Filed: Oct. 14, 2020
Latest Update: Oct. 14, 2020
Summary: USCA11 Case: 19-14213 Date Filed: 10/14/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-14213 Non-Argument Calendar _ Agency No. A205-353-277 WALTER ALBERTO GARCIA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (October 14, 2020) Before GRANT, LUCK and BLACK, Circuit Judges. PER CURIAM: USCA11 Case: 19-14213 Date Filed: 10/14/2020 Page: 2 of 9 Walter Albe
Summary: USCA11 Case: 19-14213 Date Filed: 10/14/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-14213 Non-Argument Calendar _ Agency No. A205-353-277 WALTER ALBERTO GARCIA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (October 14, 2020) Before GRANT, LUCK and BLACK, Circuit Judges. PER CURIAM: USCA11 Case: 19-14213 Date Filed: 10/14/2020 Page: 2 of 9 Walter Alber..
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USCA11 Case: 19-14213 Date Filed: 10/14/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14213
Non-Argument Calendar
________________________
Agency No. A205-353-277
WALTER ALBERTO GARCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 14, 2020)
Before GRANT, LUCK and BLACK, Circuit Judges.
PER CURIAM:
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Walter Alberto Garcia, a native and citizen of Nicaragua, petitions for
review of an order of the Board of Immigration Appeals (BIA) affirming the
Immigration Judge (IJ)’s denial of his application for asylum and withholding of
removal. 1 Garcia argues the BIA and IJ erred in finding his testimony was not
credible or corroborated by sufficient evidence. After review, 2 we deny the
petition.
I. DISCUSSION
An asylum applicant must meet the definition of a refugee under the
Immigration and Nationality Act (INA). 8 U.S.C. § 1158(b)(1). The INA defines
a refugee 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 a protected ground, including
political opinion. Id. § 1101(a)(42)(A). The standard for withholding of removal
1
The BIA explained the IJ denied Garcia’s asylum claim as time-barred but did not
expressly affirm the denial of asylum on this basis or address Garcia’s changed circumstances
argument. Instead, the BIA affirmed the denial of asylum and withholding of removal based on
an adverse credibility finding. We therefore reject the government’s contention Garcia has
abandoned his asylum claim or that we lack jurisdiction to review it.
2
We review factual findings under the highly deferential 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). Because the BIA agreed with the IJ’s reasoning, we review
the decisions of both the BIA and IJ to the extent of the agreement. See Kazemzadeh v. U.S.
Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009).
2
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is more stringent, requiring an applicant to show he would “more likely than not”
be persecuted or tortured upon return to his country because of a protected ground.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). An
applicant’s credible testimony may be sufficient to sustain the burden of proof for
asylum or withholding of removal without corroboration. See 8 C.F.R.
§§ 208.13(a), 208.16(b). Conversely, the denial of relief “can be supported solely
by an adverse credibility determination, especially if the alien fails to produce
corroborating evidence.” Lyashchynska v. U.S. Att’y Gen.,
676 F.3d 962, 967
(11th Cir. 2012). Where an applicant produces evidence of persecution other than
his testimony, “the IJ must consider that evidence, and it is not sufficient for the IJ
to rely solely on an adverse credibility determination in those instances.” Forgue
v. U.S. Att’y Gen.,
401 F.3d 1282, 1287 (11th Cir. 2005).
Under the REAL ID Act of 2005, credibility determinations are evaluated
under the totality of the circumstances and may be based on “the demeanor,
candor, or responsiveness of the applicant,” the plausibility of the applicant’s
account, the consistency of the applicant’s written and oral statements considering
the circumstances under which they were made, “the internal consistency of each
such statement, the consistency of such statements with other evidence of record
. . . and any inaccuracies or falsehoods in such statements.” 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C). An adverse credibility finding must be
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supported by “specific, cogent reasons,” and once such finding is made, the burden
is on the applicant to show the decision was not supported by such reasons or
based on substantial evidence. Forgue, 1201 F.3d at 1287.
1. Credibility
The BIA found no clear error in the IJ’s adverse credibility finding, agreeing
Garcia’s testimony concerning his political involvement and alleged persecution by
the Sandinista regime was “general, vague, confusing, and inconsistent.” Despite
Garcia’s arguments to the contrary, substantial evidence supports this finding,
including Garcia’s failure to adequately explain certain events, inconsistencies in
his testimony, and his inability to provide sufficient detail regarding his political
activities in Nicaragua. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir.
2006) (stating we must affirm if the BIA’s decision is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole”)
(quotation marks omitted).
The BIA and IJ found Garcia had failed to explain why his brother Francisco
had been killed by Sandinista supporters in 1996, what actions caused his other
brother Rolando to flee Nicaragua for the United States soon after, and why, if his
brothers had been persecuted because of their opposition to the Sandinistas, Garcia
himself was not targeted until 2009. Although Garcia testified Francisco was
killed in an ambush while delivering supplies to anti-Sandinistas, the IJ found
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Garcia failed to provide sufficient details concerning the nature and extent of
Francisco’s political involvement, which would explain why Francisco had been
targeted. Moreover, the IJ found it implausible Garcia did not have problems with
the Sandinistas until 2009, even though he testified he was in the truck with his
brother during the ambush. Garcia argues his persecution began when he created
an anti-Sandinista flyer in 2009, but this explanation does not address why Garcia
was not targeted before then, or the other deficiencies the BIA and IJ identified.
The BIA and IJ also found Garcia failed to explain what the flyer meant,
why its message was anti-Sandinista, or why, given Garcia’s testimony the flyer
was motivated by Francisco’s death and Rolando’s flight from Nicaragua, Garcia
had waited so long to create it. Garcia contends the IJ gave no weight to his “own
opposition to the government,” and failed to give him an adequate opportunity to
explain the meaning of the flyer. Nevertheless, this does not explain the delay in
creating the flyer to the extent it was linked to what happened to his brothers. See
Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006) (noting tenable
explanation for implausible aspect of testimony does not necessarily compel
reversal). Further, the record shows Garcia was given the opportunity to answer
specific questions about the flyer and provide details about its meaning but was
unable to do so.
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The BIA and IJ also noted several inconsistencies regarding the distribution
of the flyer. Garcia indicated in his asylum application he had created the flyer as
part of his work as a designer for the newspaper La Prensa and “designed one page
on the newspaper,” but testified before the IJ he designed the flyer on his own and
distributed it at bus stops. In addition, Garcia stated in his asylum application he
received a notice from the government demanding a retraction, but testified before
the IJ the notice was sent to his superior at La Presna. Garcia argues he was not
given an opportunity to explain these discrepancies but does not indicate what
caused them. In addition, the record shows the Government asked about the
discrepancy as to who received the notice on cross-examination.
The BIA and IJ also found Garcia failed to provide sufficient details about
his work as a route leader for the Liberal Constitutional Party (PLC) in 1997 and
2002. Garcia contends he explained this role involved propaganda and publicity
and argues the IJ should have asked for further details. However, the record shows
when the IJ asked Garcia to describe his role, he provided only a general answer.
Though Garcia challenges several other inconsistencies the BIA and IJ relied
on, the record as a whole does not compel reversal. See Ruiz, 440 F.3d at 1255
(providing a finding of fact will be reversed under the substantial evidence test
only when the record compels reversal, not merely because the record may support
a contrary conclusion). The BIA and IJ found an inconsistency between Garcia’s
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testimony that he worked for the Nicaraguan presidency for three years and a letter
from a PLC leader, Guillermo Callejas, stating he worked there from 2004 to 2006.
It is unclear whether these timeframes are actually inconsistent, as Garcia does not
explain specifically when his employment began and ended, but we are not
compelled to reverse on this basis, given the other inconsistencies and implausible
aspects of Garcia’s testimony the BIA and IJ relied on.
The BIA and IJ also found neither the Callejas letter nor another letter from
the former Nicaraguan president’s private secretary confirmed Garcia worked as an
official government employee. Notably, the private secretary’s letter was
requested in 2012, but dated 2005, and spoke only to Garcia’s moral character.
While Garcia now contends this letter must be read in conjunction with another
from the private secretary attached to his asylum application and confirming his
official employment, he did not raise this argument before the BIA and could not
explain at his hearing why the letter was dated 2005. Thus, the BIA and IJ’s
conclusions about the letters do not compel reversal either.
Finally, the BIA and IJ noted an inconsistency between Garcia’s testimony
that he was beaten and released by Sandinista supporters and his claim Sandinistas
generally make their enemies disappear. Garcia argues it was error for the agency
to conclude his persecutors would not kill him in the future because they had not
done so in the past. To the extent this finding is based on improper speculation,
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however, the other deficiencies in Garcia’s testimony support the conclusion he
was not credible. See Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1278 (11th Cir.
2009) (providing reversal is appropriate where adverse credibility determination is
based solely on speculation and conjecture).
2. Corroboration
Substantial evidence also supports the finding Garcia failed to sufficiently
corroborate his testimony. See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th
Cir. 2005) (“The weaker an applicant’s testimony . . . the greater the need for
corroborative evidence.”). The BIA and IJ observed Garcia had submitted no
testimony from his brother Rolando, even though Rolando had been granted
residency in the United States and lived with Garcia. Further, the BIA noted
although Garcia provided medical records showing he, his girlfriend, and his father
received treatment for injuries, the records did not indicate these injuries were
inflicted by Sandinista supporters. Finally, the BIA found two letters Garcia
submitted failed to corroborate his testimony. One stated only that Rolando was a
member of the Nicaraguan Resistance and had been forced to leave the country,
without providing details about his specific activities. The other, written by an
individual from whom Garcia had sought protection, briefly stated Garcia and his
family had been victims of attacks by Sandinistas, acknowledging attempts had
been made on Garcia’s life, one of Garcia’s brothers had been killed, and Garcia’s
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father had been shot, but provided no details about these incidents. On this record,
and in the absence of any other corroborating evidence identified by Garcia,
substantial evidence supports the BIA and IJ’s finding Garcia failed to corroborate
his testimony.
II. CONCLUSION
For the reasons above, substantial evidence supports the BIA and IJ’s
finding Garcia’s testimony was not credible or corroborated by sufficient evidence.
Accordingly, we deny Garcia’s petition.
PETITION DENIED.
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