Max Daniel Lange Wulff, et al. v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 5, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13715
Non-Argument Calendar
________________________
Agency No. A200-634-256
MAX DANIEL LANGE WULFF,
MARIA EUGENIA LIMA DONIZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 5, 2012)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:

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Max Daniel Lange Wulff and Maria Eugenia Lima Doniz (collectively, “the
petitioners”), natives and citizens of Venezuela, seek review of the Board of
Immigration Appeal’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”)
denial of their application for asylum, withholding of removal under the Immigration
and Nationality Act (“INA”), and withholding of removal under the United Nations
Convention Against Torture (“CAT”). On appeal, the petitioners argue that: (1)
substantial evidence does not support the BIA’s finding that Wulff did not testify
credibly, which was based upon inconsistencies between the administrative record
and Wulff’s testimony regarding four encounters with Venezuelan officials or
government sympathizers, and that their evidence sufficiently corroborated Wulff’s
testimony; and (2) the BIA and IJ violated their substantive and procedural due
process rights. After careful review, we deny the petition in part, and dismiss it in
part.
Where the BIA issues its own opinion, we review only the BIA’s decision,
except to the extent that it expressly adopts the IJ’s decision. Kueviakoe v. U.S. Att’y
Gen., 567 F.3d 1301, 1304 (11th Cir. 2009).
We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to review the
BIA’s determination that an applicant is ineligible for asylum because he did not file
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a timely asylum application and that changed or extraordinary circumstances did not
excuse the untimely filing. 8 U.S.C. § 1158(a)(3); Chacon-Botero v. U.S. Att’y Gen.,
427 F.3d 954, 956-57 (11th Cir. 2005). We also lack jurisdiction to consider a claim
raised in a petition for review unless the petitioner exhausted his administrative
remedies with respect to that issue. 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga, 463
F.3d at 1250.
We review the BIA’s factual findings, including credibility determinations,
under the substantial evidence standard. Kueviakoe, 567 F.3d at 1304. We must
affirm the BIA’s decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole. Delgado v. U.S. Att’y Gen., 487 F.3d
855, 860 (11th Cir. 2007). Evidence must be viewed in the light most favorable to
the BIA’s decision, and we draw all inferences in favor of that decision. Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Only if the record compels
it may we reverse the BIA’s factual findings. Id.
An applicant must establish eligibility for relief from removal by offering
credible, direct, and specific evidence. Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1287 (11th Cir. 2005). Indications of reliable testimony include consistency on direct
examination, consistency with the written application, and the absence of
embellishment. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).
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While the applicant’s credible testimony, alone, may be sufficient to establish
eligibility for relief from removal, an adverse-credibility determination may be
sufficient to deny relief where there is no other evidence of persecution. Forgue, 401
F.3d at 1287. Moreover, as the applicant’s testimony becomes weaker, the greater the
need for corroborative evidence becomes. See Yang v. U.S. Att’y Gen., 418 F.3d
1198, 1201 (11th Cir. 2005). The BIA must make a clean determination of
credibility, which requires it to expressly state its credibility finding. See id. It must
offer specific, cogent reasons for an adverse-credibility finding, and, upon such a
finding, the applicant bears the burden of showing that it was not supported by
specific, cogent reasons, or that it was not based upon substantial evidence. Forgue,
401 F.3d at 1287.
The REAL ID Act of 2005 governs credibility determinations regarding
applications for asylum and withholding of removal filed after May 11, 2005.
Kueviakoe, 567 F.3d at 1305. That statute reads:
Considering the totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written or oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
consistency of each such statement, the consistency of such statements
with other evidence of record (including the reports of the Department
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of State on country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency, inaccuracy,
or falsehood goes to the heart of the applicant’s claim, or any other
relevant factor. There is no presumption of credibility, however, if no
adverse-credibility determination is explicitly made, the applicant or
witness shall have a rebuttable presumption of credibility on appeal.
8 U.S.C. § 1158(b)(1)(B)(iii). Because of the petitioner’s burden and the
totality-of-the-circumstances test, tenable explanations for inconsistencies or
implausibilities are not sufficient to reverse a BIA’s adverse-credibility findings if the
explanation would not compel a reasonable factfinder to reverse the finding. See
Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006).
We have permitted the BIA to rely upon omissions and inconsistencies between
an applicant’s testimony and his interviews with asylum officers, especially where the
hearing testimony “actually contradicts” and “cannot be squared with” the interview.
See Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049-52 (11th Cir. 2009) (upholding
an adverse-credibility finding based upon omissions in the applicant’s airport and
credible-fear interviews and inconsistencies between those interviews and the
applicant’s testimony). Thus, we have upheld reliance on omissions from, and
inconsistencies in, interviews where they did not merely give a less detailed version
of the facts, but omitted entire incidents and other significant facts, and directly
contradicted subsequent testimony. See id.
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As an initial matter, there are a number of issues not properly before us. With
respect to the petitioners’ asylum claim, we do not have jurisdiction to review the
BIA’s conclusion that they were ineligible for asylum because they filed an untimely
application that was not excepted by changed or extraordinary circumstances. See
Chacon-Botero, 427 F.3d at 956-57. Further, to the extent the petitioners seek to
argue on appeal that the agency erred by relying on the asylum officer’s notes, as
opposed to the content of the asylum interview itself, they did not raise this argument
before the BIA and we are without jurisdiction to consider it. See
Amaya-Artunduaga, 463 F.3d at 1250. Finally, we do not have jurisdiction to
consider the petitioners’ arguments that the agency violated their substantive and
procedural due process rights because they did not raise these claims before the BIA.
See id. In any case, even if the petitioners were not required to exhaust their
substantive due process claim, they have abandoned it on appeal because they only
made a passing mention of the claim and offered no substantive argument. See
Sepulveda, 401 F.3d at 1228 n.2. Accordingly, we dismiss the petition for review to
the extent that the petitioners seek to raise these claims.
With respect to the petitioners’ claims for withholding of removal and CAT
relief, the record does not compel a finding that Wulff testified credibly when read
in a light most favorably to the BIA’s decision. The BIA relied upon a number of
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inconsistencies in the record in support of its adverse-credibility finding, including
inconsistencies regarding the date on which an individual struck Wulff’s vehicle three
times. Although Wulff testified that this incident occurred on November 16, 2000,
a police report indicated that he informed Venezuelan law enforcement that this
incident took place on September 16, 2000. The BIA recognized that this was a
minor inconsistency, but the record plainly refutes the petitioners’ argument that the
BIA rested the adverse-credibility finding solely upon it.
Indeed, the BIA also relied upon Wulff’s omission of incidents occurring on
August 15, 2000, and September/November 16, 2000, from his asylum interview.
These were the types of omissions that we have permitted the BIA to rely upon, as
Wulff told the asylum officer that he suffered only one attack or threat and proceeded
to describe the September 14, 2001, incident. He then told the asylum officer that
there were no other incidents. Thus, Wulff’s statements before the asylum officer
foreclosed the possibility that incidents other than the one on September 14, 2001,
occurred.
Inconsistencies in the record also existed with respect to incidents occurring
on December 19, 2000, and September 14, 2001, which further supported the BIA’s
adverse-credibility finding. In his asylum interview, Wulff denied that the National
Guardsmen had harmed him during the December 19, 2000, incident, but testified and
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provided other evidence that they caused him injuries that required medical attention.
As to the September 14, 2001, incident, Wulff testified that three Bolivarian Circles
members, who wore red berets, attacked him and Acevedo, and that the assault lasted
one hour. Wulff’s statement, however, indicates that there were four individuals
involved in this attack, and he told the asylum officer that the assault lasted a couple
of hours, and that his assailants wore regular clothes and wore no red.
In light of the inconsistencies between Wulff’s testimony and the record, a
greater need for corroborative evidence arose. See Yang, 418 F.3d at 1201.
Substantial evidence, however, supports the BIA’s finding that Wulff’s corroborative
evidence did not resolve the inconsistencies. One of the police reports that the
petitioners submitted created one of the inconsistencies upon which the BIA relied,
and, in any case, the reports only relayed Wulff’s own statements regarding the
incidents that were made at least eight years after the incidents. Likewise, while the
medical documentation regarding the December 19, 2000, incident may have
provided some resolution as to whether Wulff suffered any harm that day, neither of
the medical reports spoke to any of the other inconsistencies that the BIA identified.
Wulff’s family members provided affidavits, but they only generally asserted that
Venezuelan officials persecuted Wulff and did not offer any basis to corroborate the
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specific facts of that alleged persecution. Finally, the petitioners’ remaining evidence
did not speak to the specifics of the alleged persecution against Wulff.
Because of the inconsistencies between Wulff’s testimony and the record, and
the lack of sufficient corroborative evidence, substantial evidence supports the BIA’s
adverse-credibility finding. Although the petitioners asserted plausible explanations
for the inconsistencies throughout the proceedings, they were not such as to compel
a finding that Wulff testified credibly. See Chen, 463 F.3d at 1233. In light of the
adverse-credibility finding, the record does not compel a reversal of the BIA’s denial
of withholding of removal and CAT relief. Accordingly, we deny the petition for
review with respect to these claims.
PETITION DISMISSED IN PART, DENIED IN PART.
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