Diego Fernando Arevalos v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 11, 2008
No. 07-13387 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency Nos. A96-095-830
A96-095-831

DIEGO FERNANDO AREVALOS,
SILVIA VERONICA APONTE,

Petitioners-Appellants,

versus

U.S. ATTORNEY GENERAL,

Respondent-Appellee.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(March 11, 2008)

Before ANDERSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:
 Diego Fernando Arevalos and his wife, Silvia Veronica Aponte, seek review

of the decision of the Board of Immigration Appeals, which affirmed the denial of

their applications for asylum and withholding of removal. Arevalos and Aponte

allege that they suffered persecution in Argentina based on a protected ground and

should not be returned to their native country. We deny their petition.

Our standard of review is well established. “This court reviews administrative

fact findings under the highly deferential substantial evidence test. Under the

substantial evidence test, we 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, 1027 (11th Cir.2004) (en banc) (citations

omitted).

To be granted asylum, an applicant must establish that he has suffered past

persecution or has a well-founded fear of future persecution. 8 C.F.R. §

208.13(a)–(b). To establish a well-founded fear of persecution, an applicant must

show that there is “a reasonable possibility” of persecution if the applicant were to

return to his country. 8 C.F.R. § 208.13(b)(2)(i)(B). An applicant for asylum or

withholding of removal must establish that the persecution at issue is “on account of

race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.13(b)(1), (b)(2)(i)(A). Because

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the evidentiary burden for withholding of removal is greater than for asylum, an

applicant who fails to establish a well-founded fear of persecution is ineligible for

withholding of removal. Al Najjar v. Ashcroft, 257 F.3d 1262, 1292–93 (11th Cir.

2001).

Our review of this petition is divided in two parts. First, we address whether

substantial evidence supports the finding of the Board that Arevalos did not have a

well-founded fear of future persecution. Second, we address whether substantial

evidence supports the finding of the Board that Aponte failed to demonstrate a nexus

between her persecution and the alleged ground for that persecution.

Substantial evidence supports the determination of the Board that Arevalos did

not have a well-founded fear of future persecution. The Board relied on the

Immigration Judge’s adverse credibility finding with respect to Arevalos. Because

an adverse credibility finding alone may be sufficient to support the denial of an

application for asylum, Forgue v. U.S. Atty. Gen., 401 F.3d 1282, 1287 (11th Cir.

2005) (citing D-Muhumed v. U.S. Atty. Gen., 388 F.3d 814, 819 (11th Cir. 2004)),

we must deny Arevalos’s petition if substantial evidence supports the adverse

credibility finding.

Substantial evidence supports the adverse credibility finding about Arevalos’s

testimony for at least two reasons. First, Arevalos’s testimony was inconsistent with

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Aponte’s testimony. Arevalos testified that his original application for asylum was

accurate in all respects except that it listed him, instead of his wife, as the lead

applicant. Arevalos’s application stated that Aponte’s alleged persecution had been

perpetrated by rival political parties. Aponte, in contrast, testified that she believed

her persecution to have been perpetrated by corrupt police, not political parties.

Second, Arevalos’s testimony was not consistent with his own application. Although

Arevalos testified that he had been beaten by two men on the street, he did not

mention that beating in his application. Because the evidentiary burden for

withholding of removal is greater than for asylum, Al Najjar, 257 F.3d at 1292–93,

Arevalos is also ineligible for withholding of removal.

Substantial evidence also supports the finding of the Board that Aponte failed

to demonstrate a nexus between her alleged persecution, whether past or future, and

a protected ground. Aponte testified that she realized, over one year after she arrived

in the United States, that the threats directed at her were intended to make her stop

working for an organization that mentors poor children. She testified that she came

to this realization after the police killed a teenager whom she had mentored. The

speculative nature of Aponte’s testimony constitutes substantial evidence that Aponte

failed to establish persecution based on a protected ground. Because Aponte failed

to satisfy her burden for asylum, she is also ineligible for withholding of removal.

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The petition is

DENIED.

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