[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-13631 FILED
Non-Argument Calendar U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 19, 2010
JOHN LEY
Agency No. A094-925-359 ACTING CLERK
MARTHA MONTES-CHAVARRIA,
a.k.a. Martha Lorena Montes-Chavarria,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 19, 2010)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Martha Montes-Chavarria, through counsel, appeals the Board of Immigration
Appeals’ (“BIA”) denial of her application for asylum and withholding of removal
under the Immigration and Nationality Act (“INA”) and the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”). Montes-Chavarria argues that: (1) the BIA erred in deciding
that the Immigration Judge (“IJ”) did not commit clear error in making an adverse
credibility determination against her; and (2) the IJ erred in finding that she did not
establish countrywide persecution because she showed past persecution by Martha
Baez, a Nicaraguan police officer. After careful review, we deny the petition.
We review the BIA’s decision as the final judgment, unless the BIA expressly
adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007).
Here, the BIA issued its own opinion, upholding the IJ’s adverse credibility
determination, denial of asylum, withholding of removal, and CAT relief, so we only
review the BIA’s decision.
We review the BIA’s factual determinations, including credibility
determinations, under the highly deferential substantial evidence test, which requires
us to view “the record evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft,
386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). 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 v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
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2001) (quotation omitted). We will not engage in a de novo review of the BIA’s
factual findings. Adefemi, 386 F.3d at 1027. In sum, findings of fact made by the
BIA “may be reversed by this [C]ourt 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 of the administrative findings.” Id.
First, we are unpersuaded by Montes-Chavarria’s claim that the BIA erred in
deciding that the Immigration Judge (“IJ”) did not commit clear error in making an
adverse credibility determination against Montes-Chavarria because her testimony
was “plausible, coherent, sufficiently detailed, internally consistent, and consistent
with her asylum application,” and with the country report on Nicaragua. The BIA
must offer specific and cogent reasons for an adverse credibility finding. Forgue v.
U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). The applicant has the burden
to show that the BIA’s “credibility decision was not supported by specific, cogent
reasons or was not based on substantial evidence.” Id. (internal quotation omitted).
“A credibility determination, like any fact finding, may not be overturned unless the
record compels it.” Id. (internal quotation 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). Pursuant to 8 U.S.C.
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§ 1158(b)(1)(B)(iii), as amended by the REAL ID Act § 101(a)(3), a credibility
determination may be based on “any inaccuracies or falsehoods in [the applicant’s]
statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes
to the heart of the applicant’s claim, or any other relevant factor.” Chen v. U.S. Att’y
Gen., 463 F.3d 1228, 1233 (11th Cir. 2006) (emphasis omitted). Generally, tenable
explanations for implausibilities in an applicant’s testimony will not compel a
reasonable fact finder to reverse a credibility determination, especially if
corroborating evidence is absent. Id.; see 8 U.S.C. § 1158(b)(1)(B)(ii) (providing that
if the trier of fact determines an asylum applicant is not credible, the trier of fact can
determine that the applicant should provide corroborating evidence); 8 U.S.C. §
1231(b)(3)(C) (providing the same for withholding of removal claims).
The Attorney General or Secretary of Homeland Security has discretion to
grant asylum if the alien meets the definition of “refugee,” as defined by 8 U.S.C. §
1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A “refugee” includes any person who is
unwilling to return to, and is unable or unwilling to avail herself of the protection of,
the country of her nationality where she last habitually resided, because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion. 8 U.S.C.
§ 1101(a)(42)(A). The asylum applicant carries the burden of proving her statutory
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“refugee” status, thereby establishing asylum eligibility. Al Najjar, 257 F.3d at 1284.
“To establish asylum [eligibility] based on past persecution, the applicant must prove
(1) that she was persecuted, and (2) that the persecution was on account of a protected
ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.2006). “To
establish eligibility for asylum based on a well-founded fear of future persecution, the
applicant must prove (1) a subjectively genuine and objectively reasonable fear of
persecution that is (2) on account of a protected ground.” Id. (internal quotation and
citation omitted). A showing of past persecution creates a rebuttable presumption of
a well-founded fear of future persecution. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1231 (11th Cir. 2005).
To qualify for withholding of removal under the INA, an alien must show that
if returned to her country, the alien’s life or freedom would be threatened on account
of race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1231(b)(3). If a petitioner is unable to meet the standard of proof
for asylum, she is generally precluded from qualifying for withholding of removal.
Al Najjar, 257 F.3d at 1292-93.
To qualify for CAT relief, an applicant must meet standards more stringent
than those for asylum eligibility. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d
884, 891 (11th Cir. 2007). The applicant carries the burden of proof to establish “that
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it is more likely than not that he or she would be tortured if removed to the proposed
country of removal.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1239 (11th
Cir. 2007) (quoting 8 C.F.R. § 208.16(c)(2)) (internal quotations omitted).
As the record shows, the BIA provided specific, cogent reasons for its adverse
credibility determination. Montes-Chavarria’s testimony before the IJ that she had
suffered past persecution and feared future persecution by Baez due to political
opinion was inconsistent with statements she made to Customs and Border Protection
(“CBP”) agents shortly after being apprehended that she (1) did not fear persecution
or torture if she returned to Nicaragua, and (2) had traveled to the United States to
work. Montes-Chavarria’s claim before the IJ that Baez targeted her because of her
political opinion also was contrary to her statements at her asylum interview, in which
she said she was targeted by Baez primarily because of a property dispute. Prior to
filing her asylum application, Montes-Chavarria had not alleged that Baez, or anyone
else, had targeted her for political reasons, such as opposing the Sandinista regime or
being an activist for the Nicaraguan Liberal Alliance (“NLA”).
Montes-Chavarria’s only explanation proffered for the inconsistencies between
her allegations in her asylum application and at the hearing, as compared with her
prior statements to the CBP agents and at the asylum interview, was that she did not
recall being asked questions about persecution or torture by the CBP agents, did not
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recall saying that she did not suffer persecution, and was not given sufficient time to
discuss her political problems with Baez during the asylum interview. However,
these explanations do not compel us to reverse the BIA’s determination that Montes-
Chavarria lacked credibility.
Moreover, even if Montes-Chavarria could provide a tenable reason for the
inconsistencies, she failed to present any corroborating evidence of her political
affiliation with the NLA, of her mother’s opposition to the Sandinistas, or that she
had been threatened on either basis. Montes-Chavarria also failed to present any
evidence that Baez was employed as a police officer, or that she was threatened by
her stepmother for political reasons. Therefore, substantial evidence supports the
BIA’s determination that Montes-Chavarria’s testimony was not credible. See Chen,
463 F.3d at 1233.
We also reject Montes-Chavarria’s argument that the IJ erred in finding that
she did not establish countrywide persecution because she showed past persecution
by Baez, a government police officer, indicating that countrywide persecution should
have been assumed. In deciding whether to uphold a BIA’s administrative decision,
we are limited to the grounds on which the BIA relied. See NLRB v. U.S. Postal
Serv., 526 F.3d 729, 732 n.2 (11th Cir. 2008); Kwon v. INS, 646 F.2d 909, 916 (5th
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Cir. May 4, 1981) (en banc).1 The BIA is expected to apply its expertise first, subject
to our review, and we ordinarily will not reach a question that the BIA declined to
address. See Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006); INS v. Ventura, 537
U.S. 12, 16 (2002).
Because the BIA declined to address Montes-Chavarria’s countrywide
persecution argument, her claim on this point is not properly before us and we will
not reach this question.
PETITION DENIED.
1
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
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