Julio Cesar Montes Garcia v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 27, 2006
• Docket: 06-12688
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT NOV 27, 2006 No. 06-12688 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

Agency Nos. A97-626-434 A97-626-435

JULIO CESAR MONTES GARCIA, OLGA LUCIA DUQUE LLANO,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(November 27, 2006)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM: I.

Julio Cesar Montes Garcia (“Garcia”), on behalf of himself and his wife

Olga Lucia Duque Llano, petitions this court for review of the Board of

Immigration Appeals’s (“BIA”) affirmance of the Immigration Judge’s (“IJ”) order

of removal and denial of asylum and withholding of removal.

Garcia, a native and citizen of Colombia, was admitted to the United States

on an immigrant visa in September 1998 and remained beyond the expiration

period. His wife was admitted in April 2000 and also remained beyond the

expiration period of her visa. The Immigration and Naturalization Service

(“INS”)1 then issued notices to appear in March 2004, charging them with

removability for having remained in the United States longer than permitted.

Immigration and Nationality Act § 237(a)(1)(B); 8 U.S.C. § 1227(a)(1)(B).

In August 2003, prior to the INS issuing notices to appear, Garcia filed an

asylum application alleging that he had been persecuted based on his political

activities and membership in a social group. Garcia indicated that he had been

active in a political campaign, the candidate for whom he had worked had been

killed, and members of his wife’s family had been threatened and kidnaped by

1 On November 25, 2002, President Bush signed into law the Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107-296, Stat. 2125. The HSA created a new Department of Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new department. 2 members of the Revolutionary Armed Forces of Colombia (“FARC”). Garcia

admitted that this asylum application was untimely, but argued that changes in

Colombia should excuse the delay.

At the removal hearing, the IJ expressed concern that Garcia’s asylum

application had been prepared by Excaliber Translations, Inc. (“Excaliber”), a

service the judge described as having previously filed applications with the court

that were highly suspect. As some of the applications from Excaliber had

previously been withdrawn after the petitioners had spoken with counsel, the IJ

wanted to give Garcia a chance to amend his application if necessary. In response,

Garcia moved the IJ to recuse himself based on bias. The IJ denied the motion.

Also at the removal hearing, Garcia conceded removability. He then

testified that in Colombia he had been active in the Liberal Party for over fifteen

years and had participated in health brigades and education programs. He also

discussed his involvement in a mayoral campaign in 1997, after which the

candidate had been killed. As a result of his activities, Garcia testified that he was

threatened by members of the FARC. Though Garcia admitted he was never

harmed by the FARC, he stated that he was afraid they would kidnap or kill him.

Garcia also told the IJ that a few months before coming to the United States in

1998 he received calls from members of the FARC in which the callers claimed

responsibility for killing the mayoral candidate and threatened that the same thing 3 would happen to him if he did not leave Colombia.

Garcia explained in the removal hearing that he did not file an asylum

application until 2003 because he had waited and hoped that the conditions in

Colombia would change. Garcia also stated that in May 2002 his wife’s cousin

was kidnaped by FARC. When asked why, after the events of 2002, he waited

until August 2003 to file his asylum application, Garcia testified that it took time to

find someone to help him make the filing.

The IJ denied relief and rejected Garcia’s motion to recuse. In doing so, the

IJ stated that he had not prejudged the case or shown any prejudice by informing

Garcia that there had been problems with Excaliber. The IJ also noted that the

proceedings were not rendered fundamentally unfair by his comments. The IJ then

found Garcia’s asylum application untimely and rejected his excuses of changed

circumstances and lack of knowledge of the process. While this determination

meant Garcia’s asylum application would be denied as a matter of law, the IJ also

found that it would have nevertheless been denied on the facts as presented. First,

the IJ found that Garcia lacked credibility based on his demeanor, the vague and

general nature of his testimony, and the omitted events and inconsistencies with

regard to his testimony. Second, the IJ determined that Garcia had not established

a country-wide fear. Finally, the IJ found that Garcia failed to provide sufficiently

detailed, believable, and consistent testimony to establish past persecution or a well 4 founded fear of future persecution. The IJ then concluded that because Garcia’s

application for asylum would have been denied on the facts, he failed the heavier

showing required to grant withholding. The IJ also denied protection under the

Convention Against Torture (“CAT”). Finally, the IJ found that Garcia’s

application was frivolous and fraudulent.

Petitioners appealed to the BIA. The BIA concluded that Garcia was not

denied a constitutionally fair hearing as a result of the IJ’s refusal to recuse

himself. The BIA further found that the asylum application was untimely and there

were no changed circumstances to excuse the delay. The BIA agreed with the IJ’s

credibility determination based on the IJ’s conclusions regarding Garcia’s

demeanor and his implausible and questionable testimony. The BIA also affirmed

the IJ’s decision to deny withholding of removal.2 With regard to the IJ’s

determination of frivolousness, however, the BIA reversed, finding that there was

insufficient evidence. Petitioners then initiated this petition for review.

II.

Garcia argues that the removal hearing was fundamentally unfair because

the IJ was predisposed to deny relief and to find Garcia lacked credibility. A Fifth

Amendment due process challenge to an immigration proceeding is reviewed de

novo. Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir. 2003). Recusal is

2 Petitioners did not appeal the IJ’s denial of relief under CAT to the BIA. 5 warranted if it is shown that “the immigration judge had a personal, rather than

judicial, basis stemming from an ‘extrajudicial’ source which resulted in an

opinion on the merits on some basis other than what the immigration judge learned

from his participation in the case.” Matter of Exame, 18 I&N Dec. 303, 306 (BIA

1982). Recusal is also appropriate where “such pervasive bias and prejudice is

shown by otherwise judicial conduct as would constitute bias against a party.” Id.

However, as the Supreme Court has explained, “opinions formed by the judge on

the basis of facts introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a basis for a bias or

partiality motion unless they display a deep-seated favoritism or antagonism that

would make fair judgement impossible.” Liteky v. United States, 510 U.S. 540,

555 (1994). Here, nothing in the record requires the IJ’s recusal. The IJ merely

expressed concern over previous applications submitted by Excaliber in other cases

and advised Garcia to discuss the issue with his counsel. This situation did not rise

to the level of bias or prejudicial conduct and, accordingly, there was no

fundamental unfairness in the proceeding.

Next, Garcia argues that this court has jurisdiction to consider whether his

application was timely and whether any exceptions exist to permit an untimely

application. Garcia also argues that the IJ was in error in determining that the facts

did not fall within the definition of changed or extraordinary circumstances. 6 Questions of subject-matter-jurisdiction are also reviewed de novo. Gonzalez-

Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). An asylum

application must be “filed within 1 year after the date of the alien’s arrival in the

United States.” 8 U.SC. § 1158(a)(2)(B). Here, there is no dispute that Garcia

arrived in 1998 and did not file his application until 2003. Thus, as Garcia

concedes, his application was untimely. Under 8 U.S.C. § 1158(a)(2)(D), however,

an untimely asylum application may be considered if the alien can demonstrate

extraordinary circumstances relating to the delay in filing an application within the

one-year period. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5). However,

“[n]o court shall have jurisdiction to review any determination of the Attorney

General under [section 1158(a)(2)].” 8 U.S.C. § 1158(a)(3). As such, “§

1158(a)(3) divests [this court] of jurisdiction to review a decision regarding

whether an alien complied with the one-year limit or established extraordinary

circumstances that would excuse his untimely filing.” Mendoza v. U.S. Att’y

Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); Fahim v. U.S. Att’y Gen., 278 F.3d

1216, 1217-18 (11th Cir. 2002). Despite this court’s retention of jurisdiction to

review constitutional claims or questions of law, timeliness of an asylum claim is

not a constitutional question or question of law. Chacon-Botero v. U.S. Att’y

Gen., 427 F.3d 954, 957 (11th Cir. 2005). Although Garcia argues that he is

challenging the IJ’s legal determinations regarding whether this situation fits 7 within the context of a changed circumstance, he is actually challenging the IJ’s

factual findings. Therefore, this court lacks jurisdiction over the asylum claim and

should dismiss the petition as to this ground.

Garcia then argues that he is entitled to withholding. When the BIA issues a

decision, we review only that decision, 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). To the extent the BIA’s or IJ’s decisions were based on a legal

determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-

48 (11th Cir. 2001). The BIA’s factual determinations are reviewed under the

substantial evidence test, and we must affirm if the decision “is supported by

reasonable, substantial, and probative evidence on the record as a whole.” Al

Najjar, 257 F.3d at 1283-84. The IJ’s factual determinations, however, are

reviewed under the “highly deferential substantial evidence test,” which requires us

to “view the record in the light most favorable to the [IJ’s] decision and draw all

reasonable inferences in favor of that decision.” Ruiz v. U.S. Att’y Gen., 440 F.3d

1247, 1255 (11th Cir. 2006); Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th

Cir. 2004) (en banc), cert. denied, 544 U.S. 1035 (2005). We “must affirm the

[IJ’s] decision if it is ‘supported by reasonable, substantial, and probative evidence

on the record considered as a whole.’” Al Najjar, 257 F.3d at 1284 (quoting

Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th Cir. 1997). Thus, “a finding of fact 8 will be reversed only when the record compels a reversal; the mere fact that the

record may support a contrary conclusion is not enough to justify a reversal of the

administrative findings.” Id. (quotation omitted); see also Silva v. U.S. Att’y Gen.,

448 F.3d 1229, 1236 (11th Cir. 2006).

Garcia first argues that the IJ’s credibility finding was erroneous because his

testimonial inconsistencies were minor, the IJ was biased, and the IJ improperly

refused to consider the opinion of Professor Marc Chernick regarding Colombian

political violence. A credibility determination is a factual finding reviewed under

the substantial evidence test, and this court should not “substitute [its] judgement

for that of the [IJ] with respect to credibility findings.” Ruiz v. U.S. Att’y Gen.,

440 F.3d 1247, 1255 (11th Cir. 2006); D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 818 (11th Cir. 2004). Furthermore, an IJ’s denial of relief can be supported

solely by an adverse credibility determination, especially if the alien produces no

corroborating evidence. In re Y-B, 21 I&N Dec. 1136, 1139 (BIA 1998). Finally,

a single inconsistency may be sufficient to support an adverse credibility finding if

the inconsistency relates to the alien’s basis for his fear and goes to the heart of the

asylum claim. Lui v. U.S. Att’y Gen., 156 Fed. Appx. 270 (11th Cir. 2005)

(unpublished). Here, there is substantial evidence to support the adverse credibility

finding, including the IJ’s factual findings regarding Garcia’s demeanor and eye

contact, the determinations by the asylum official, the IJ, and the BIA that Garcia 9 lacked credibility, and the inconsistencies in Garcia’s testimony.

Second, Garcia argues that he should receive withholding of removal

because he established past persecution and that it is more likely than not that, if

returned to Colombia, he will be persecuted due to his political beliefs. To qualify

for withholding of removal based on persecution by a guerilla group on account of

a political opinion, Garcia must establish that the guerillas persecuted him or will

seek to persecute him in the future because of his actual or imputed political

opinion. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004). This

standard is more stringent than the well-founded fear standard for asylum claims.

D-Muhumed, 388 F.3d at 819. Here, in light of the adverse credibility

determination, Garcia cannot meet this burden. After careful review of the record

as a whole, we conclude that Garcia cannot show past persecution or demonstrate

that it is more likely than not that he will be persecuted in the future.

Accordingly, we DISMISS the petition in part and DENY the petition in

part.