[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16171 August 18, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA Nos. A95-255-652
A95-255-602
MARTHA C. VELEZ-HOYOS,
GUSTAVO ADOLFO ARANGO-CANO,
ERIKA M. ARANGO-VELEZ,
MANUELA ARANGO-VELEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
___________________
Petition for Review of a Decision of
the Board of Immigration Appeals
____________________
(August 18, 2005)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Martha Cecilia Velez Hoyos (Martha), Gustavo Adolfo Arango Cano
(Gustavo), Erika Arango Velez (Erika), and Manuela Arango Velez (Manuela)
petition for review of the Board of Immigration Appeals’ (BIA’s) dismissal of
their appeal of the immigration judge’s (IJ’s) removal order, finding there was “no
clear error in the [IJ’s] adverse credibility finding.”
Petitioners argue the BIA erred by denying their application for asylum and
withholding of removal, and claim they presented substantial evidence they
suffered past persecution from the Revolutionary Armed Forces of Colombia
(FARC) on account of their political opinion. Petitioners further argue they
established a well-founded fear of future persecution, because they claim the
FARC have “explicitly” indicated their intent to kill them if they return to
Colombia. We deny their petition.
I. DISCUSSION
“The BIA’s factual determinations are reviewed under the substantial
evidence test, and this court must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” D-Muhumed v. United States Attorney Gen., 388 F.3d 814, 817–18 (11th
Cir. 2004) (internal quotations and citation omitted). “Credibility determinations
likewise are reviewed under the substantial evidence test.” Id. at 818. “The trier
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of fact must determine credibility, and this court may not substitute its judgment
for that of the BIA with respect to credibility findings.” Id.
The asylum applicant carries the burden of proving statutory “refugee”
status and thereby establishing asylum eligibility. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Uncorroborated but credible testimony may be
sufficient to sustain the burden of proof for demonstrating eligibility for asylum
and withholding of removal. 8 C.F.R. §§ 208.13(a), 208.16(b). The weaker an
applicant’s testimony, however, the greater the need for corroborative evidence.
In re Y-B-, 21 I. & N. Dec. 1136, 1139 (BIA 1998). An IJ’s adverse credibility
determination alone may be sufficient to support the denial of an asylum
application. D-Muhumed, 388 F.3d at 819. The BIA should provide “cogent
reasons for [its] credibility determination,” and such reasons should be “supported
by substantial evidence in the record much like any factual determination.” Id.
(citations and internal quotations omitted).
To obtain withholding of removal under the Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT)
implementing regulations, a petitioner bears the burden of establishing he “more
likely than not” would be tortured upon his return to the proposed country of
removal. 8 C.F.R. § 208.16(c)(2). “Torture” is defined as:
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[A]ny act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as
obtaining from him or her or a third person information or a
confession, punishing him or her for an act he or she or a third person
has committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1). “Torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or degrading
treatment or punishment that do not amount to torture.” Id. at § 208.18(a)(2).
In their appeal, Petitioners do not directly challenge the BIA’s adverse
credibility determination, and consequently waive that issue. Sepulveda v. United
States Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an
appellant fails to offer argument on an issue, that issue is abandoned.”). Instead,
they argue they provided substantial evidence establishing past persecution and a
well-founded fear of future persecution. The BIA’s adverse credibility finding,
however, was dispositive of Petitioners’ claims. Accordingly, this Court can deny
the petition based upon the unchallenged credibility finding.
Regardless, substantial evidence supports the BIA’s adverse credibility
finding. See D-Muhumed, 388 F.3d at 819. As noted by the BIA: (1) Martha
testified that her involvement with a gubernatorial campaign began in 1999, but
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later claimed her involvement began in June 2000; (2) Martha and Gustavo
testified that he received two threatening telephone calls from the FARC in
October 1999, but Martha’s asylum application stated he received two anonymous
threatening notes; (3) Martha’s application stated they never found out who
attacked Gustavo or why, but she testified the FARC attacked Gustavo because of
her and Gustavo’s political activities; (4) Martha and Gustavo testified that two
individuals attacked him in December 1999, but a witness’s affidavit indicated
Gustavo was attacked by three individuals; and (5) Gustavo testified that the men
who attacked him did not steal his bicycle, but a witness’s affidavit stated
Gustavo’s bicycle was stolen. Moreover, although Martha stated in her asylum
application that she owned a boutique from September 1994 through May 1997,
and was “self-employed,” “selling different items,” from May 1997 through
August 2001, she testified that she owned the boutique until she left Colombia.
Furthermore, Martha’s application lists two witnesses as the neighbors who
brought Gustavo home after he was allegedly attacked, but she testified it was
those two witnesses and a third witness, who, according to his affidavit, witnessed
the incident. The number and type of discrepancies support the BIA’s adverse
credibility finding.
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If an applicant “is unable to meet the well-founded fear standard for asylum,
he is generally precluded from qualifying for either asylum or withholding of
deportation.” Al Najjar, 257 F.3d at 1292–93 (quotations omitted). Because
Petitioners failed to meet the lower standard of proof to show they were qualified
for asylum, they did not establish they were entitled to withholding of removal,
which has a higher burden of proof. Thus, the IJ did not err in denying their
request for withholding of removal.
II. CONCLUSION
Petitioners failed to challenge the BIA’s adverse credibility finding, which
was supported by substantial evidence and dispositive of the petitioners’ claims.
Since Petitioners failed to meet the lower standard of proof to show they were
qualified for asylum, they also failed to meet the standard of proof to show they
were entitled to withholding of removal. Accordingly, we deny their petition.
PETITION DENIED.
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