Roberto Mario Pineda-Buitrago 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[DO NOT PUBLISH]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
APRIL 10, 2008
THOMAS K. KAHN
No. 07-13924
CLERK
Non-Argument Calendar
________________________

BIA No. A95-896-923

ROBERTO MARIO PINEDA-BUITRAGO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 10, 2008)

Before DUBINA, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Roberto Mario Pineda-Buitrago, a native and citizen of Colombia, petitions
this court for review of the Board of Immigration Appeals’ (the “BIA”) decision

affirming and adopting the Immigration Judge’s (the “IJ”) denial of his claims for

asylum, withholding of removal, and relief under the United Nations Convention

Against Torture (“CAT”). Pineda-Buitrago argues that substantial evidence does

not support the IJ’s adverse credibility finding or the alternative finding that he

failed to establish past persecution or a well-founded fear of persecution on a

protected ground. For the reasons discussed below, we affirm the BIA.

BACKGROUND

Pineda-Buitrago filed an application for asylum, withholding of removal,

and relief under CAT on July 20, 2002, approximately six months after arriving in

the United States. He explained that he sought asylum because the Revolutionary

Armed Forces of Colombia (“FARC”) had declared him a military objective based

on his political activities, consisting of his support of politicians in setting-up

events and participation in “health brigades” in nearby towns. At these health

brigades, Pineda-Buitrago donated clothing and canned food and encouraged

families to vote, even though FARC had warned the families not to vote.

In an addendum to his asylum application, Pineda-Buitrago alleged that he

received his first threat from FARC in September of 2001 when a FARC member,

who identified himself as Chino, telephoned him and told him to stop going to an

area called Malambo, which was FARC territory. Chino warned him that if he
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continued to do so, he “would regret it.” Pineda-Buitrago stated that he then

received frequent and aggressive telephone calls, first at his job, and then at his

home in October 2001. Pineda-Buitrago and his wife then moved into the building

where his in-laws were living. At that point, Pineda-Buitrago stopped his political

involvement out of fear of the FARC.

The addendum stated that a few months later on December 28, 2001,

Pineda-Buitrago was driving home from work and noticed a car following him. He

managed to get away by running a red light. That night, Chino called him and said

that he had gotten lucky but would not be so lucky in the future, and that he had

been declared a military objective because he did not heed previous warnings.

In his interview with the asylum officer, Pineda-Buitrago stated that he did

not report the above incident to the police.1 Later, at his immigration hearing,

Pineda-Buitrago testified that he did report the incident to the police that same

night, and he produced a copy of the police report. To explain the inconsistency,

Pineda-Buitrago testified that he was nervous during the interview and told the

asylum officer that he had not reported the incident to the police because he

thought he would not be believed without documentation.

Three days after the vehicle chase, Pineda-Buitrago and his family moved to

1
The record does not contain materials from the interview with the asylum officer.
However, Pineda-Buitrago admitted in his hearing testimony that in the interview he stated that
he did not report the incident to the police.
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a relative’s house in Cartagena. Chino later contacted him in Cartagena, and

Pineda Buitrago decided to leave the country.

Attached to Pineda-Buitrago’s asylum application was a January 2002 letter

from the Governor of the Atlantic Department in Columbia. The letter stated that

Pineda-Buitrago was an active member in the Liberal Party and had supported the

governor in several campaigns, including his 2000 campaign for governor and due

to Pineda-Buitrago’s political activities, he was forced to leave the country for his

own personal safety.

Pineda-Buitrago testified at his immigration hearing that he received written

threats from FARC as well, although he did not mention this either in his asylum

application or in his interview with the asylum officer. At his hearing, he also

produced copies of these typed letters, dated January 2002. He testified that he

received the letters in January 2002 while living with his wife’s uncle in Cartagena.

He stated that he had crumpled the letters up and thrown them away, but,

unbeknownst to him, his wife’s relatives had kept these letters safe and then sent

them to him in America after he applied for asylum but before his hearing. The

letters he produced, however, were clean copies that did not appear ever to have

been crumpled. He testified that he had not produced them earlier because he did

not know that his ex-wife’s relatives had kept them and so did not think they were

available to him. He explained that his ex-wife’s uncle had taken the letters out of
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the trash, saved them “in case they were going to be needed,” but never said a word

to him about it until 2003 when he was going through the asylum application

process in the U.S. He also testified that he had not mentioned these letters to the

asylum officer because he did not think he would be believed without having the

letters, just as he explained his statements regarding the vehicle chase.

The parties submitted several documents into the record. Pineda-Buitrago

submitted a 2002 INS report on health brigades, which described them as “mobile

medical teams that travel in rural and urban areas to provide primary medical care

and diagnostic evaluations,” and that constitute a central part of humanitarian work

carried out in Colombia. The government submitted the State Department Country

Report on Colombia.

Pineda-Buitrago also introduced into evidence his marriage license and

testified that, after arriving in the United States, he had married for the second

time. His new wife was previously granted asylum in this country. His wife did

not testify and no information regarding the basis for her asylum was introduced.

The IJ issued an oral decision denying Pineda-Buitrago’s request for asylum

and withholding of removal. The IJ specifically found that Pineda-Buitrago was

not credible. The IJ explained that she based this determination on the

inconsistencies between the interview with the asylum officer and Pineda-

Buitrago’s testimony at the immigration hearing. The IJ felt it was not believable
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for Pineda-Buitrago to have affirmatively stated to the asylum officer that he had

not reported the vehicle incident to the police just because he did not have a copy

of the written police report. The IJ found it even more unbelievable in light of his

ability to produce the report at the hearing.

The IJ was also suspicious of the alleged written threats from FARC since

Pineda-Buitrago had not mentioned receiving such threats to the asylum officer.

Furthermore, he testified that he had crumpled them up and thrown them away but

was able to produce them at his hearing in pristine condition. The IJ also based the

adverse credibility finding on her determination that “FARC has no interest in this

respondent” because, at most, Pineda-Buitrago was involved in social work, not

politics or government work. Because of Pineda-Buitrago’s low level of political

involvement, the IJ found it incredible that FARC would be interested in him

enough to warrant sending threatening letters.

The IJ also questioned the authenticity of the police report and the FARC

letters because Pineda-Buitrago had not told the asylum officer of their existence,

and had then been able to produce them for his hearing. Additionally, the

documents were not originals and were not authenticated. The IJ noted that FARC

letters “are easily fabricated through the internet.”

The IJ also found that Pineda-Buitrago’s credibility was diminished by the

“almost generic claim in some of these applications . . . that the day after the
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incident the individual receiv[es] a phone call from the alleged offender telling

them that they were very lucky on that particular occasion and that the next time

they would not be so lucky.” The IJ found it not credible that persecutors would

congratulate their attempted targets for getting away.

The IJ dismissed Pineda-Buitrago’s current wife’s asylum status as

irrelevant because her claim was unrelated and the IJ did not have the opportunity

to review the wife’s asylum claim.

After noting these problems with Pineda-Buitrago’s evidence and testimony,

the IJ determined that Pineda-Buitrago had not met his burden of proof for political

asylum or withholding of removal. Finally, the IJ found that Pineda-Buitrago had

never been tortured in Colombia and that FARC was not a governmental entity,

and so Pineda-Buitrago had not made out a claim for relief under CAT.

Pineda-Buitrago appealed this ruling to the BIA which affirmed and adopted

the IJ’s decision. The BIA stated that the IJ’s adverse credibility finding was not

clearly erroneous. The BIA added that the alleged threats did not rise to the level

of persecution and were not shown to have been carried out on account of a

protected ground. The BIA concluded that Pineda-Buitrago had not established

past persecution nor demonstrated that it is more likely than not that he would be

persecuted in the future in Colombia. Accordingly, the BIA dismissed the appeal.

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 STANDARD OF REVIEW

The IJ’s factual determinations are reviewed under a “substantial evidence”

standard and “the IJ’s decision can be reversed only if the evidence compels a

reasonable fact-finder to find otherwise.” Chen v. U.S. Att’y Gen., 463 F.3d 1228,

1230-31 (11th Cir. 2006) (quotations omitted). “Under this highly deferential test,

we affirm the IJ’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) (quotation and alteration omitted).

Credibility determinations are factual determinations. Chen, 463 F.3d at 1230-31.

We review legal determinations de novo. Hernandez v. U.S. Att’y Gen., 513

F.3d 1336, 1339 (11th Cir. 2008).

DISCUSSION

To qualify for asylum, the applicant must establish his status as a “refugee.”

See 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). The asylum applicant carries the burden of proving

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statutory refugee status. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

To do so, the alien must establish (1) past persecution on account of a statutorily

listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause

such future persecution. Id. at 1287; 8 C.F.R. § 208.13(a), (b).

“The asylum applicant must establish eligibility for asylum by offering

credible, direct, and specific evidence in the record.” Forgue v. U.S. Att’y Gen.,

401 F.3d 1282, 1287 (11th Cir. 2005) (quotation omitted). The credible testimony

of an applicant alone may be sufficient to establish eligibility for asylum.

D-Muhumed v. U.S. Att’y. Gen., 388 F.3d 814, 819 (11th Cir. 2004).

“Conversely, an adverse credibility determination alone may be sufficient to

support the denial of an asylum application.” Forgue, 401 F.3d at 1287. The IJ

must provide specific, cogent reasons supporting his adverse credibility

determination. Id. “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. (quotation

omitted). “This court may not substitute its judgment for that of the IJ with respect

to credibility findings.” Id. at 1286.

In this case, the IJ gave well-articulated, specific reasons for her adverse

credibility finding. This finding is supported by substantial evidence in the record.

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 “Indications of reliable testimony include consistency on direct examination,

consistency with the written application, and the absence of embellishments.”

Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). In Chen, this Court

upheld an adverse credibility determination where the IJ cited “a number of

inconsistencies and discrepancies between Chen’s asylum application, his credible

fear interview, and his testimony at the removal hearing.” 463 F.3d at 1231-32.

Here, Pineda-Buitrago’s testimony was inconsistent with his asylum

application and with his interview with the asylum officer. Pineda-Buitrago told

the officer that he did not report the vehicle chase to the police, and then at his

immigration hearing he stated that he had reported the incident and produced the

police report. The IJ cogently found that Pineda-Buitrago’s explanation for this

omission at the asylum interview—that he did not have a copy of the report in hand

at the time—was not credible, because he should have informed the officer that he

had in fact filed a report, even though he did not have a copy of it at the time.

Additionally, he never mentioned in his application or his interview that he ever

received written threats from FARC, yet he testified that he received two such

letters. Furthermore, he testified that he had crumpled up and thrown away the

letters when he received them in January 2002 in Colombia, and then not only

produced the letters at his hearing four years later, but produced them in pristine

condition. The IJ was entitled to find incredible Pineda-Buitrago’s testimony that
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his ex-wife’s family took the letters out of the garbage and saved them, and did so

without telling him. This court is not permitted to substitute its judgment with

respect to these factual credibility findings which are supported by the record.2

Forgue, 401 F.3d at 1286. Additionally, although Pineda-Buitrago offered

explanations for these inconsistencies, we cannot say that his explanations compel

this court to reverse the IJ’s credibility determination. See Chen, 463 F.3d at

1233.w

Even with an adverse credibility determination, the IJ still has a duty to

consider other evidence produced by an asylum applicant. Forgue, 401 F.3d at

1287. In this case, however, the record as a whole supports the IJ’s determination

that Pineda-Buitrago failed to establish past persecution on account of a protected

ground. Pineda-Buitrago’s testimony was found incredible as were the police

report and the letters from FARC. That leaves only the governor’s letter

confirming Pineda-Buitrago’s participation in the health brigades, the country

report, and his wife’s status as a refugee who has been granted asylum. This

evidence does not support Pineda-Buitrago’s claim for asylum. He has offered no

credible evidence demonstrating that he experienced persecution in Colombia nor

2
The court notes that the IJ referred to the phone call from FARC after the vehicle chase
as “generic” and “boilerplate,” and concluded that this made the call incredible. The specific
basis for this determination is unclear, but the adverse credibility finding is otherwise supported
by the record for the reasons stated above.

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that he has a well-founded fear of future persecution. Pineda-Buitrago has offered

no evidence that FARC is aware of his marriage or would have an interest in

persecuting him because of its opinion of his wife. Thus, substantial evidence

supports the IJ’s denial of Pineda-Buitrago’s asylum application. Having failed to

satisfy the standard for asylum eligibility, he necessarily has failed to meet the

more stringent standard for withholding of removal. Najjar, 257 F.3d at 1292-93.

Finally, nothing in the record indicates that Pineda-Buitrago was tortured or would

be tortured in the future, and so he has not established eligibility for relief under

CAT.

CONCLUSION

Because substantial evidence supports the IJ’s decision, Pineda-Buitrago’s

petition is DENIED.

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