[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 10, 2005
No. 04-13551
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A76-526-300 and A76-526-302
MARIA AMPARO PEREZ DE HINCAPIE,
SANTIAGO PEREZ HINCAPIE, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 10, 2005)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Maria Amparo Perez de Hincapie, Santiago Perez Hincapie, and Jhon Henry
Hincapie, through counsel, petition for review of the final order of the Board of
Immigration Appeals (“BIA”) summarily affirming the decision of the immigration
judge (“IJ”) finding that Hincapie’s testimony was not credible and denying
Hincapie’s 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”).1 Because Hincapie’s removal proceedings commenced after 1 April
1997, the permanent rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996)
(“IIRIRA”), govern her petition for review.
Substantial evidence supports the IJ’s finding that Hincapie’s testimony was
not credible because her testimony was materially inconsistent with her asylum
application, her “credible-fear” interview, and other evidence. Additionally, the IJ
did not err in finding that the evidence failed to establish a well-founded fear of
persecution, because Hincapie’s additional evidence would not compel a
reasonable factfinder to find that the requisite fear of persecution exists. Moreover,
1
Maria Hincapie is the primary applicant. Her son and grandson are derivative
applicants and, therefore, rely on Hincapie’s asylum application. Accordingly, we refer to
Hincapie and her claims for relief.
2
Hincapie has not challenged on appeal of the IJ’s finding that she did not show that
relocation within Colombia was not possible. Accordingly, the petition is
DENIED.
I. BACKGROUND
On 1 December 2000, Hincapie, a native and citizen of Colombia, attempted
to enter the United States with her son and grandson without presenting any valid
entry documents. According to a record of a sworn statement given on the day of
her arrival, Hincapie attested that she came to the United States because she was
afraid of living in Colombia. She stated that she would be harmed by the guerillas
if she was returned to her home country, because they thought that she was an
informant and had threatened the lives of her and her family. She further stated
that she did not work outside the home, but that she did some sewing.
In December 2000, the Immigration and Naturalization Service (“INS”)
issued a notice to appear (“NTA”) to Hincapie, charging her with removability
under the INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), for seeking to
procure a visa, other documentation, or admission into the United States by fraud
or willfully misrepresenting a material fact, and under INA § 212(a)(7)(A)(i)(I), for
failing to possess a valid unexpired immigrant visa, reentry permit, border crossing
card, or other valid entry document required by the INA. Hincapie submitted to a
3
credible fear interview, in which she attested that, in Colombia, she owned a store
where she prepared and sold food. She stated that she was threatened at the store,
where she received a letter that said she had informed the military about the
guerillas. She further stated that she had not informed the military about the
guerillas’ activities. The asylum officer found that Hincapie established a credible
fear of persecution on account of her imputed political opinion.
On 31 October 2001, Hincapie submitted a claim for asylum and
withholding of removal, alleging persecution on account of her political opinion
and membership in a particular social group. In the application, Hincapie stated
that the National Liberation Army (“ELN”) threatened her because they believed
that she gave information about the guerillas, which she had overheard during their
conversations at the store (“kiosko”), to the paramilitary. She further stated that
neither she nor any of her family had given this information to the paramilitary,
because it would have been too dangerous.
To supplement her application, Hincapie submitted letters from Jesus
Helmes Suescun and Luis Eduardo Lopez, customers of the store who stated that
Hincapie had confided in them regarding the threats she had received, and a letter
from Gloria Cruz Lozada, which stated that Hincapie had worked for three months
at a store in the Jamundi area.
4
The government submitted copies of round-trip tickets from Cali to Orlando
for Hincapie, Jhon, and Santiago. In addition, the government submitted copies of:
(1) Hincapie’s passport, issued 5 July 1999; (2) Hincapie’s visa, issued April 2000;
(3) Jhon’s passport, issued 5 July 1999; (4) Jhon’s visa, issued April 2000;
(5) Santiago’s passport, issued 1 August 2000; and (6) Santiago’s visa, issued
October 2000.
At a hearing on Hincapie’s asylum application, Hincapie testified that she
thought her visa was good. She testified that she made lingerie and worked at a
stand where she prepared food. She further testified that she left Colombia after
receiving threatening letters from the ELN. Hincapie stated that she overheard
guerillas planning an attack, and four or five days later received an envelope
containing a threatening letter. She further stated that she did not inform the
police, but that she had informed the military. After receiving another threat two
weeks later, she locked up the store and returned home. She testified that she
received a telephone call from the ELN a few days later, so she decided to leave.
According to Hincapie, she did not tell the immigration officer that she had
informed the army because she was frightened and had too many problems on her
mind. She stated that she had informed the military about the guerillas’ plans, but
had not told them of the threats.
5
On cross-examination, Hincapie testified that she had not stated on her
application for asylum that she had informed the military about the guerillas’ plans
because it escaped her mind. She further testified that she obtained her passport
and Jhon’s passport in November 2000, and, when asked why the issue date on her
passport stated May 1999 and Jhon’s was August 2000, she replied, “[t]hat’s
strange.” Administrative Record (“AR”) at 102. She stated that she flew into
Orlando so that she could take her grandson to Disney World. In response to
questions from the IJ, Hincapie testified that she was not intending to return to
Colombia when she left, and that she bought round-trip tickets because “one didn’t
know what could happen.” AR at 111-12.
The IJ denied Hincapie’s application for asylum and withholding of removal
and sustained allegation three of the NTA as well as the fraud charge. The IJ
found that Hincapie’s claim that she was not aware that the visas and passports
were fraudulent was not believable. The IJ found that Hincapie’s testimony
regarding when she obtained the passports was inconsistent, because she stated that
she received them in November 2000, while the passport of Hincapie and Jhon
reflect an issuance date of 5 July 1999, and Santiago’s passport reflects an issuance
date of 1 August 2000. The IJ further found that Hincapie was “equivocal” in her
testimony as to whether she intended to return to Colombia because she, Jhon, and
6
Santiago had round-trip tickets from Cali to Orlando. AR at 38-39. According to
the IJ, Hincapie failed to establish past persecution or a well-founded fear of
persecution. The IJ found that Hincapie’s testimony was not credible because it
was materially inconsistent regarding whether she had informed the Colombian
military of the ELN guerillas’ plans—in her credible fear interview and asylum
application she stated that she had not, but during her asylum testimony she stated
that she had. The IJ further found that Hincapie stated during her credible fear
interview that guerillas had threatened her, but in her asylum application and
testimony she claimed that she was threatened by ELN guerillas. The IJ found that
Hincapie’s claims of operating the store were not credible because she told the
immigration inspector that she did not work outside the home. According to the IJ,
Hincapie also failed to show that she could not live elsewhere in Colombia.
Hincapie appealed to the BIA, arguing that the IJ erred in determining that
Hincapie lacked credibility, because her inconsistent statements were not material
to the asylum claim. She contended that her testimony showed past persecution
and fear of future persecution based on political opinion. The BIA summarily
affirmed the IJ’s decision, pursuant to 8 C.F.R. § 1003.1(e)(4). This petition for
review followed.
7
Hincapie argues on appeal that the IJ erred in finding that she failed to
establish a well-founded fear of persecution because she showed that she feared
future persecution by the ELN based on an imputed political opinion through her
application for asylum, supporting documentation, and testimony. She further
contends that the IJ erred in determining that her testimony was not credible,
because federal courts have held that credibility does not turn on whether someone
has presented a fraudulent document at the border when fleeing persecution. She
asserts that the discrepancy caused by the issue dates of the passports and her
testimony should not have been considered because the passports were not
obtained from the embassy. She argues that her failure to state in her credible fear
interview that she informed the military of the impending guerilla attack, as she
stated in her testimony, should not be a basis for an adverse credibility
determination because the discrepancy was minor and the interview was very brief.
When the BIA does not render its own opinion but rather adopts the IJ’s
opinion, then we review the IJ’s decision. D-Muhumed v. United States Att’y
Gen., 388 F.3d 814, 818 (11th Cir. 2004). Legal determinations are reviewed de
novo. Id. at 817. Factual determinations, including credibility determinations, are
reviewed under the substantial evidence test, and we “‘must affirm the [] decision
if it is supported by reasonable, substantial, and probative evidence on the record
8
considered as a whole.’” Id. at 817-18. Under this highly deferential standard of
review, a denial of asylum may be reversed only if the evidence would compel a
reasonable factfinder to find that the requisite fear of persecution exists. INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n.1, 112 S.Ct. 812, 815 & n.1 (1992).
“Credibility determinations likewise are reviewed under the substantial-evidence
test.” D-Muhumed, 388 F.3d at 818.
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error.
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General
(“AG”) has discretion to grant asylum if the alien meets the INA’s definition of a
“refugee.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country 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) (emphasis added). “The asylum applicant carries the
burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818.
9
Uncorroborated but credible testimony alone from the applicant may be
sufficient to sustain the burden of proof for asylum. 8 C.F.R. § 208.13(a).
“Conversely, an adverse credibility determination alone may be sufficient to
support the denial of an asylum application.” Forgue v. United States Att’y Gen.,
401 F.3d 1282, 1287 (11th Cir. 2005). “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.” Id. “Of course, an adverse credibility determination does not alleviate
the IJ’s duty to consider other evidence produced by an asylum applicant. That is,
the IJ must still consider all evidence introduced by the applicant.” Id.
Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishment as the
applicant repeatedly recounts his story. See In re B-, 21 I & N Dec. 66, 70 (BIA
1995). The weaker the applicant’s testimony, the greater the need for
corroborative evidence. See In re Y-B-, 21 I & N Dec. 1136, 1139 (BIA 1998).
Moreover, an adverse credibility finding must go to the “‘heart of the asylum
claim,’” and not be based on minor discrepancies, inconsistencies, or omissions.
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002); see also Pop v. INS, 270 F.3d
527, 531 (7th Cir. 2001) (failure to list every incident of persecution should not
10
result in credibility challenges). Additionally, if the IJ provides specific examples
of vague, inconsistent, and implausible statements by the alien, and the alien does
not provide corroborating evidence to bolster the weaknesses in his testimony, an
adverse credibility finding is supported by substantial evidence. See Chebchoub v.
INS, 257 F.3d 1038, 1042-44 (9th Cir. 2001).
Hincapie’s argument on appeal that the date on the passports should not be
considered because she did not obtain them from the embassy is contradicted by
her testimony that she obtained the passports legally in November 2000. This
testimony was inconsistent with the evidence because her passport and Jhon’s
passport were issued on 5 July 1999, and Santiago’s passport was issued on 1
August 2000. In addition to this inconsistency, the IJ’s adverse credibility finding
is supported by additional inconsistencies in Hincapie’s testimony: (1) she stated
that she did not intend to return to Colombia, but had purchased three round-trip
tickets from Cali to Orlando; (2) she testified that she left Colombia because of
threatening letters from the ELN, but she also testified that she came to Orlando to
take her grandson to Disney World; (3) she stated that she had informed the
Colombian military of the ELN guerillas’ plans, but in her “credible-fear”
interview and asylum application she stated that she had not; and (4) she claimed in
her “credible-fear” interview, asylum application, and asylum hearing testimony
11
that she operated a store, but told the immigration inspector that she did not work
outside the home. Although Hincapie provided corroborating evidence to support
her claims of receiving threats while working in the Kiosko—the unsworn letters
from customers and the owner of the Kiosko—this evidence does not affect the
other inconsistencies in her testimony, which go to the heart of her claim. See
Chebchoub, 257 F.3d at 1042-44; Gao, 299 F.3d at 272. Thus, the IJ’s adverse
credibility finding was supported by “‘specific, cogent reasons’”—Hincapie’s
testimony contained internal inconsistencies and was contradicted by the
evidence—and substantial evidence. See Forgue, 401 F.3d at 1287; D-Muhumed,
388 F.3d at 817-18. Moreover, consideration of the additional evidence presented
by Hincapie—the unsworn letters—do not compel a reasonable factfinder to
conclude that a well-founded fear of future persecution exists, especially in light of
the other record evidence contradicting Hincapie’s asylum claim, such as the
passport dates and round-trip tickets. See Forgue, 401 F.3d at 1287;
Elias-Zacarias, 502 U.S. at 481 & n.1, 112 S.Ct. at 815 & n.1. Therefore, the IJ’s
denial of asylum was supported by substantial evidence.
III. CONCLUSION
Substantial evidence supports the IJ’s finding that Hincapie’s testimony was
not credible because her testimony was materially inconsistent with her asylum
12
application, her “credible-fear” interview, and other evidence. Morever, the IJ did
not err in finding that the evidence failed to establish a well-founded fear of
persecution, because Hincapie’s additional evidence would not compel a
reasonable factfinder to find that the requisite fear of persecution exists.
Accordingly, the petition is DENIED.
13