[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 27, 2006
No. 06-12688 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A97-626-434
A97-626-435
JULIO CESAR MONTES GARCIA,
OLGA LUCIA DUQUE LLANO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 27, 2006)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
I.
Julio Cesar Montes Garcia (“Garcia”), on behalf of himself and his wife
Olga Lucia Duque Llano, petitions this court for review of the Board of
Immigration Appeals’s (“BIA”) affirmance of the Immigration Judge’s (“IJ”) order
of removal and denial of asylum and withholding of removal.
Garcia, a native and citizen of Colombia, was admitted to the United States
on an immigrant visa in September 1998 and remained beyond the expiration
period. His wife was admitted in April 2000 and also remained beyond the
expiration period of her visa. The Immigration and Naturalization Service
(“INS”)1 then issued notices to appear in March 2004, charging them with
removability for having remained in the United States longer than permitted.
Immigration and Nationality Act § 237(a)(1)(B); 8 U.S.C. § 1227(a)(1)(B).
In August 2003, prior to the INS issuing notices to appear, Garcia filed an
asylum application alleging that he had been persecuted based on his political
activities and membership in a social group. Garcia indicated that he had been
active in a political campaign, the candidate for whom he had worked had been
killed, and members of his wife’s family had been threatened and kidnaped by
1
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107-296, Stat. 2125. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new
department.
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members of the Revolutionary Armed Forces of Colombia (“FARC”). Garcia
admitted that this asylum application was untimely, but argued that changes in
Colombia should excuse the delay.
At the removal hearing, the IJ expressed concern that Garcia’s asylum
application had been prepared by Excaliber Translations, Inc. (“Excaliber”), a
service the judge described as having previously filed applications with the court
that were highly suspect. As some of the applications from Excaliber had
previously been withdrawn after the petitioners had spoken with counsel, the IJ
wanted to give Garcia a chance to amend his application if necessary. In response,
Garcia moved the IJ to recuse himself based on bias. The IJ denied the motion.
Also at the removal hearing, Garcia conceded removability. He then
testified that in Colombia he had been active in the Liberal Party for over fifteen
years and had participated in health brigades and education programs. He also
discussed his involvement in a mayoral campaign in 1997, after which the
candidate had been killed. As a result of his activities, Garcia testified that he was
threatened by members of the FARC. Though Garcia admitted he was never
harmed by the FARC, he stated that he was afraid they would kidnap or kill him.
Garcia also told the IJ that a few months before coming to the United States in
1998 he received calls from members of the FARC in which the callers claimed
responsibility for killing the mayoral candidate and threatened that the same thing
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would happen to him if he did not leave Colombia.
Garcia explained in the removal hearing that he did not file an asylum
application until 2003 because he had waited and hoped that the conditions in
Colombia would change. Garcia also stated that in May 2002 his wife’s cousin
was kidnaped by FARC. When asked why, after the events of 2002, he waited
until August 2003 to file his asylum application, Garcia testified that it took time to
find someone to help him make the filing.
The IJ denied relief and rejected Garcia’s motion to recuse. In doing so, the
IJ stated that he had not prejudged the case or shown any prejudice by informing
Garcia that there had been problems with Excaliber. The IJ also noted that the
proceedings were not rendered fundamentally unfair by his comments. The IJ then
found Garcia’s asylum application untimely and rejected his excuses of changed
circumstances and lack of knowledge of the process. While this determination
meant Garcia’s asylum application would be denied as a matter of law, the IJ also
found that it would have nevertheless been denied on the facts as presented. First,
the IJ found that Garcia lacked credibility based on his demeanor, the vague and
general nature of his testimony, and the omitted events and inconsistencies with
regard to his testimony. Second, the IJ determined that Garcia had not established
a country-wide fear. Finally, the IJ found that Garcia failed to provide sufficiently
detailed, believable, and consistent testimony to establish past persecution or a well
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founded fear of future persecution. The IJ then concluded that because Garcia’s
application for asylum would have been denied on the facts, he failed the heavier
showing required to grant withholding. The IJ also denied protection under the
Convention Against Torture (“CAT”). Finally, the IJ found that Garcia’s
application was frivolous and fraudulent.
Petitioners appealed to the BIA. The BIA concluded that Garcia was not
denied a constitutionally fair hearing as a result of the IJ’s refusal to recuse
himself. The BIA further found that the asylum application was untimely and there
were no changed circumstances to excuse the delay. The BIA agreed with the IJ’s
credibility determination based on the IJ’s conclusions regarding Garcia’s
demeanor and his implausible and questionable testimony. The BIA also affirmed
the IJ’s decision to deny withholding of removal.2 With regard to the IJ’s
determination of frivolousness, however, the BIA reversed, finding that there was
insufficient evidence. Petitioners then initiated this petition for review.
II.
Garcia argues that the removal hearing was fundamentally unfair because
the IJ was predisposed to deny relief and to find Garcia lacked credibility. A Fifth
Amendment due process challenge to an immigration proceeding is reviewed de
novo. Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir. 2003). Recusal is
2
Petitioners did not appeal the IJ’s denial of relief under CAT to the BIA.
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warranted if it is shown that “the immigration judge had a personal, rather than
judicial, basis stemming from an ‘extrajudicial’ source which resulted in an
opinion on the merits on some basis other than what the immigration judge learned
from his participation in the case.” Matter of Exame, 18 I&N Dec. 303, 306 (BIA
1982). Recusal is also appropriate where “such pervasive bias and prejudice is
shown by otherwise judicial conduct as would constitute bias against a party.” Id.
However, as the Supreme Court has explained, “opinions formed by the judge on
the basis of facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or antagonism that
would make fair judgement impossible.” Liteky v. United States, 510 U.S. 540,
555 (1994). Here, nothing in the record requires the IJ’s recusal. The IJ merely
expressed concern over previous applications submitted by Excaliber in other cases
and advised Garcia to discuss the issue with his counsel. This situation did not rise
to the level of bias or prejudicial conduct and, accordingly, there was no
fundamental unfairness in the proceeding.
Next, Garcia argues that this court has jurisdiction to consider whether his
application was timely and whether any exceptions exist to permit an untimely
application. Garcia also argues that the IJ was in error in determining that the facts
did not fall within the definition of changed or extraordinary circumstances.
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Questions of subject-matter-jurisdiction are also reviewed de novo. Gonzalez-
Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). An asylum
application must be “filed within 1 year after the date of the alien’s arrival in the
United States.” 8 U.SC. § 1158(a)(2)(B). Here, there is no dispute that Garcia
arrived in 1998 and did not file his application until 2003. Thus, as Garcia
concedes, his application was untimely. Under 8 U.S.C. § 1158(a)(2)(D), however,
an untimely asylum application may be considered if the alien can demonstrate
extraordinary circumstances relating to the delay in filing an application within the
one-year period. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5). However,
“[n]o court shall have jurisdiction to review any determination of the Attorney
General under [section 1158(a)(2)].” 8 U.S.C. § 1158(a)(3). As such, “§
1158(a)(3) divests [this court] of jurisdiction to review a decision regarding
whether an alien complied with the one-year limit or established extraordinary
circumstances that would excuse his untimely filing.” Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); Fahim v. U.S. Att’y Gen., 278 F.3d
1216, 1217-18 (11th Cir. 2002). Despite this court’s retention of jurisdiction to
review constitutional claims or questions of law, timeliness of an asylum claim is
not a constitutional question or question of law. Chacon-Botero v. U.S. Att’y
Gen., 427 F.3d 954, 957 (11th Cir. 2005). Although Garcia argues that he is
challenging the IJ’s legal determinations regarding whether this situation fits
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within the context of a changed circumstance, he is actually challenging the IJ’s
factual findings. Therefore, this court lacks jurisdiction over the asylum claim and
should dismiss the petition as to this ground.
Garcia then argues that he is entitled to withholding. 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). To the extent the BIA’s or IJ’s decisions were based on a legal
determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-
48 (11th Cir. 2001). The BIA’s factual determinations are reviewed under the
substantial evidence test, and we must affirm if the decision “is supported by
reasonable, substantial, and probative evidence on the record as a whole.” Al
Najjar, 257 F.3d at 1283-84. The IJ’s factual determinations, however, are
reviewed under the “highly deferential substantial evidence test,” which requires us
to “view the record in the light most favorable to the [IJ’s] decision and draw all
reasonable inferences in favor of that decision.” Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1255 (11th Cir. 2006); Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th
Cir. 2004) (en banc), cert. denied, 544 U.S. 1035 (2005). We “must affirm the
[IJ’s] decision if it is ‘supported by reasonable, substantial, and probative evidence
on the record considered as a whole.’” Al Najjar, 257 F.3d at 1284 (quoting
Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th Cir. 1997). Thus, “a finding of fact
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will be reversed 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. (quotation omitted); see also Silva v. U.S. Att’y Gen.,
448 F.3d 1229, 1236 (11th Cir. 2006).
Garcia first argues that the IJ’s credibility finding was erroneous because his
testimonial inconsistencies were minor, the IJ was biased, and the IJ improperly
refused to consider the opinion of Professor Marc Chernick regarding Colombian
political violence. A credibility determination is a factual finding reviewed under
the substantial evidence test, and this court should not “substitute [its] judgement
for that of the [IJ] with respect to credibility findings.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1255 (11th Cir. 2006); D-Muhumed v. U.S. Att’y Gen., 388 F.3d
814, 818 (11th Cir. 2004). Furthermore, an IJ’s denial of relief can be supported
solely by an adverse credibility determination, especially if the alien produces no
corroborating evidence. In re Y-B, 21 I&N Dec. 1136, 1139 (BIA 1998). Finally,
a single inconsistency may be sufficient to support an adverse credibility finding if
the inconsistency relates to the alien’s basis for his fear and goes to the heart of the
asylum claim. Lui v. U.S. Att’y Gen., 156 Fed. Appx. 270 (11th Cir. 2005)
(unpublished). Here, there is substantial evidence to support the adverse credibility
finding, including the IJ’s factual findings regarding Garcia’s demeanor and eye
contact, the determinations by the asylum official, the IJ, and the BIA that Garcia
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lacked credibility, and the inconsistencies in Garcia’s testimony.
Second, Garcia argues that he should receive withholding of removal
because he established past persecution and that it is more likely than not that, if
returned to Colombia, he will be persecuted due to his political beliefs. To qualify
for withholding of removal based on persecution by a guerilla group on account of
a political opinion, Garcia must establish that the guerillas persecuted him or will
seek to persecute him in the future because of his actual or imputed political
opinion. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004). This
standard is more stringent than the well-founded fear standard for asylum claims.
D-Muhumed, 388 F.3d at 819. Here, in light of the adverse credibility
determination, Garcia cannot meet this burden. After careful review of the record
as a whole, we conclude that Garcia cannot show past persecution or demonstrate
that it is more likely than not that he will be persecuted in the future.
Accordingly, we DISMISS the petition in part and DENY the petition in
part.
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