Juan Carlos Baron v. US Attorney General, (11th Cir. 2007)

Text

---

[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 20, 2007

N o . 06-14128

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

A g en cy No. A79-497-215

JU A N CARLOS BARON,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(M a rch 20, 2007)

B efo re MARCUS, WILSON and PRYOR, Circuit Judges.

P E R CURIAM:

Ju an Carlos Baron, a native and citizen of Colombia, petitions this Court to

rev iew the decision of the Board of Immigration Appeals ("BIA") adopting and

affirm in g the order of the Immigration Judge ("IJ") denying his application for

asylu m pursuant to the Immigration and Nationality Act ("INA"). On appeal, B aro n asserts that the IJ's adverse credibility finding was not supported by su b stan tial evidence, and that he demonstrated both past persecution by the R ev o lu tio n ary Armed Forces of Colombia ("FARC") on account of his community activ ities and imputed political opinion, and future persecution by the FARC upon h is return to Colombia. After careful review, we deny the petition for review.1 W h er e, as here, the BIA adopts the IJ's reasoning, we review the IJ's d ecisio n as if it were the BIA's. Chen v. U.S. Att'y Gen, 463 F.3d 1228, 1230 (1 1 th Cir. 2006). Id. The IJ's factual determinations, including credibility d eterm in atio n s, are reviewed under the substantial evidence standard. Id. at 12303 1 . Under this standard, "the IJ's decision can be reversed only if the evidence c o m p e ls a reasonable fact finder to find otherwise." Id. at 1231 (internal q u o tatio n s omitted). We "may not substitute [our] judgment for that of the [IJ] w ith respect to credibility findings." D-Muhumed v. U.S. Att'y Gen., 388 F.3d 8 1 4 , 818 (11th Cir. 2004). A n alien who arrives in or is present in the United States may apply for a sy lu m . See INA § 208(a)(1), 8U.S.C. § 1158(a)(1). The Attorney General has d is cr etio n to grant asylum if the alien meets the INA's definition of a "refugee." See INA § 208(b)(1), 8U.S.C. § 1158(b)(1). A "refugee" is any person who is u n w illin g to return to his home country or to avail himself of that country's p ro tectio n "because of persecution or a well-founded fear of persecution on acco u n t of race, religion, nationality, membership in a particular social group, or p o litical opinion . . . ." 8U.S.C. § 1101(a)(42)(A).

The asylum applicant carries the burden of proving statutory "refugee" statu s. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant satisfies this burden by showing, with specific and credible evidence: (1) past p e r se cu tio n on account of a statutorily listed factor, or (2) a "well-founded fear" th at his statutorily listed factor will cause future persecution. Al Najjar, 257 F.3d at 1287; 8 C.F.R. § 208.13(a), (b). "To establish asylum based on past p ersecu tio n , the applicant must prove (1) that she was persecuted, and (2) that the p ersecu tio n was on account of a protected ground." Silva v. U.S. Att'y Gen., 448 F .3 d 1229, 1236 (11th Cir. 2006) (citations omitted). "To establish eligibility for asylu m based on a well-founded fear of future persecution, the applicant must p ro v e (1) a `subjectively genuine and objectively reasonable' fear of persecution, th at is (2) on account of a protected ground." Id. (citations omitted).

If an alien provides credible testimony, it may be sufficient, without c o r ro b o r a tio n , to establish his eligibility for relief from removal. Chen, 463 F.3d at 1 2 3 1 . However, an IJ's denial of asylum relief can be based solely on an adverse cred ib ility determination if the alien does not produce corroborating evidence. Id.

If the alien does provide corroborating evidence, the IJ may not rely solely on an ad v erse credibility determination and must consider the corroborating evidence.

Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). Once the IJ ex p licitly finds that the alien lacks credibility, the burden shifts to the alien to show th at the IJ's credibility determination "was not supported by specific, cogent reaso n s or was not based on substantial evidence." Chen, 463 F.3d at 1231 (in tern al quotations omitted).

Here, substantial evidence supports the IJ's decision that Baron did not estab lish past persecution based on political opinion, imputed or otherwise. First, th e IJ made an adverse credibility determination as to Baron's testimony based on in c o n s is te n c ie s between his asylum application and his testimony. The IJ specified a n d explained the inconsistencies in her order. More specifically, the IJ h ig h lig h te d several "material" and "serious" incidents, including an alleged b eatin g , Baron's membership in four specific organizations, threatening phone c alls before the alleged beating, an armed individual appearing at Baron's house, an d a threatening note from FARC, all of which Baron described during the asylum h earin g , but had not mentioned on his asylum application. Moreover, the IJ found th at even if she found Baron to be credible, and taking into account the co rro b o ratin g evidence Baron presented, he still had not established past p e r se cu tio n because there was no evidence of serious injury or that Baron had been arrested or detained. Cf. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1231 (11th C ir . 2005) ("[P]ersecution is an extreme concept, requiring more than a few iso lated incidents of verbal harassment or intimidation[.]" (internal quotations and citatio n omitted)). In short, the record does not compel a contrary conclusion.

B ecau se Baron did not establish past persecution, he was not entitled to a p r e su m p tio n of a well-founded fear of future persecution. Substantial evidence s u p p o r ts the IJ's conclusion that Baron did not have a well-founded fear of future p ersecu tio n . Because he did not present "specific, detailed facts showing a good reaso n to fear that he . . . will be singled out for persecution," Sepulveda, 401 F.3d at 1231 (quotation omitted), we are not compelled to conclude that he established a case for asylum based on a well-founded fear of future persecution by the FARC.

I n sum, Baron has failed to establish that the record compels a finding that th e FARC persecuted him, or that he had a well-founded fear of future persecution b y the FARC, because of an imputed political opinion or membership in a social g ro u p . Accordingly, we deny the petition for review.

PETITION DENIED.

1 Because we conclude Baron has not met his burden to establish his eligibility for asylum, we also conclude that he failed to meet the higher standard for withholding of removal. Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir.2001). Baron also applied for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"), 8U.S.C. § 1231(b)(3), 8 C.F.R. § 208.16(c). Baron makes no arguments on appeal concerning the denial of his request for CAT relief. Therefore, he has waived that issue. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).

---