Martelo, et al., v. US Atty General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 16, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-10137
Non-Argument Calendar
________________________
Agency No. A098-940-038
ROSA ELVIRA DE LA ESPRIELLA MARTELO,
JOSE ALFREDO CONSTANTINO PRASCA,
lllllllllllllllllllll Petitioners,
versus
UNITED STATES ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 16, 2010)
Before BARKETT, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Rosa Elvira de la Espriella Martelo (“Martelo”) and her husband Jose
Alfredo Constantino Prasca (“Prasca”), citizens of Colombia, petition this Court

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for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order denying Martelo’s application for asylum and
withholding of removal. Martelo argues that she was persecuted in Colombia,1
and would be again if she returned, by the Fuerzas Armadas Revolucionarias de
Colombia (“the FARC”) on account of her political opinion. The IJ denied asylum
and withholding based on his finding that Martelo was not credible. On appeal,
she argues that the IJ’s finding, which the BIA affirmed, is not supported by
substantial evidence in the record.
When the BIA issues a decision, we review only that decision, but to the
extent the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well. Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA agreed
with the IJ’s reasoning. Accordingly, we review both the BIA decision and the
IJ’s decision.
We review factual findings, including credibility determinations, under the
substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th
Cir. 2005). Under this standard, we affirm a factual finding “if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1284 (internal quotation marks omitted). We will
Prasca sought asylum as a derivative beneficiary of Martelo’s asylum application.1
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not reverse a factual finding unless “the evidence compels a reasonable fact finder
to find otherwise.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir.2006)
(internal quotation marks omitted).
To establish asylum eligibility, an applicant must prove that he or she is a
“refugee” under the Immigration and Nationality Act. 8 U.S.C. § 1158(b)(1); see
also Al Najjar, 257 F.3d at 1284. A refugee must have (1) suffered past
persecution on account of his or her social group, political opinion, or any other
protected ground, or (2) a “well-founded fear” that his or her social group,
political opinion, or any other protected ground will cause future persecution.
8 C.F.R. § 208.13(b). To qualify for withholding of removal, an applicant must
have established that it is more likely than not that her life or freedom would be
threatened on account of a statutorily protected factor if returned to her home
country. 8 U.S.C. § 1231(b)(3).
An applicant’s own testimony “can suffice [to show eligibility for asylum or
withholding] where the testimony is believable, consistent, and sufficiently
detailed.” Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1217 (11th Cir. 2007)
(quoting In re S-M-J, 21 I. & N. Dec. 722 (BIA 1997)). However, “in the absence
of corroborating evidence, an adverse credibility determination may be sufficient
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to support the denial of an application.” Mohammed v. U.S. Att’y Gen., 547 F.3d
1340, 1345 (11th Cir. 2008) (quotations omitted).
Here, the IJ’s credibility determination was supported by substantial
evidence in the record and therefore the BIA properly affirmed it. The IJ and BIA
noted that Martelo’s claim changed over time, and noted material inconsistencies
between Martelo’s credible fear interview, asylum application, updated asylum
application, supplemental declaration, and testimony at the removal hearing.
Although her asylum claim is based on alleged persecution on account of her
political opinion, Martelo did not mention that she was a member of a political
organization or any other group until 2008, right before her asylum hearing.
Martelo originally maintained that the FARC retaliated against her for refusing to
provide them with medical services, which under circuit’s case law is not a
protected ground for which asylum is available. See Rodriguez-Morales v. U.S.
Att’y Gen., 488 F.3d 884 (11th Cir. 2007). Although she had multiple
opportunities to describe the reasons why she felt she was persecuted – for
example, in her asylum application and her updated asylum application – she did
not disclose facts indicating she belonged to any political group or held any
political opinion for which she faced persecution until the eve of her asylum
hearing.
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For these reasons, substantial evidence supports the immigration courts’
adverse credibility determination and resulting denial of Martelo and Prasca’s
application for asylum and withholding of removal. Accordingly, we deny the
petition for review.
PETITION DENIED.
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