[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
January 7, 2010
JOHN LEY
No. 09-11277 ACTING CLERK
Non-Argument Calendar
________________________
Agency Nos. A079-476-010
A079-476-011
WILLIAM FABIO BOTERO CORREA,
OLGA LUCIA VALENCIA BUENO,
JULIANA BOTERO VALENCIA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 7, 2010)
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Dr. William Fabio Botero Correa, his wife Olga Lucia Valencia Bueno, and
their daughter Juliana Botero Valencia are natives and citizens of Colombia. They
seek review of the Board of Immigration Appeal’s decision affirming the
Immigration Judge’s order finding them removable and denying their application
for asylum, withholding of removal, and CAT relief.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA agreed with the IJ’s adverse
credibility findings, it conclusions about the petitioners’ ineligibility for asylum,
withholding of removal, and CAT relief, but the BIA also made some additional
observations. Therefore, we will review both decisions.
The IJ’s and BIA’s factual determinations are reviewed under the substantial
evidence test, and we will affirm the BIA’s decision “if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal
quotations and citations omitted). In order to reverse those findings of fact, we
“must find that the record not only supports reversal, but compels it.” Mendoza v.
U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
I.
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The petitioners contend that the IJ and the BIA erred in making adverse
credibility determinations about Botero’s testimony.1 They argue that the IJ
ignored testimony and documentation in the record that provided an explanation
for any discrepancies.
The trier of fact must determine credibility, and we do not substitute our
judgment for the factfinder’s with respect to credibility findings. D-Muhumed v.
U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). “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.” Forgue, 401 F.3d at 1287 (citations omitted). “[A]n adverse
credibility determination alone may be sufficient to support the denial of an asylum
application” when there is no other evidence of persecution. Id. “The weaker the
applicant’s testimony, . . . the greater the need for corroborative evidence.” Yang
v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).
Botero’s testimony included inconsistencies and omissions that were central
to the claims of persecution and that were not adequately explained. In particular
the IJ emphasized the fact that Botero’s original May 2001 asylum application
made no mention of an alleged kidnapping that he later described in an addendum
to his application filed more than six years later. In his original application Botero
1
Botero was the only one of the petitioners to testify at the removal hearing.
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stated that he and his family had received threatening phone calls. The
unidentified callers threatened to harm his daughters and his wife and to burn two
farms that he owned. The callers had tried to extort money from him.
In the 2007 addendum, however, Botero stated that in June 2000 while
driving home from work he had been stopped by four armed men who were
blocking the road. The men knew he was a doctor, and they kidnapped him, taking
him to a place where he was forced to administer medical treatment to a wounded
FARC guerrilla. After providing treatment to the guerilla, Botero was escorted out
of the area, and he returned home. Threatening phone calls and demands for
money followed. Guerillas visited his farms, made threats, and told the farm
caretaker that he should relay the message to Botero to pay them the money they
demanded.
The IJ found it noteworthy that this significant event was omitted from the
original asylum application. He explained that Botero had an obligation to ensure
that the information in the application, which he had signed under oath, was
accurate. The IJ also found that Botero’s testimony about the kidnapping was not
substantiated by corroborating evidence. See Yang, 418 F.3d at 1201. Botero
testified that he called a district attorney and reported the kidnapping, but the IJ
observed that there was no letter from the district attorney, and the other letters
submitted as evidence only referred to general problems and threats experienced by
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Botero. The police report that Botero submitted as evidence did not mention
FARC or a kidnapping. Just like Botero’s original asylum application, the police
report referred to extortion demands and threats made over the phone.2
Based on the inconsistencies in his testimony and the lack of a plausible
explanation for the omissions in his original asylum application, the IJ found that
Botero was not credible. The BIA agreed. Substantial evidence in the record
supports the adverse credibility determination and the denial of the petitioners’
application for asylum. See Forgue, 401 F.3d at 1287. The record does not
compel a reversal of the BIA’s decision.
Because the petitioners have failed to establish a claim of asylum on the
merits, they necessarily have failed to establish eligibility for withholding of
removal. Id. at 1288 n.4. The petitioners have waived any claim for CAT relief by
failing argue for it in their brief to this Court. See Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.1989).
2
The BIA correctly determined that even if Botero’s testimony were considered credible,
he had failed to establish that the alleged mistreatment he had suffered rose to the level of past
persecution. See Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
(concluding that a restaurant bombing, menacing telephone calls, and threats did not rise to the
level of past persecution that would compel reversal). The BIA also correctly determined that
Botero had not established a well-founded fear of future persecution because he had not shown
that he was singled out for persecution based on a statutorily protected ground. See id. at 1232
n.7 (stating that the petitioner’s “inability to demonstrate she has a well-founded fear that she
will be singled out for persecution on account of any protected ground is fatal to her asylum
claim”).
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II.
The petitioners also contend that the IJ should have continued the removal
proceedings. They assert that Botero’s brother has filed a I-130 visa petition on his
behalf, which is still pending, and when Botero’s daughter Andrea becomes a
United States citizen, she will file one as well. In the removal hearing, counsel for
the petitioners told the IJ about the I-130 petition that Botero’s brother had filed.
The IJ found that the I-130 petition was irrelevant to the asylum claim.
The petitioners did not request a continuance before the IJ and did not argue
before the BIA that one should have been granted. Therefore, that claim was not
exhausted, and we lack jurisdiction to consider it. Al Najjar, 257 F.3d at 1285 n.14
(“[W]e are divested of jurisdiction to consider a claim which was not presented to
the immigration courts. . . .”).
PETITION DENIED in part, DISMISSED in part.
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