Nieves v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEP 16, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10788
Non-Argument Calendar
________________________
Agency No. A088-044-275
DIOSCAR ORLANDO DELGADO NIEVES,
ESTHER MARIA BOHORQUEZ,
JOSE ANGEL DELGADO BOHORQUEZ,
JUAN ANDRES DELGADO BOHORQUEZ,
llllllllllllllllllllllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 16, 2011)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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Dioscar Orlando Delgado Nieves, his wife, Esther Maria Bohorquez, and
their two sons, all of whom are natives and citizens of Venezuela, petition this
Court for review of the decision of the Board of Immigration Appeals that denied
Delgado’s application for asylum. The Board “agree[d] with the [finding of the]
immigration judge” that Delgado was not credible. We deny the petition.
We review credibility determinations under the substantial evidence test.
Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th Cir. 2006). Adverse
credibility findings will be reversed “‘only if the evidence “compels” a reasonable
fact finder to find otherwise.’” Id. at 1231 (quoting Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1230 (11th Cir. 2005)). An adverse credibility determination may
be based on inconsistencies, inaccuracies, and falsehoods in the applicant’s oral
and written statements. 8 U.S.C. § 1158(b)(1)(B)(iii).
Substantial evidence supports the finding that Delgado was not credible.
Although there were several inconsistencies between Delgado’s application for
asylum, his credible fear interview, and his testimony, the Board and the
immigration judge gave “specific, cogent reasons” related to Delgado’s accounts
of two incidents to support the adverse credibility determination. See Chen, 463
F.3d at 1231. During the first incident, members of the Bolivarian Circles
allegedly assaulted Delgado during a demonstration, but Delgado provided two
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different dates on which the incident purportedly occurred. Delgado also gave
inconsistent accounts about his injuries: in his application, Delgado stated that his
assailants injured his chest and arm; during his credible fear interview, Delgado
said that he was struck in his chest and elbow; and later, during his evidentiary
hearing, Delgado testified that he sustained an injury to his wrist that required
surgery and left a scar that he showed to the immigration judge. About three years
after Delgado applied for asylum, he recalled purportedly a second incident in
which he was shot by members of the Bolivarian Circles and received gunshot
wounds in his upper body that left a pellet lodged in the right side of his head.
Despite Delgado’s insistence that the shooting prompted him to leave Venezuela,
Delgado failed to mention this incident in his application or his credible fear
interview, and his two former neighbors failed to mention the incident in their
letters about Delgado’s persecution in Venezuela. See Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1287–88 (11th Cir. 2005). Although Delgado blames his
inconsistences and omissions on his lack of education and legal training, that
explanation is inconsistent with his ability to recollect and describe other alleged
incidents of persecution and does not “compel a reasonable fact finder” to reverse
the adverse credibility finding. Chen, 463 F.3d at 1231.
We DENY Delgado’s petition for review.
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