[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 10, 2009
No. 08-15333 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A095-898-281
ANGEL ALBERTO SALCEDO-MORA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 10, 2009)
Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.
PER CURIAM:
Angel Salcedo-Mora, a native and citizen of Colombia, petitions our Court
to review an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal of the Immigration Judge’s (“IJ’s”) order of removal and denial of asylum
and withholding of removal under the Immigration and Nationality Act (“INA”)
and relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. § 1158, 8
U.S.C. § 1231, 8 C.F.R. § 208.16. On review, Salcedo-Mora argues that: (1) the IJ
abused her discretion in denying his third motion for continuance, which was based
on the pendency of his asylee relative petition; and (2) the IJ and the BIA erred in
making an adverse credibility finding and in denying his claims for asylum and
withholding of removal.
Motion for Continuance
On review, Salcedo-Mora argues that the IJ improperly focused on a minor
discrepancy, i.e., that he had indicated in his asylum application that he was single,
but now claimed that he had had a common-law marriage. He argues that he met
his burden to establish by a preponderance of the evidence that he was eligible for
derivative asylum, and that he was simply waiting for the asylee relative petition to
be processed.
We review an IJ’s denial of a motion for continuance for an abuse of
discretion. Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1214 (11th Cir. 2006).
The immigration regulations provide that an IJ may grant a continuance “for good
2
cause shown.” 8 C.F.R. § 1003.29; Haswanee, 471 F.3d at 1214. According to
BIA precedent, “an immigration judge’s decision denying [a] motion for
continuance will not be reversed unless the alien establishes that [the] denial
caused him actual prejudice and harm and materially affected the outcome of his
case.” Matter of Sibrun, 18 I. & N. Dec. 354, 356-57 (BIA 1983). “Judicial
review of denials of discretionary relief incident to [removal] proceedings . . . is
limited to determining whether there has been an exercise of administrative
discretion and whether the matter of exercise has been arbitrary or capricious.”
Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted)
(reviewing denials of motions to reopen).
The record shows that the IJ did not make an arbitrary or capricious decision
to deny a third continuance. Instead, the IJ recognized that the proceedings had
already been delayed for a long time, and because the IJ had granted prior
continuances, nearly three years had passed when the IJ set the case for a merits
hearing, and four years had passed when the IJ eventually conducted the merits
hearing. In addition, the IJ stated that Salcedo-Mora could not show that the asylee
relative petition was prima facie approvable given the contradictory evidence of his
marital status when he filed his asylum application. Morever, the IJ noted that if
the asylee relative petition were granted, Salcedo-Mora would receive the benefit
of that petition regardless of the result of his merits hearing. Thus, Salcedo-Mora
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also could not establish that the denial of his motion for continuance affected the
outcome of his merits hearing. See Sibrun, 18 I. & N. Dec. at 356-57. Based on
the IJ’s stated reasons, which were supported by the record, this Court should
conclude that the IJ did not abuse her discretion in denying Salcedo-Mora’s third
motion for continuance.
Salcedo-Mora argues that he made a “colorable showing” of eligibility for
relief based on his common-law marriage. However, as this Court noted in Bull,
the BIA’s general rule that an IJ should grant a continuance when an applicant can
show eligibility for relief with regard to another pending petition is not an
inflexible requirement. Bull, 790 F.2d at 872; Garcia, 16 I. & N. Dec. at 656-57.
In Salcedo-Mora’s case, moreover, he clearly indicated in his asylum application
and in statement to the Colombian human rights office that he was single, and he
did not explain in either case that he was in a common-law relationship.
Accordingly, even if Salcedo-Mora were to establish for purposes of the asylee
relative petition that he did have a common-law marriage in Colombia, the IJ’s
decision was still based on the evidence in the record and not arbitrary or
capricious.
Adverse Credibility Determination and Denial of Relief
Salcedo-Mora argues that the IJ erred in finding him not credible because,
with regard to each inconsistency noted by the IJ, either he provided an adequate
4
explanation, the inconsistency was minor, or the record did not clearly indicate an
inconsistency. He also argues that the evidence compels the conclusions that he
suffered past persecution by the Revolutionary Armed Forces of Colombia
(“FARC”), and that he likely would likely suffer future persecution by the FARC if
returned to Colombia.1
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). To the extent the BIA adopts the IJ’s reasoning, we also review the IJ’s
decision. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006). The
BIA’s factual determinations are reviewed under the substantial evidence test,
which requires us to “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, 1026-27 (11th Cir. 2004) (en banc). We will
affirm the BIA’s decision “if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” D-Muhumed, 388 F.3d
at 818 (quotation omitted). “To reverse the . . . fact findings, we must find that the
1
We do not have jurisdiction to review the denial of CAT relief because Salcedo-
Mora did not challenge the denial of CAT relief in his notice of appeal or brief to the BIA. See
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (holding that
we will not review an issue or claim that was not presented to the BIA in the petitioner’s notice
of appeal or brief to the BIA, even if the BIA considered the issue or claim sua sponte). In this
case, moreover, Salcedo-Mora does not raise the issue of CAT relief in his petition for review or
his brief to this Court.
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record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The U.S. Attorney General
or the Secretary of the Department of Homeland Security has discretion to grant
asylum if the alien meets the INA’s definition of “refugee.” See INA § 208(b)(1),
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.
INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A).
To establish asylum eligibility, the alien must, with specific and credible
evidence, 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. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. An applicant
may not show merely that he can establish a listed factor, but must show a causal
connection between the persecution, or feared persecution, and a listed factor.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (citing 8
6
C.F.R. § 208.13(a), (b)). We have held that not all “exceptional treatment”
constitutes persecution. Zheng v. U.S. Att’y General, 451 F.3d 1287, 1290 (11th
Cir. 2006). We have described persecution “as an extreme concept, requiring more
than a few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Id. (quotation omitted). “In
determining whether an alien has suffered past persecution, the IJ [and the BIA]
must consider the cumulative effects of the incidents.” Delgado v. U.S. Att’y
Gen., 487 F.3d 855, 861 (11th Cir. 2007).
To establish a “well-founded fear” of future persecution, “an applicant must
demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289. An asylum applicant can
establish a well-founded fear of future persecution by presenting “specific, detailed
facts showing a good reason to fear that he or she will be singled out for
persecution on account of” the statutorily listed factor. Id. at 1287 (quotation
omitted). Alternatively, an applicant can establish a well-founded fear of
persecution by establishing that there is a pattern or practice of persecution of
persons similarly situated on account of the statutorily listed factor. 8 C.F.R.
§ 208.13(b)(2)(iii).
Under the INA’s provisions for withholding of removal, the Attorney
General “may not remove an alien to a country if the Attorney General decides that
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the alien’s life or freedom would be threatened in that country because of the
alien’s 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). “An alien bears
the burden of demonstrating that he more-likely-than-not would be persecuted or
tortured upon his return to the country in question.” Mendoza, 327 F.3d at 1287; 8
C.F.R. § 1208.16(b). Because the evidentiary burden for withholding of removal is
greater than that imposed for asylum, if an alien has not met the well-founded fear
standard for asylum, he generally cannot meet the standard for withholding of
removal. Al Najjar, 257 F.3d at 1292-93.
We review credibility determinations under the substantial evidence test and
will not substitute our judgment for that of the IJ or BIA. D-Muhumed, 388 F.3d
at 818.
[T]he IJ [or BIA] must offer specific, cogent reasons for an adverse
credibility finding. Once an adverse credibility finding is made, the
burden is on the applicant alien to show that the IJ’s [or BIA’s]
credibility decision was not supported by specific, cogent reasons or
was not based on substantial evidence. A credibility determination,
like any fact finding, may not be overturned unless the record compels
it.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (citations and
quotations omitted).
“Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments.”
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Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). If credible, an
alien’s testimony may be sufficient, without corroboration, to sustain his burden of
proof in establishing his eligibility for relief from removal. Forgue, 401 F.3d at
1287. “Conversely, an adverse credibility determination alone may be sufficient to
support the denial of an asylum application.” Id. “[A]n adverse credibility
determination, [however], does not alleviate the IJ’s duty to consider other
evidence produced by an asylum applicant,” and it is not sufficient for the IJ to rely
on the adverse credibility finding alone, if the applicant produces other evidence of
persecution. Id. “The weaker an applicant’s testimony, . . . the greater the need for
corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005). This Court has held that an applicant’s failure to mention certain aspects of
his claim before the hearing can support an adverse credibility finding. Forgue,
401 F.3d at 1287 (holding that in light of an applicant’s omission of various
relevant facts from his asylum application, “substantial evidence support[ed] the
IJ’s adverse credibility determination”).
Upon review of the record and the briefs of the parties, we conclude that
substantial evidence supports the BIA’s and IJ’s determinations that Salcedo-Mora
(1) was not credible, (2) did not show past persecution or a well-founded fear of
future persecution, and (3) therefore, was not eligible for asylum. The BIA and the
IJ gave specific examples of discrepancies supporting their adverse credibility
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findings, which are supported by substantial evidence. See Forgue, 401 F.3d at
1287. The BIA noted that the record contained several contradictions about his
encounters with the guerillas and “equivocal and surprisingly uncorroborated
testimony regarding his purported marital relationship.” The record shows that
Salcedo-Mora indicated in his asylum application and in a statement to a
Colombian human rights office that he was single, but he later claimed that he had
a common-law marriage with Vera-Leguizamon. Although he argues that the
application did not give the option of indicating a common-law marriage, he did
not explain why he checked “single” instead of “married,” and he did not explain
his common-law relationship anywhere in his asylum application. In addition,
Vera-Leguizamon did not file the I-730 petition until April 2003, several months
after she was granted asylum in September 2002 and the beginning of Salcedo-
Mora’s removal proceedings in October 2002, and Vera-Leguizamon was present
at the merits hearing, but did not testify to their marital status or provide an
affidavit.
The record also shows contradictions regarding Salcedo-Mora’s interaction
with the FARC, specifically, as the IJ noted, when that interaction began and how
long he was detained. His application stated that he started receiving notes from
the FARC in June 2001, but he testified both that (1) the messages began in July
2001 and that (2) messages were received “every month” for “several months”
10
until he encountered a particular FARC intermediary in July 2001. In addition, he
declared to the Colombian human rights office that guerillas detained him for 30
minutes, but his application stated that the incident took “a couple of hours.”
Although Salcedo-Mora tried to explain the discrepancies, the discrepancies are
material to his asylum claim on the basis of persecution, and the record does not
compel the conclusion that he was credible. Indeed, the record contains additional
discrepancies regarding Salcedo-Mora’s connection to the Liberal Party.
Substantial evidence also supports the finding that Salcedo-Mora did not
establish that any past persecution or fear of future persecution was based on a
statutorily protected ground. See 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at
1287. Because Salcedo-Mora was found to be not credible, he needed to present
corroborating evidence to support his claim. However, his declaration to the
human rights office contradicted his application and testimony, and the purported
declarations of people in Colombia were not translated correctly or completely.
Salcedo-Mora points to the Country Report, but has failed to show that he would
be singled out or that there was a pattern or practice of persecution of similarly-
situated persons based on political opinion. See Al Najjar, 257 F.3d at 1287; 8
C.F.R. § 208.13(b)(2)(iii). In addition, although he provided documentation of his
work for the civic corporation, he did not explain how his work for the civic
corporation was an expression of his political opinion.
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Even if assumed to be credible, however, Salcedo-Mora did not clearly
articulate a political opinion either in his asylum proceedings or to the FARC, and,
thus, he also did not show that he was mistreated on account of his political
opinion. Indeed, he stated in his application that he told the FARC that he could
not provide money and food because he did not own the farm, not because he
disagreed with their politics. As noted by the IJ, it appears that any alleged
persecution resulted from Salcedo-Mora’s refusal to provide goods and services,
rather than his political opinion. Although he argues that the IJ should have
considered a mixed motive, the record does not establish that Salcedo-Mora had a
particular political opinion or that the FARC knew of such an opinion. Even if the
question is debatable, the record does not compel a contrary conclusion. See
Mendoza, 327 F.3d at 1287.
Substantial evidence also supports the conclusion that, even if assumed to be
credible, Salcedo-Mora did not show that his alleged mistreatment rose to the level
of persecution. In particular, his testimony shows that he received demands and
threats in the form of about five letters and a few telephone calls over a six-month
period, and was detained by armed guerillas for up to two hours without suffering
any physical harm. His case is distinguishable from Mejia, where the petitioner
suffered a broken nose and was threatened over a period of 18 months. See Mejia,
498 F.3d at 1257-58. In addition, this Court has emphasized that persecution is an
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extreme concept. See Zheng, 451 F.3d at 1290. Even if it is not clear whether
Salcedo-Mora’s alleged mistreatment rose to the level of persecution, the record
does not compel a contrary conclusion. See Mendoza, 327 F.3d at 1287. Because
Salcedo-Mora did not establish eligibility for asylum, he also did not meet the
higher burden of establishing eligibility for withholding of removal. Accordingly,
we deny the petition.
DENIED.
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