Oscar Ariel Vallecio-Romero v. U.S. Attorney General

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-16786
Non-Argument Calendar
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Agency No. A206-490-048

OSCAR ARIEL VALLECIO-ROMERO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(October 2, 2017)

Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
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Oscar Vallecio-Romero, a citizen of Honduras, petitions for review of the

Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration

Judge’s (“IJ”) denial, based on an adverse credibility finding, of his application for

relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (“CAT”). Upon review, we

conclude that the IJ and BIA articulated specific and cogent reasons for the

adverse-credibility finding, and the finding is supported by substantial evidence.

Moreover, in light of the adverse-credibility finding, no reasonable factfinder

would be compelled to find that Vallecio-Romero is entitled to CAT relief.

Accordingly, we deny the petition.

I. BACKGROUND

In February 2014, Vallecio-Romero unlawfully entered the United States

and near Hidalgo, Texas. In a sworn statement made to border patrol agents

shortly thereafter, Vallecio-Romero stated that he came to the United States to find

work and study and did not fear persecution or torture if he were returned to his

home country of Honduras.

A. Credible Fear Interview

During his subsequent credible fear interview, Vallecio-Romero stated that

he feared he would be killed if he returned to Honduras for reporting the murder of

his 15-year-old half-brother to police. Vallecio-Romero explained that his half-

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brother on his father’s side, Bryan Noe Gonzalez Rodriguez (“Gonzalez”), was

found dead around September 15, 2013 after having been missing for 15 days.

Initially, Vallecio-Romero stated that he reported the murder to police in

December 2013, when he learned who had killed Gonzalez, but he later stated that

he reported the murder on September 20, 2013. Vallecio-Romero claimed that he

received a threatening phone call from a member of the gang that murdered

Gonzalez the day after he spoke to police, telling him to leave the country or he

would be killed. Vallecio-Romero suspected that the police were working with the

gang members because only the police knew his phone number. When asked why

he did not tell the border patrol agents that he was afraid to return to Honduras, he

said he “was scared that they would [put him] in jail.”

B. I-589 Application

On March 17, 2014, the Department of Homeland Security (“DHS”) issued a

Notice to Appear (“NTA”), charging Vallecio-Romero as removable pursuant to

INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), for being an applicant for

admission not in possession of a valid entry document. Vallecio-Romero admitted

that he was not a U.S. citizen, was a citizen of Honduras, and was not admitted or

paroled into the United States after inspection, and conceded removability.

Vallecio-Romero subsequently filed an I-589 application for asylum,

withholding of removal, and CAT relief. In an attached statement, Vallecio-

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Romero stated, among other things, that his family discovered Gonzalez’s body “a

couple of days” after he went missing and that Gonzalez was “only 14 years old at

the time.”

In support of his application, Vallecio-Romero submitted additional

documentation, including copies of his own birth certificate, and Gonzalez’s birth

and death certificates. Of note, Vallecio-Romero’s birth certificate listed his father

as Santos Carmindo Vallecio, while Gonzalez’s listed his father as Jose Manuel

Gonzalez Contreras. Gonzalez’s death certificate, dated August 7, 2013, listed his

cause of death as asphyxiation and the date of death as “4 to 6 weeks [before].”

Gonzalez’s birth date was June 15, 1998, making him 15 years old at the time of

his death. Vallecio-Romero also provided recommendation letters from friends

and family, two of which indicated that Vallecio-Romero actually witnessed

Gonzalez’s murder.

C. Merits Hearing Testimony

At the merits hearing, Vallecio-Romero again recounted Gonzalez’s

disappearance and murder, this time stating that he learned of the murder from

Gonzalez’s mother. Vallecio-Romero further testified that it was Gonzalez’s

mother who reported the murder to the police, and he only tried to contact police

personally after he began receiving threats from the gang members who killed

Gonzalez. On cross-examination, Vallecio-Romero insisted that he told the border

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patrol agents about Gonzalez’s murder, and he did not remember telling them that

he came to the United States to work or study.

When the IJ asked why his and Gonzalez’s birth certificates listed different

fathers, Vallecio-Romero claimed that Gonzalez’s mother initially denied that

Vallecio-Romero’s father was also Gonzalez’s father, but later admitted that he

was. Vallecio-Romero conceded, however, that he did not have any evidence

proving Gonzalez was his true half-brother. When the IJ asked how long Gonzalez

was missing before his body was discovered, Vallecio-Romero initially replied that

Gonzalez was missing for “like a month.” After the IJ pointed out that Vallecio-

Romero had made inconsistent statements regarding the duration of Gonzalez’s

disappearance, Vallecio-Romero stated that “there [was not] an exact date, exact

number of days,” but he believed Gonzalez was missing for “15 to 30 days.”

Similarly, when the IJ questioned Vallecio-Romero about Gonzalez’s cause

of death, he first said that he believed Gonzalez was shot. After the IJ pointed out

that Gonzalez’s death certificate indicated he was likely strangled, Vallecio-

Romero stated that gangs did sometimes strangle victims, but that Honduras did

not have the “advanced technology” necessary to determine cause of death, and he

had heard different accounts of Gonzalez’s death.

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D. The IJ’s Decision

The IJ issued an oral decision denying Vallecio-Romero’s application,

finding that Vallecio-Romero’s testimony was not credible. Among other things,

the IJ found that: (1) Vallecio-Romero’s signed statement to border patrol seriously

undermined his credibility, and his testimony that he did not recall telling border

patrol agents that he came to the United States to work and study was not

believable; (2) the evidence Vallecio-Romero presented regarding Gonzalez’s

relatedness as a half-brother, age, date and duration of disappearance, and manner

of death was unreliable given the inconsistencies between his testimony, prior

statements, and documentary evidence; and (3) the documentary evidence itself

contained material inconsistencies and was of questionable validity. In light of the

adverse-credibility finding, the IJ determined that Vallecio-Romero failed to prove

his eligibility for asylum, withholding of removal, or CAT relief.

Vallecio-Romero did not challenge the IJ’s denial of asylum or withholding

of removal in his appeal to the BIA, nor has he done so in his brief before this

Court. Accordingly, those claims are unexhausted and abandoned, and we do not

review them here. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,

1250 (11th Cir. 2006); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2

(11th Cir. 2005).

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E. The BIA’s Decision on CAT Relief

Vallecio-Romero filed a notice of appeal to the BIA, arguing that the IJ

erred in finding him ineligible for CAT relief because his testimony was credible

and he provided corroborating evidence. The BIA affirmed the IJ’s decision,

finding no clear error in the IJ’s adverse-credibility finding. The BIA agreed that

there were material inconsistencies between both Vallecio-Romero’s various

statements to the border patrol agents, during his credible fear interview, in his

asylum application, and at the merits hearing, and his testimony and the

documentary evidence he provided. The BIA further agreed that, in light of the

adverse-credibility determination, Vallecio-Romero had not established that it was

more likely than not that he would be tortured by or with the acquiescence of the

government upon his return to Honduras. Accordingly, the BIA dismissed

Vallecio-Romero’s appeal.

II. STANDARD OF REVIEW

We review only the decision of the BIA, 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). Where the BIA expressly agrees with the IJ’s reasoning, we

review the IJ’s decision to the extent of the agreement. Ayala v. U.S. Att’y Gen.,

605 F.3d 941, 948 (11th Cir. 2010).

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Factual findings, which include credibility determinations, are reviewed

under the substantial evidence test. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-

31 (11th Cir. 2006). We must affirm the decision “if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Silva v.

U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (internal quotation marks

omitted). Under this highly deferential standard of review, “[w]e view the record

evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision.” Id. (internal quotation marks

omitted). Thus, a factual finding “can be reversed only if the evidence compels a

reasonable fact finder to find otherwise.” Chen, 463 F.3d at 1231 (internal

quotation marks omitted). “[T]he mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the administrative findings.”

Silva, 448 F.3d at 1236 (internal quotation marks omitted).

III. DISCUSSION

Pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13 § 101, 119 Stat.

302, for applications filed after May 11, 2005, a credibility determination may be

based on the totality of the circumstances, including: (1) the demeanor, candor, and

responsiveness of the applicant; (2) the plausibility of the applicant’s account;

(3) the consistency between the applicant’s written and oral statements; (4) the

internal consistency of each statement; and (5) the consistency of the applicant’s

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statements with other record evidence. INA § 208(b)(1)(B)(iii), 8 U.S.C.

§ 1158(b)(1)(B)(iii). When the IJ makes an adverse-credibility finding, the IJ must

offer “specific, cogent” reasons for the finding. Chen, 463 F.3d at 1231. The

burden then shifts to the applicant to demonstrate that the decision was not

supported by such specific, cogent reasons or was not based on substantial

evidence. Id. However, even a tenable explanation for any inconsistencies in the

applicant’s testimony will not necessarily compel reversal of an adverse-credibility

determination. Id. at 1233.

An applicant seeking CAT protection must establish that it is more likely

than not that he would be tortured if removed to the proposed country of removal.

Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).

Additionally, the applicant must show that the torture would be by or with the

acquiescence of the government. Id.

Here, the BIA and IJ gave specific, cogent reasons for the adverse-credibility

finding—namely, the inconsistencies between Vallecio-Romero’s prior statements,

hearing testimony, and documentary evidence regarding (1) his reason for entry,

(2) his relationship to Gonzalez, (3) Gonzalez’s age, and (4) the date, duration,

circumstances, and manner of Gonzalez’s disappearance and death. These were

legitimate considerations in assessing Vallecio-Romero’s credibility, and they are

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supported by substantial evidence in the record. See INA § 208(b)(1)(B)(iii), 8

U.S.C. § 1158(b)(1)(B)(iii); Chen, 463 F.3d at 1231-33.

Furthermore, even Vallecio-Romero’s proffered explanations for the

inconsistencies were not always themselves consistent. For example, Vallecio-

Romero told the asylum officer at his credible fear interview that he did not tell

border patrol agents his true reason for entering the United States because he was

afraid that they would put him jail, but later testified that he in fact did tell the

agents his true reason for entry and did not recall giving any other reason.

Likewise, when confronted with the inconsistency between his testimony about

Gonzalez’s manner of death and Gonzalez’s death certificate, Vallecio-Romero

initially claimed that Honduras lacked the technology to accurately identify cause

of death, and then stated that he had been given conflicting accounts of Gonzalez’s

death. Thus, even if some of Vallecio-Romero’s explanations may be tenable, we

cannot say that they would compel a reasonable fact finder to reverse the IJ’s

credibility determination. See Chen, 463 F.3d at 1233.

In light of the adverse-credibility determination, substantial evidence

likewise supports the IJ’s and BIA’s finding that Vallecio-Romero was not eligible

for CAT relief. Absent Vallecio-Romero’s testimony, the evidence in the record

does not compel a finding that it is more likely than not that Vallecio-Romero

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would be tortured upon his return to Honduras by or with the acquiescence of the

Honduran government. Reyes-Sanchez, 369 F.3d at 1242.

IV. CONCLUSION

For all of the foregoing reasons, we deny Vallecio-Romero’s petition.

PETITION DENIED.

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