Edwin Yesid Ardila v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 16, 2009
No. 08-15219 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency No. A097-625-859

EDWIN YESID ARDILA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(June 16, 2009)

Before TJOFLAT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

Petitioner Edwin Yesid Ardila, a native and citizen of Colombia, S.A. An
Administrative Law Judge (“IJ”) denied petitioner’s application for asylum and

withholding of removal and ordered petitioner removed to Colombia. He appealed

the decision to the Board of Immigration Appeals (“BIA” or “Board”). The Board

affirmed the IJ’s decision and dismissed the appeal. He now petitions this court

for review, challenging the BIA’s denial of asylum and withholding of removal.1

Two issues are presented: whether substantial evidence supports the denial

of petitioner’s application for asylum and withholding of removal based on (1) an

adverse credibility finding and, alternatively, (2) a finding that petitioner’s

evidence failed to show that he suffered past persecution at the hands of the

Revolutionary Armed Forces of Colombia (“FARC”) on account of his political

association with the Liberal Party.

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). “Insofar as the Board adopts the IJ’s reasoning,

we review the IJ’s decision as well.” Id. In this case, the BIA substantially

accepted the reasoning of the IJ. Accordingly, we discuss both the IJ’s and the

BIA’s decision. See Al Najjar, 257 F.3d at 1284.

1
The BIA’s decision included the denial of petitioner’s application for relief under the
Convention Against Torture. Petitioner does not challenge that ruling here.
2
We review the IJ’s findings of fact under the highly deferential substantial

evidence test and “must affirm if they are supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Zheng v. U.S. Att’y

Gen., 451 F.3d 1287, 1289-90 (11th Cir. 2006). We can reverse an IJ’s finding of

fact “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.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.

2004) (en banc). “An IJ’s adverse credibility determinations are . . . factual

findings, and thus, are . . . subject to the substantial evidence test, and may not be

overturned unless the record compels that result.” Alim v. Gonzales, 446 F.3d

1239, 1254 (11th Cir. 2006). “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). “[A]n adverse credibility determination alone may be sufficient

to support the denial of an asylum application.” Id. (quotation omitted). “Once the

IJ makes an adverse credibility determination, the burden is on the alien to show

that the determination was not supported by specific, cogent reasons, or was not

based on substantial evidence.” Id. at 1254-55 (quotation omitted).

In analyzing an adverse credibility finding, some circuits have held that

discrepancies in the petitioner’s testimony must go to the “heart of the asylum
3
claim.” See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002); Chebchoub v.

I.N.S., 257 F.3d 1038, 1043 (9th Cir. 2001). While we have not addressed the

issue in a published opinion, we need not resolve it now because the discrepancies

between petitioner’s hearing testimony and his documentary evidence relate to his

claim that he suffered persecution on account of his association with the Liberal

Party and, thus, are sufficient under either standard.

Here, the IJ made an explicit adverse credibility finding regarding

petitioner’s testimony and gave specific, cogent reasons for it. The IJ relied, and

the BIA affirmed his reliance, upon (1) an inconsistency between a letter from the

Liberal Party, which established only that petitioner worked for the party as a

sympathizer, and his testimony that he occupied a leadership position where he

helped recruit others on behalf of the party; and (2) an inconsistency between a

police report, which indicated that petitioner was pursued by the FARC because of

his technical expertise, and his testimony that the FARC was interested in him

because of his political activities.

Because a review of the record shows these significant discrepancies

between petitioner’s testimony and the documents he submitted, which the IJ could

find were not adequately explained, we conclude that substantial evidence supports

the IJ’s adverse credibility determination.

II.
4
The Secretary of Homeland Security or the Attorney General has discretion

to grant asylum to an alien if the Secretary of Homeland Security or the Attorney

General determines that the alien is a refugee within the meaning of 8 U.S.C.

§ 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as

any person who is outside any country of such person's nationality . . .
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 bears the burden of proving that

he qualifies as a “refugee.” 8 C.F.R. § 208.13(a). In order to meet this burden,

“the applicant must, with specific and credible evidence, establish (1) past

persecution on account of a statutorily protected ground or (2) a well-founded fear

of future persecution on account of a protected ground.” Mejia v. U.S. Att’y Gen.,

498 F.3d 1253, 1256 (11th Cir. 2007).

An alien seeking withholding of removal must show that his “life or freedom

would be threatened in [his] country [of origin] on account of [his] race, religion,

nationality, membership in a particular social group, or political opinion.” INA

§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). “The alien bears the burden of

demonstrating that it is ‘more likely than not’ [he] will be persecuted or tortured

upon being returned to [his] country.” Tan v. U.S. Att’y Gen., 446 F.3d 1369,

5
1375 (11th Cir. 2006) (quoting Sepulveda, 401 F.3d at 1232).

To establish eligibility for asylum or withholding of removal, an alien must

establish a nexus between a statutorily protected ground and the feared persecution.

See Sepulveda, 401 F.3d at 1231. An alien can meet this burden by presenting

“specific, detailed facts showing a good reason to fear that he or she will be singled

out for persecution on account of” such ground. Id. However, “evidence that

either is consistent with acts of private violence or the petitioner’s failure to

cooperate with guerillas, or that merely shows that a person has been the victim of

criminal activity, does not constitute evidence of persecution based on a statutorily

protected ground.” Ruiz, 440 F.3d at 1258.

We have recognized that an alien’s imputed political opinion satisfies the

requirement that persecution be based on a protected ground. Al-Najjar, 257 F.3d

at 1288-89. However, it is insufficient to find that a political opinion would be

imputed to the refugee. Id. at 1289. Instead, the refugee must show persecution

based specifically on the imputed political opinion, and not upon some other

ground. Id.

The record does not compel a finding that petitioner satisfied his burden of

proof for asylum or withholding of removal because substantial evidence supports

the IJ’s finding that the FARC was interested in petitioner for his technical

expertise, rather than his political opinions or affiliations. While he claims that his
6
father’s political opinions may be imputed to him, we note that he insisted before

the IJ that his asylum claim was based on facts totally unrelated to his father’s

claim. As a result, the IJ did not discuss his claim of imputed political opinion;

neither do we.

PETITION DENIED.