Loyo-Arevalo v. Mukasey, (1st Cir. 2008)
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Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2054
ROBERTO LOYO-ARÉVALO,
Petitioner,
v.
MICHAEL B. MUKASEY,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Cudahy,
[1]
Senior Circuit Judge,
and Lipez, Circuit Judge.
Ronald W. Thompson, on brief for petitioner.
Remi Adalemo, Attorney, U.S. Department of Justice, Civil
Division, Office of Immigration Litigation, Jeffrey S. Bucholtz,
Acting Assistant Attorney General, Civil Division, and John C.
Cunningham, Senior Litigation Counsel, on brief for respondent.
July 2, 2008
TORRUELLA, Circuit Judge. Roberto Loyo-Arévalo ("Loyo")
is a twenty-eight year-old national of Guatemala who entered the
United States without inspection in December 1999. Loyo was placed
in deportation proceedings, and he requested withholding of removal
based on political persecution. The immigration judge ("IJ") found
Loyo's allegations of persecution to be incredible, denied his
petition to withhold removal, and ordered him removed to Guatemala.
The Board of Immigration Appeals ("BIA") summarily affirmed this
decision. After careful consideration, we deny Loyo's petition.
I. Background
[2]
Loyo claims that when he was in Guatemala he was
politically active in the Guatemala Republican Front ("FRG") and
officially joined the party in mid-1999. In November 1999, he
assisted the campaign of FRG presidential candidate Alfonso
Portillo in his hometown of Zacapa, distributing flyers and talking
to people about Portillo's platform.
While riding with Portillo's 100-plus car motorcade
between Zacapa and San Jorge, Loyo claims to have been attacked
when he stopped his vehicle to set up fireworks on the side of the
road. He was allegedly shot in the left leg. He did not see his
attacker, but asserts that the shots came from behind bushes on the
side of the road. Nobody else was injured. Loyo was taken to a
hospital under police protection, which he claims was necessary
because rivals would often come to the hospital to kill a target
who survived an attack. He left the hospital without an operation
because he claims his family received threats about his safety. At
home, he and his family received threatening phone calls nearly
every day for six months -- even after Loyo left the country --
until the callers realized that he was no longer in Guatemala.
Fearing for his life, Loyo testified that he applied for a U.S.
visa before the shooting in 1999, but was denied. He later
obtained a visa to Mexico. In December 1999, he left Guatemala and
crossed the border into Texas from Mexico. After his arrest with
his brother for a traffic violation in 2003, Loyo was placed in
deportation proceedings.
During the proceedings, Loyo admitted to removability,
but filed a petition for withholding of removal. On January 12,
2006, the IJ denied Loyo's petition and ordered him removed. The
IJ based this decision on the determination that Loyo's allegations
of persecution were not credible because of a number of
inconsistencies in his representation before the court: First,
Loyo testified that he stayed at the hospital for three days and
that he did not have an operation on his leg; his I-589 form stated
that he stayed at the hospital for ten days and that he had an
operation. Second, Loyo testified that the bullet went through his
left leg; one of his corroborating documents, however, stated that
he had been shot in his right leg and there was no exit wound.
Third, Loyo testified that he was shot in November 1999; his
supporting documents, however, indicate that the shooting occurred
on October 31, 1999. Fourth, Loyo testified that he applied for a
U.S. visa before he was shot; his Form I-589, however, said he
applied for the visa after he was released from the hospital.
Furthermore, the IJ found that Loyo had not sufficiently
corroborated his claims that he was shot in the leg during a
political campaign or that he was threatened after the alleged
shooting, thus undermining his claim that he was targeted for his
political beliefs. Accordingly, the IJ concluded that Loyo had not
established past persecution based on political affiliation. The
BIA affirmed, and Loyo now petitions for review.
II. Discussion
A. Standard of Review
Where, as here, the BIA summarily affirms the IJ's
decision, we review the IJ's decision. See Tota v. Gonzáles, 457
F.3d 161, 165 (1st Cir. 2006). We review the findings of fact and
the reasons given for substantial evidence, where the credibility
determination must be upheld "'unless any reasonable adjudicator
would be compelled to conclude to the contrary.'" Journal v.
Keisler, 507 F.3d 9, 12 (1st Cir. 2007) (quoting 8 U.S.C. § 1252(b)
(4)(B)).
B. Withholding of Removal
Loyo asserts that the IJ's determination and order of
removal was not based on substantial evidence and should be
vacated. He claims that he was not offered any opportunity to
explain any of these discrepancies, and such discrepancies did not
reach the heart of his claim. He also claims that he did not
obtain any additional corroborating evidence because he did not
know such evidence was necessary and he was not instructed to do so
by his counsel. We find his arguments unavailing.
Withholding of removal is a form of relief available to
an alien who establishes that it is more likely than not that he
would be persecuted if he returns to his country of origin. See 8
C.F.R. § 1208.16(b)(2); Journal, 507 F.3d at 13. An adverse
credibility determination disposes of an alien's claim of past
persecution. See Toloza-Jiménez v. Gonzáles, 457 F.3d 155, 160
(1st Cir. 2006) (citing Olujoke v. González, 411 F.3d 16, 22 (1st
Cir. 2005)). An alien may be found to be incredible based on
discrepancies in testimony where "(1) the discrepancies and
omissions described by the [IJ or BIA] are actually present; (2)
these discrepancies and omissions provide specific and cogent
reasons to conclude that the respondent provided incredible
testimony; and (3) the respondent has not provided a convincing
explanation for the discrepancies and omissions." In re A-S-, 21
I. & N. Dec. 1106, 1109 (BIA 1998); see also Hoxha v. Gonzáles, 446
F.3d 210, 216-17 (1st Cir. 2006).
Substantial evidence in the record supports the IJ's
finding that Loyo failed to meet his burden of establishing
eligibility for withholding of removal. The record supports the
IJ's finding that Loyo was not a credible witness, and he failed to
provide sufficient corroborating evidence. See 8 C.F.R. § 1208.13
(a). Loyo rests his entire relief application on a single incident
-- the alleged shooting -- that is not adequately documented, and
his story has numerous inconsistencies.
The IJ's credibility determination is supported by
substantial evidence. Loyo was given the opportunity to account
for the inconsistencies noted above during cross-examination at his
deportation hearing; he was unable to do so. Loyo could not
adequately explain the inconsistency regarding how long he was in
the hospital. His claim that he did not remember only serves to
render him more incredible.
[3]
Loyo's testimony as to other
inconsistencies in his supporting documents -- that they were
written in by Guatemalan officials who "write down whatever they
want" -- undermines the authenticity of the few documents he did
submit.
[4]
While some of the discrepancies may seem minor, "their
cumulative effect is great."
[5]
Pan v. Gonzáles, 489 F.3d 80, 86
(1st Cir. 2007). The IJ gave a "'specific, cogent, and supportable
explanation'" for his adverse credibility determination. Yosd v.
Mukasey, 514 F.3d 74, 80 (1st Cir. 2008) (quoting Heng v. Gonzáles,
493 F.3d 46, 48 (1st Cir. 2007)). Loyo has failed to meet the high
threshold of showing that a reasonable fact-finder would be
compelled to find otherwise.
C. Summary Affirmance Procedure
Loyo asserts that the BIA abused its discretion in using
the summary affirmance procedure in this case, and he challenges
this court's jurisdiction over his claim that the BIA violated the
summary affirmance procedure. He claims that summary affirmance
was not appropriate under 8 C.F.R. § 1003.1(e)(4)(i) because the
lower IJ opinion 1) was not correct, and 2) its errors were not
harmless or non-material. We disagree.
As we found above, the IJ's decision was correct and
supported by substantial evidence. As such, Loyo's statutory
argument fails. The BIA was within its statutory discretion to
utilize the summary affirmance procedure. See Hoxha, 446 F.3d at
220-21. The jurisdictional issue pointed out by the parties will
have to await resolution on another day. See Feliz v. Gonzáles,
487 F.3d 71, 75-76 (1st Cir. 2007).
III. Conclusion
For the reasons stated above, Loyo's petition is denied.
Denied.
Footnotes
[1] 'Of the Seventh Circuit, sitting by designation.
[2] 'We gather the facts as presented to the IJ, along with the
affidavit accompanying Loyo's withholding application, and consider
the agency's findings with respect to that evidence. See Sok v.
Mukasey, 526 F.3d 48, 50 (1st Cir. 2008).
[3] 'Loyo also testified that the night he left the hospital his
house was surrounded by people who dared him to come out, but when
he was asked about this incident on cross-examination and why he
had not mentioned it in his application, he twice claimed that he
had mentioned it in his application. The incident does not appear
in his application.
[4] 'The police report he submitted, for example, states only that
Loyo was shot while walking. The report does not mention anything
about a presidential motorcade or campaign.
[5] 'For example, Loyo was also unable to adequately explain why he
testified that his brother came to the United States in 2004 when
they were arrested together in 2003.
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