence, this means that in
the absence of an error of law, we will set aside the agency's
fact-based resolution of a claim only if "the evidence is such as
would compel a reasonable factfinder to reach a contrary
conclusion." Id.
In the case at hand, the petitioner advances three
arguments. First, she argues that the adverse credibility
determination is insupportable. Second, she argues that she made
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out a compelling case for asylum and/or withholding of removal.
Third, she argues that the BIA employed an incorrect legal rule in
rejecting her CAT claim. We address the first two arguments
together and then proceed to the third.1
In order to warrant asylum, an alien bears the burden of
demonstrating that she is a "refugee." 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1); Seng, 584 F.3d at 18. To come within this category, an
alien must demonstrate either past persecution or a well-founded
fear of future persecution "on account of race, religion,
nationality, membership in a particular social group, or political
opinion." Seng, 584 F.3d at 18 (quoting 8 U.S.C.
§ 1101(a)(42)(A)). The alien's credible testimony alone may
suffice to carry this burden. Id. But the agency is not required
to take such testimony at face value; it may discount or disregard
the testimony if the trier "reasonably deems it to be 'speculative
or unworthy of credence.'" Rivas-Mira v. Holder, 556 F.3d 1, 4
(1st Cir. 2009) (quoting Bebri v. Mukasey, 545 F.3d 47, 50 (1st
Cir. 2008)). In the absence of other compelling evidence, "an
adverse credibility determination can prove fatal to a claim for
1
In discussing the first two arguments, we need do so only in
terms of the petitioner's claim for asylum. After all, claims for
withholding of removal require a higher level of proof than claims
for asylum. It follows that if a claim for asylum is rejected on
the merits, a counterpart claim for withholding of removal must
necessarily fail. See Orelien v. Gonzales, 467 F.3d 67, 73 (1st
Cir. 2006); Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005).
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either asylum or withholding of removal." Pan v. Gonzales, 489
F.3d 80, 86 (1st Cir. 2007).
Here, the petitioner filed for asylum in 2002. That was
before the effective date of the REAL ID Act of 2005, Pub. L. No.
109-13, § 101(h)(2), 119 Stat. 302, 303 (effective May 11, 2005).
Thus, the bona fides of the adverse credibility determination in
this case are governed by the preexisting "heart of the matter"
rule. Seng, 584 F.3d at 18 & n.2. Under this rule, "an adverse
credibility determination may not rest on discrepancies or
inconsistencies that are merely peripheral to the alien's claim;
instead, the determination must rest on discrepancies or
inconsistencies that are central to the claim." Id.
In mounting her attack on the adverse credibility
determination here at issue, the petitioner assails the IJ's
reliance on the credible fear interview. She views the omission of
the 2001 bus incident from that account as fully explained and,
thus, insufficient to ground an inference of incredibility.2
We disagree. "[W]hen an alien's earlier statements omit
any mention of a particularly significant event or datum, an IJ is
justified — at least in the absence of a compelling explanation —
in doubting the petitioner's veracity." Muñoz-Monsolve, 551 F.3d
2
The petitioner's brief seems to suggest that she was under
some unspecified duress during the credible fear interview. To the
extent that this argument is raised, it was not exhausted before
the agency. Thus, we lack jurisdiction to consider it. Olujoke v.
Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005).
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at 8. That precept applies here. The petitioner's explanation was
hardly compelling, and the IJ was free to credit it or not, as he
thought best.
It makes especially good sense to apply this precept
here. A credible fear interview is designed to "elicit all
relevant and useful information bearing on" the alien's asylum
claim. 8 C.F.R. § 208.30(d). Given that emphasis, the failure to
mention either the bus incident or its sequella is virtually
inexplicable. What we have here is not a simple failure to
recollect a trivial detail. The omitted material comprises the
centerpiece of the petitioner's case.
To cinch matters, the omission at issue here is glaring.
It occurred not only in the credible fear interview, but also in
the petitioner's earlier debriefing. And, finally, it is
impossible to reconcile the late-emerging account of the guerilla
encounter with the petitioner's explicit assurance that she,
personally, had not been involved in any encounters with the
guerillas.
Under these circumstances, we think it clear that the IJ
acted within his proper purview in relying on the omission — which
went to the heart of the petitioner's case — in making an adverse
credibility determination. See, e.g., Lumaj v. Gonzales, 446 F.3d
194, 199 n.6 (1st Cir. 2006) (upholding adverse credibility
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determination that rested, in part, on a material omission during
a credible fear interview).
In an effort to blunt the force of this reasoning, the
petitioner suggests that, at the time of the credible fear
interview, she thought that she would have another opportunity to
give more specific information. She offers no basis for this
belief and, in any event, her suggestion does not explain why, in
reply to a direct question, she denied any personal contact with
the guerillas. On these facts, the IJ was not obligated to credit
this possibility.
In sum, the IJ, who saw and heard the petitioner's
testimony and explanation at first hand, did not believe her. This
adverse credibility determination is supported by specific and
persuasive findings. Consequently, we must honor it. See Olujoke
v. Gonzales, 411 F.3d 16, 21-22 (1st Cir. 2005).
This holding has a domino effect. With the petitioner's
testimony discredited, there is very little other evidence in the
record to support her asylum claim. Certainly, a generalized
threat of violence in a troubled land, fears of reprisal from a
quondam boyfriend, and two affidavits (one stating that she was a
good employee and the other confirming the occurrence of the bus
incident) do not compel a grant of asylum. See, e.g., Amouri v.
Holder, 572 F.3d 29, 34-35 (1st Cir. 2009). Accordingly, we reject
the petitioner's second argument out of hand.
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This brings us to the petitioner's final plaint: that the
BIA impermissibly required governmental action or acquiescence as
a precondition to CAT protection. This argument presents an uphill
climb for the petitioner; the regulation defining "torture" for CAT
purposes appears to require a governmental nexus. See 8 C.F.R.
§ 1208.18(a)(1); see also Amouri, 572 F.3d at 35. But we need not
and do not decide the question. The argument is raised for the
first time in this court and is, therefore, unexhausted. Thus, we
lack jurisdiction to consider it. See Sela v. Mukasey, 520 F.3d
44, 47 (1st Cir. 2008); Olujoke, 411 F.3d at 22-23.
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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