Alejandro Jose Barrios-Barrios v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 25, 2019
• Docket: 18-11860
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11860 Non-Argument Calendar ________________________

Agency No. A216-372-310

ALEJANDRO JOSE BARRIOS-BARRIOS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

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Before MARCUS, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

Alejandro Jose Barrios-Barrios seeks review of an order by the Board of

Immigration Appeals (BIA) affirming the denial of his application for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT). An Immigration Judge (IJ) denied all three claims based on her

determination that Barrios-Barrios was not credible, citing several inconsistencies

between his application and hearing testimony. Barrios-Barrios argues that the

BIA erred in affirming that decision because the inconsistencies were—in his

view—explainable, understandable, or otherwise insignificant. Because

substantial evidence supports the agency’s adverse credibility determination, we

deny the petition for review.

I.

Barrios-Barrios, a native and citizen of Venezuela, entered the United States

in 2016 on a B2 Visa, which allowed him to remain in the country until April 18,

2017. He overstayed his visit and—about three months after the visa expired—the

Department of Homeland Security issued a Notice to Appear charging him with

removability. Barrios-Barrios conceded the charge but requested asylum,

withholding of removal, and protection under the CAT. As support, he claimed

that he feared persecution and torture in Venezuela on account of his political

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opinion—specifically, his “outspokenness toward the socialist regime.” Among

other things, he asserted that pro-government forces had publicly beaten him;

imprisoned, starved, and tortured him for nearly fifteen days; and run his leg over

with a truck—all because of his political dissidence.

Barrios-Barrios presented his case, pro se, to an IJ on September 21, 2017.

After considering the evidence, the IJ concluded that Barrios-Barrios was not

credible based on several inconsistencies between his “written declaration in

support of his application” and his “testimony before the Court.” Barrios-Barrios

varied on several aspects of his story, including the manner and extent to which the

government had allegedly harmed him. For instance, he stated in his application

that police officers once tortured him by dousing him with water, denying him

regular food, and electrocuting his feet and testicles. Yet when describing these

events at the hearing, he testified that the police doused him with water, struck his

hands with a board, and squeezed his toes with pliers—but that nothing else had

happened to him while he was in jail. As another example, Barrios-Barrios

initially claimed that, in 2004, “Chavistas” injured “every part” of his body in “an

almost fatal beating,” but never mentioned that assault at his hearing—not even

when asked if “anything” happened to him after 2003.

Given these and other inconsistencies, the IJ deemed Barrios-Barrios “not

credible.” She also found that the “corroborating documentation” that he

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submitted was unavailing in the absence of credible testimony. Although the

background materials described conditions in Venezuela generally, they failed to

confirm the specifics of Barrios-Barrios’s case. Even the documents pertaining to

Barrios-Barrios only “vaguely” referenced a few incidents of persecution without

any “supporting details.” Barrios-Barrios appealed to the BIA, arguing that the

inconsistencies on which the IJ relied were “trivial.” The BIA, however, found

that they concerned “material aspects of his asylum claim, including the underlying

basis for the harm he allegedly suffered, how the harm was allegedly inflicted, and

the number of incidents of harm he allegedly suffered.” The agency also agreed

that Barrios-Barrios’s documentary evidence did not “independently satisfy his

burden.” Accordingly, the BIA adopted and affirmed the IJ’s decision. Barrios-

Barrios now petitions for review.

II.

The BIA’s factual findings, including credibility determinations, “are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Forgue v. U.S. Att’y Gen., 401

F.3d 1282, 1287 (11th Cir. 2005) (explaining that a “credibility determination, like

any fact finding, may not be overturned unless the record compels it” (internal

punctuation and citation omitted)). We thus review the BIA’s adverse credibility

determination for substantial evidence, which requires affirming that decision “if it

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is supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th

Cir. 2004) (citing Najjar v. Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001)). In

doing so, “we 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, 1027 (11th Cir. 2004) (en banc).

Moreover, an “adverse credibility determination alone may be sufficient to

support the denial of an asylum application.” Forgue, 401 F.3d at 1287 (citing D-

Muhumed, 388 F.3d at 819). To be sure, it “does not alleviate the IJ’s duty to

consider other evidence produced by an asylum applicant.” Id. But where that

other evidence fails to satisfy the applicant’s burden, an “adverse credibility

determination alone” will suffice to deny an applicant’s claims. D-Muhumed, 388

F.3d at 819; see also Lyashchynska v. U.S. Att’y Gen., 676 F.3d 962, 967 (11th Cir.

2012) (“An adverse credibility determination coupled with a lack of corroborating

evidence for a claim of persecution means that the applicant’s claim fails.”).

III.

Barrios-Barrios primarily argues that we should reverse the BIA’s adverse

credibility finding because it rests on inconsistencies that were “not significant.”

In his view, “an applicant’s testimony should be considered credible as long as it is

consistent with the general account put forward by the applicant.” That approach,

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however, ignores the discretion that the Immigration and Nationality Act (INA)

affords factfinders in making credibility determinations. See Chen v. U.S. Att’y

Gen., 463 F.3d 1228, 1233 (11th Cir. 2006) (per curiam). The statute expressly

permits an IJ to base a credibility finding on inconsistencies across an applicant’s

statements regardless of whether they go “to the heart of the applicant’s claim.” 8

U.S.C. § 1158(b)(1)(B)(iii); see also Chen, 463 F.3d at 1233 (rejecting applicant’s

argument that his inconsistencies were “trivial”).

Of course, an applicant’s inconsistencies must be “relevant” to his

credibility—in other words, they should at least bear on his truthfulness. 8 U.S.C.

§ 1158(b)(1)(B)(iii). For example, we once rejected an adverse credibility

determination based, in part, on the disparity between an applicant’s statement that

he was dragged to a “truck” and his testimony that he was dragged to a “car.”

Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1305 (11th Cir. 2009) (per curiam).

That mere “difference in terminology” was “wholly immaterial” and failed to

qualify as “an inconsistency of any importance.” Id. Here, by contrast, the BIA

found that Barrios-Barrios’s inconsistencies were not only relevant to his

credibility but also concerned “material aspects” of his claim, including the nature

of the abuse that he suffered. All things considered, we cannot say that “any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); see also Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1052 (11th

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Cir. 2009) (per curiam) (upholding adverse credibility determination based on

discrepancies over “the severity of the abuse” that the applicant suffered).

Beyond disputing the weight of his inconsistencies, Barrios-Barrios also

claims that some of them did not, in fact, exist. True enough, inconsistencies are

“not sufficient to support a finding of lack of credibility” when they are “not

inconsistencies at all.” Kueviakoe, 567 F.3d at 1305. The problem for Barrios-

Barrios is that the BIA did not rely on any phantom incongruities. For instance,

Barrios-Barrios insists that his account of an alleged assault, including his

description of the weapon used, “should not be regarded as inconsistent.” The

agency, however, correctly observed a discrepancy between his initial statement

that he was struck with a “machine gun right in the middle of my forehead” and his

hearing testimony that he was hit with a metal baton “all around my legs and my

feet.” Even if reasonable minds could disagree about whether a meaningful

difference exists between being struck in the head with a gun and being hit in the

legs with a baton, we simply cannot say that no difference exists at all.

Barrios-Barrios also asserts that his inconsistencies were “quite

understandable,” regardless of their magnitude, because he was nervous and

unrepresented at the hearing. That’s one possibility, but even “tenable”

explanations do not necessarily compel reversing credibility determinations. Chen,

463 F.3d at 1233; see also Shkambi, 584 F.3d at 1051 (finding that applicant’s

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“fear as an explanation for” his “omissions and inconsistencies” did “not compel a

conclusion that” he was credible). Moreover, we have repeatedly explained that

“this court may not substitute its judgment for that of the IJ with respect to

credibility findings.” Forgue, 401 F.3d at 1286 (citing D-Muhumed, 388 F.3d at

818). And whether an applicant’s inconsistent testimony should cast doubt on his

credibility or simply be chalked up to nerves strikes us as precisely the sort of

“judgment call” best left to the IJ. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1242

(11th Cir. 2006). After all, “Immigration Judges, not we, actually see and hear the

applicants for asylum testify.” Id. For similar reasons, we cannot upset the BIA’s

decision based on Barrios-Barrios’s suggestion that he might suffer from PTSD.

Although that could explain his inability to recount events with consistency, no

record evidence compels that conclusion. See Adefemi, 386 F.3d at 1027

(explaining that “we cannot find, or consider, facts not raised in the administrative

forum”).

More generally, Barrios-Barrios argues that the agency’s whole approach to

credibility determinations conflicts with the standard for establishing a “well-

founded fear of persecution,” as required to obtain asylum. As Barrios-Barrios

points out, the Supreme Court has explained that an asylum applicant need not

show that it is “more likely than not” that he will be persecuted. INS. v. Cardoza-

Fonseca, 480 U.S. 421, 431 (1987). Instead, it is enough that persecution is a

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“reasonable possibility.” Id. at 440 (quoting INS v. Stevic, 467 U.S. 407, 424–25

(1984)). Given that standard, Barrios-Barrios reasons that the BIA should not

make credibility determinations “in a manner that becomes the equivalent of

demanding proof that something is more likely than not to be true.” Pet’r Br. at

23–24 (emphasis added). But to conjoin those standards is to misunderstand them;

the fact that an applicant only needs to show a reasonable possibility of persecution

does not mean that he can skate by on a reasonable possibility that he is telling the

truth. Under the INA, only “credible” testimony can establish an applicant’s

eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(ii).

Finally, the documentary evidence that Barrios-Barrios submitted does not

compel a contrary conclusion. 1 As the IJ and BIA observed, many of these

documents—like the Human Rights Reports and a few of the newspaper articles—

described instances of political crime and retribution in Venezuela, but did not

involve, much less confirm, Barrios-Barrios’s specific claims of persecution.

Those kinds of background materials cannot independently sustain (or doom) a

claim for relief unless “they comment upon or are relevant to the highly specific

question of whether this individual suffered persecution.” Tang v. U.S. Att’y Gen.,

1 The IJ likewise did not err in declining to consider documents that Barrios-Barrios provided after the deadline that the IJ had set for submitting evidence. See Kueviakoe, 567 F.3d at 1306 n.3 (finding that the “IJ did not abuse its discretion by refusing to consider . . . untimely exhibits”). 9 Case: 18-11860 Date Filed: 02/25/2019 Page: 10 of 11

578 F.3d 1270, 1280 (11th Cir. 2009) (citing Chen v. INS, 359 F.3d 121, 131 (2d

Cir. 2004)); see also Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006)

(per curiam) (upholding denial of asylum despite country report detailing political

persecution generally because “the petitioners failed to demonstrate that they will

be singled out for persecution” (emphasis added)). Moreover, the documents that

actually mentioned Barrios-Barrios—such as the declarations from his family

members—failed to satisfy his burden because they largely exacerbated, rather

than clarified, the discrepancies in his testimony.

Nor does the record support, let alone compel, the conclusion that the IJ

“ignored” this corroborating evidence. Barrios-Barrios argues, for example, that

the IJ “failed to acknowledge” a newspaper article quoting then-President Chavez

as saying that the political “opposition has to be killed.” We have, however,

repeatedly stressed that neither the IJ nor the BIA needs to “address specifically

each claim the petitioner made or each piece of evidence the petitioner presented.”

Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009) (quoting Tan

v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006)). In any event, far from

ignoring this evidence, the IJ merely concluded that it failed to substantiate

Barrios-Barrios’s claim that the government had “hired local criminals” to kill

political opponents “with impunity.” The fact that Barrios-Barrios and the IJ

disagreed over the import of the evidence does not mean that the IJ failed to

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consider it. Although the IJ “was obligated to consider” the documentary

evidence, she “was under no obligation to credit it or assign it decisive weight.”

Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1347 (11th Cir. 2008).

IV.

In sum, we find that substantial evidence supports the BIA’s adverse

credibility determination and, in turn, the agency’s denial of asylum. To that end,

we also conclude that the BIA properly denied Barrios-Barrios’s claims for

withholding of removal and protection under the CAT. See D-Muhumed, 388 F.3d

at 819 (explaining that because applicant “cannot meet the ‘well-founded fear’

standard for asylum, it is a fortiori that he cannot meet the withholding of removal

standard”); Forgue, 401 F.3d at 1288 n.4 (“Because Forgue has failed to establish

a claim of asylum on the merits, he necessarily fails to establish eligibility for

withholding of removal or protection under CAT.” (citing Najjar, 257 F.3d at

1292–93)). We therefore deny Barrios-Barrios’s petition for review.

PETITION DENIED.