[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15712 ELEVENTH CIRCUIT
JUNE 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A098-869-567
CESAR DAVID NANEZ-DOMINGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 29, 2009)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Cesar David Nanez-Dominguez (“Nanez”), a native and citizen of
Venezuela, seeks review of the Board of Immigration Appeals’ (“BIA’s”) decision
to dismiss his appeal from the Immigration Judge’s (“IJ’s”) order denying his
application for asylum under the Immigration and Nationality Act (“INA”). Nanez
argues that the district court erred in finding that he was not credible because his
testimony was both internally consistent and consistent with his asylum
application.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, the BIA issued its own opinion, affirming the
IJ’s decision but not expressly adopting it. Therefore, we will review only the
BIA’s decision.
The BIA’s factual findings are reviewed under the substantial evidence test.
Najjar, 257 F.3d at 1283-84 (internal quotation marks and citation omitted). We
also review credibility determinations under the substantial evidence test. Forgue
v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal quotation marks
and citation omitted). Under the substantial evidence test, we must affirm the
BIA’s decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (citation and internal quotation
marks omitted). We will not reverse a finding of fact by the BIA unless the record
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compels it, and the fact that evidence in the record may also support a conclusion
contrary to the administrative findings is not enough to justify a reversal. Adefemi
v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en banc).
An alien may qualify for asylum by presenting credible evidence showing
“(1) past persecution on account of her political opinion or any other protected
ground, or (2) a ‘well-founded fear’ that her political opinion or any other
protected ground will cause future persecution.” Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1230-31 (11th Cir. 2005) (per curiam) (citation omitted). In addition,
an alien can satisfy his burden of proof by showing past persecution, which gives
rise to a rebuttable presumption of future persecution. Id. at 1231. Failure to
establish a claim of asylum necessarily causes a claim for withholding of removal
to fail. Forgue, 401 F.3d at 1288 n.4.
An applicant’s testimony, if credible, may carry the burden of proof for
asylum without corroboration. 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, 401 F.3d at 1287 (citation omitted). “[A]n adverse
credibility determination does not alleviate the [BIA]’s duty to consider other
evidence produced by an asylum applicant.” Id. However, the BIA may reject
such evidence if it is unreliable. See Mohammed v. U.S. Att’y Gen., 547 F.3d 1340,
1346 (11th Cir. 2008). “Further, the [BIA] must offer specific, cogent reasons for
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an adverse credibility finding.” Forgue, 401 F.3d at 1287. “Once an adverse
credibility finding is made, the burden is on the applicant alien to show that the
[BIA]’s credibility decision was not supported by ‘specific, cogent reasons’ or was
not based on substantial evidence.” Id. “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) (per curiam). “[T]his court may not substitute its judgment for
that of the [BIA] with respect to credibility findings.” Forgue, 401 F.3d at 1286
(internal quotation marks and citation omitted).
For asylum applications filed after May 11, 2005, a more detailed totality-of-
the-circumstances test, as provided in 8 U.S.C. § 1158(b)(1)(B)(iii), applies.
Considering the totality of the circumstances, and all relevant factors,
a trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
consistency of each such statement, the consistency of such statements
with other evidence of record (including the reports of the Department
of State on country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim, or
any other relevant factor. There is no presumption of credibility,
however, if no adverse credibility determination is explicitly made,
the applicant or witness shall have a rebuttable presumption of
credibility on appeal.
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8 U.S.C. § 1158(b)(1)(B)(iii).
Here, the BIA stated specific and cogent reasons for its adverse credibility
determination by noting the inconsistencies in Nanez’s testimony on direct and
cross-examination, as well as in his asylum interview, and the evidence does not
compel a contrary conclusion. See Forgue, 401 F.3d at 1287. Even setting aside
discrepancies in dates and chronologies within Nanez’s testimony, his testimony
was internally inconsistent. During direct examination, Nanez testified that
members of the Bolivarian Circles intercepted and circled his car with their
vehicles, but on cross-examination he stated that they just got in front of his car
with their vehicles and stopped. On direct examination, Nanez stated that three
individuals threatened him and then grabbed him, threw him out of the car, and
beat him. However, on cross-examination, Nanez testified that the three
individuals put him into the backseat, drove about a block, stopped the car and beat
him, drove a little further, and then threw him out of the car. Additionally, on
direct examination, Nanez stated that he received stitches in both his knee and his
arm. Yet, on cross-examination, he stated that he only received stitches in his
knee. Given that Nanez’s testimony as to his past persecution centers on his
account of this particular vehicular incident, Nanez has failed to meet his burden to
show that the BIA’s credibility decision was not supported by specific, cogent
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reasons or was not based on substantial evidence, since his testimony as to the
details of this alleged assault were inconsistent. See Forgue, 401 F.3d at 1287.
Furthermore, because Nanez was found to be not credible, the BIA was
entitled to reject the letters and the medical report as unreliable or irrelevant, and
the Country Report does not compel the conclusion that Nanez was personally
persecuted or has a well-founded fear that he will be persecuted. See Mohammed,
547 F.3d at 1346. Therefore, the BIA did not err in denying Nanez’s application
for asylum. Because Nanez failed to meet his burden of proof for asylum, he was
also not entitled to withholding of removal.1
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we must deny the petition.
PETITION DENIED.
1
Nanez also argues that the IJ clearly erred in finding that, even if he was deemed
credible, he no longer had a well-founded fear of persecution because of changed political
conditions in Venezuela. However, the BIA did not specifically affirm this finding or state what
its decision would be if it were to assume that Nanez was credible. As such, this issue is not
before our Court for review. See Najjar, 257 F.3d at 1284 (“We review only the [BIA’s]
decision, except to the extent it expressly adopts the IJ’s opinion.”).
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