NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0531n.06 No. 11-3358 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

FRI ERI MI SAEL J UAREZ -F UENTES, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETI T I ON FOR REVI EW OF A D E C I S I O N O F T H E B O A R D O F I MMI GRATI ON APPEAL S

OPI NI ON

Before: M OORE, S UTTON, and STRANCH, Circuit Judges. JANE B. STRANCH, Circuit Judge

. Fr ieri Misael J uare z-Fuente s (“Petitioner” ), a citizen of Guatema la, petitions for revie w of a final o rd er o f the Boa rd of I mmigra tion Appea ls (“B I A”) af fi rm ing the decision of the I mmigra tion J udg e (“I J ”) deny ing his reque st for withholdin g o f

remova l under the I mmigra tion and Nationality Act and relief under the Convention Ag ainst Torture (“CAT” ). We conclude that the BI A’s decision deny ing relief was sup p o rt ed b y substantial 1 evidenc e. Ac cording ly , the petition for re view is DENI ED.

I. F ACTS AND P ROCEDURAL HISTORY We g lean the following fac ts fr o m P et i t ioner’s testimony befor e the I J

. Petitioner first enter ed the United States illeg ally in 1991 a nd resided in F lorida. Having just rece ived a tea ching

cer tificate in Guatema la in 1990, he fea red harm from the g uerr illas and para milit ary g roups who

Petitioner conce ded he is remova ble, and he did not pursue asy lum befor e the I J

. AR at 153. 1 1disliked teac hers and o t h er p ro fessionals. Whil e living in Florida , Petitioner conver ted from the Catholic to the Pentecostal faith. He rema ined in this country until 1992 when he voluntarily depar ted to Guatema la af

ter his applica tion for asy lum was denied. Petitioner worke d as a secur ity g uard in G uatemala for five y ear s betwee n 1992 and 1998. Be cause h e ca rried a g un, he did not have difficulty with para milit ary g roups. I n 1998 and 1999, P etitioner taug ht elementa ry school and used public transporta tion to g et to and fro m wo rk

. Although a peac e acc ord had been rea ched two y ear s ear lier, para milit ary g roups continued to hara ss citizens. Guer

rillas occa sionally boarde d the p u b li c b u s e s a

n d d e ma n d e d mo ney from all passeng ers. The g uerr illas b e a

t Pe titioner and demande d money from him sever al times. Acc ording to Petitioner, teac hers discourag ed communism and counsele d people not to take the law into their own hands, so g uerr illas did not like them. Petitioner lear ned from others in the community that g uerr illas had kidnapped tea cher s on sever al occ asions, but Petiti oner did not witness any abductions. Petitioner rema ined active in the Pentecostal faith while he lived in Guatema la. He c o n v e r ted his children and his extended family members, except his wife, to his new faith. Petitioner and a few neig hbors started a Pentecostal churc h and eventua lly purcha sed land on which they ere cted a churc h building. Church members went door- t o -d o o r try ing to conver

t people. Petitioner also started a Good Samaritan g roup in his community to encour ag e children and tee n ager s to stay awa y from g ang s and drug s. P et i t ioner’s relig ious activities cause d problems for him beca use near ly ever

y one in th e community was Catholic. People called him a “hy pocrite” bec au s e h e p reviously prac ticed Catholicism and was a leade r in t h e C at holic churc h. People threw rocks at him, and the “Catec hists” beat him four to five times for prea ching the Gospel in the comm u n i t y . Gang s also

2assaulted him about twenty times be tween 1993 and 2000 for prea ching the Gospel, but he did not

repor t these assaults to the police. During one assault, all five fing ers on his rig ht hand wer e broken. He r ece ived holistic treatment for this inj ury . Petitioner’s brother, Ara

mis J uare z-Fuente s, beg an study ing to be a pastor in 2002. I n 2004 he took over

as minist er of the Powerful Unction and Mira cles Pentec ostal Church in Guate mala. “Catec hists” also assaulted Ara mis on sever al occa sions beca use he prea ches the Pentecostal faith. Petitioner returne d to the United States illega lly in A pril 2000, leaving behind his wife and three ch ildren. He settled in Geor g ia and fathe red three more children. He attends a Pentecostal churc h and sends monetary support to sever al Pentecostal churc hes in Guatema la, althoug h he does not keep any rec eipts for wire transfe rs of funds. He produce d letters from four Guatema lan pastors, including his brothe r, thanking him for supporting the chur ches a nd sending money . I n addition to the d i ff

i cu l t i es alre ady mentioned, Petitioner explained that his fea r of perse cution in Guatema la arises in part from sever al experience s he had as a child. He rec alled that members of FARC, t he revolutionary arme d party of Guatemala, stol e animals from his fa m i l y to fee d their troops. Arme d g uerr illas went door-to-door , requiring community members to move to the ce nter of town to listen to their propa g anda. When Petitioner was 12 y ear s old, his family and other community members wer e standing in front of the Catholic churc h. Armed g uerr illas appea red and kidnapped his cousin Tomas, who was 16 or 17 y ear s old. The g uerr illas told Tomas’s pare nts that they wer e taking their son to fig ht for the g uerr illas. Tomas was not seen or hear d from ag ain. When Tomas had been missing three months, his mother, Petitioner’s aunt, filed a repor t with local officia ls about her son’s disappea ranc e. Petitioner’s fathe r obtained a copy of the repor t and sent it to Petitioner. The repor

t was dated Marc h 10, 1983, and stated that Tomas disappea red on Dec ember

315, 1982. Petitioner’s fathe r apolog ized for the delay in obtaining the repor t. He explained that he had to convince Tomas’s mother to reque st the repor t “bec ause she is still scar ed for what happene d to her son that neve r appe are d.” AR 284. Finally , Petitioner claimed that, in 2007, his daug hter told him that someone tried to kill his wife and children by throwing a cloth or rag poisoned with an ag ricultural pesticide into the house. Although Petitioner’s daug hter had no proof of who committed the deed, she was convince d that a g ang did it beca

use P etitioner’s children are l eade rs i n the P ente co s t al ch u rch in Guatema la. The police ref used to take the family ’s repor t about the incident beca

use no one was injured. Petitioner fea rs returning to Gua t em al a beca use he is afr aid of “the seed he planted there ,” meaning the Pentecostal c hurch, a

nd g rowing g ang violence. Prior to g iving his testimony , Petitioner made ten c orre ctions to his written application for relief

. He amende d his telephone number, date of birth, children’ s dates of birth, number of children (twins born afte r the application was filed), employ ment, and involvement in the Pentec o s ta l churc h. He also change d his kidnapped cousin’s name from Fr ancisc o L opez to Tomas Saul MirandaFue ntes and amende d the date of Tomas’s kidnapping from “the 1990’s” to 1982. The application stated that Tomas “ died as a result of . . . torture .” AR 514. The I J found that Petitio ner was not a cre dible witness beca use his written application omitted important fac ts, his testimony contained key inconsistencies and discrepa n ci es, and the documentar

y evi d en ce further undermined Petitioner’s vera city

. The I J also ruled that Petitioner failed to produce corr oborating evidenc e that appea red to be available

. Even if Petitioner could be

co n s i d er ed cre dible, the I J denied relief on the merits. Howeve r, the I J g rante d Petitioner’s alterna tive req u es t for voluntary depar ture and direc ted Petitioner to file a $500 bond within five

4business day s of the date of the decision. Alterna tively , the I J order ed Petitioner remove d to

Guatema la if he f

ailed to pay

the bond in a timely

manner . The BI A aff

irmed the decision on appea l, conclud i n g t h at the I J g ave “spec ific, cog ent

rea sons to doubt” Petitioner’s cre dibilit y . The BI A distinguished Liti v. Gonzales , 411 F.3d 631 (6th Cir. 2005), on the g round that Petitioner had not added detail to his written appli ca t i o n , b u t h ad substantially altere d his claim during his testimony

. The BI A ag ree d that Petitioner failed to supply available corr oborating ev i d en ce and failed to show his entitlement to withholding of remova l or protec tion under CAT. Be cause Petitioner did not submit timely proo f t h at he paid the bond, the BI A ref used to r e instate the voluntary depar ture period and order ed Petitioner remove d to Guatema la pursuant to the I J ’s alter

native orde r. II. ANALYSIS A. Standard of

Review “B eca use the BI A adopted and supplemented the I J ’s decision, we revie w the opinion of the I J in conjunction with the BI A’s additional comments and discussion.” Cruz-Samayoa v. H older , 607 F.3d 1145, 1149 (6th Cir. 2010). Be cau s e t h e BI A denied Petitioner relief , we revie w the ag ency ’s fac tual finding s defe rentially to deter mine whether the decision is supported by substantial evidenc e. Stserba v. Holder , 646 F.3d 964, 971 (6th Cir. 2011). We may reve rse only if the decision

was “manife stly contra

ry to law”; in other words, we must find that the evidenc e not only supports a contr ary conclusion, but compels it. Dugboe v . Holder , 644 F.3d 462, 472 ( 6th Cir. 2011). B. Due process c laim Petitione r fi rs t contends that the I J conducte d herse lf inappropria tely during the hear ing, depriving him of due proce ss of law. He claims that the I J failed to maintain neutra lity and instead

5acte d as a p ro s ec utorial adver sary who disrupted his lawy er’ s examination, confuse d him with

leng thy questions immaterial to his claims, and distorted his testimony

. Be cause an alien is entitled to a full and fair hear ing, we re v i ew de novo any alleg ed due proce ss violation arising from a remova l proce eding

. Vasha v. Gonzales , 410 F.3d 863, 872 (6th Cir. 2005). To evalua te whether fundame ntal fairne ss was denied, we ask whether there was a defe ct in the remova l pr ocee ding, and if so, whether the alien was prejudice d by the defe ct. Id. Whil e an I J has broad discretion to control a heari n g for the asce rtainment of truth, Mikhailev itch v. INS , 146 F.3d 384, 391 (6th Cir. 1998), a neutra l judge is undoubtedly a basic due proce ss protec tion. Vasha , 410 F.3d a t 872. Having car efully revie wed the transcr ipt of t he hearing at i ssue, we ag ree that the I J asked

numerous pointed questions of both Petitioner and his counsel and t hat the I J was, at times, confr ontational and arg umentative. We adopt the BI A’s conclusion, howeve r, that the I J clar ified the questions asked and the answe rs g iven so that she could better understand Petitioner’s case . At times the I J interjec ted to maintain order in the sequenc e of events about which the Petitioner was testify ing, w hile on other oc casions she e nsured that the inter prete r provided acc urate translation. On the whole, we conclude that Petitioner rec eived a full and fair hear ing, and his due proce ss rig hts

wer e not violated. See V

asha, 410 F.3d a t 872; Mikhailev itch , 146 F.3d a t 391. C. Adverse cre dib ility f ind ings Petitioner next contends that the BI A’s decision to uphold the I J ’s adv e r s e c r e d ib il it y f inding s is not supported by substantial evidenc e. Although we question the fac tual support for some of the

cre dibilit y finding s, we are not ultimately compelled to reve rse the BI A’s decision. See Dugboe , 644 F.3d a t 472.

6The case is g overne d by the REAL I D Act of 2005 beca use Petitioner filed his application for relief afte r May 11, 2005. See El-Moussa v. Holder , 569 F.3d 250, 256 (6th Cir. 2009). Under that Act, when an alien seeks withholding of remova l and protec tion under CAT, the I J ’s cre dibilit y deter mination must be based on the “totality of th e circ umstances” and consider “all rele vant fac tors.” Id. Such fac tors include: the demea

nor, candor , or responsivene ss of th e applicant or witness, the inhere nt plausibilit y of the applicant' s or witness' s acc ount, the consi stency betwee n the applicant' s or witness' s written and oral statements (whe never made and whether or not under oath, and considering the circ umstances under which the statements wer e made) , the internal consistency of eac h such statement, the consistency of such statements with other evidenc e of rec ord (including the repor ts of the Depa

rtment of State on country conditions), and any inacc urac ies or falsehoods in such statements, without reg ard to whether an inconsistency , inacc urac y , or falsehood g oes to the hear t of the a pplicant' s claim, or any

other re levant fa ctor. 8 U.S.C. § 1229a(c) (4)( C). The ag ency found Petitioner not cre dible for sever al rea sons: his written application failed to mention the numerous beating s he claimed to have suffe red over many y ear s at t he hands of g uerr illas, para -military g roups, and “Catec hists,” particula rly a beating in which five fing ers wer e broken; Petitioner claimed in his application that Tomas died of torture, y et he testified no one knew what happene d to Tomas; Petitioner cl ai m ed t hat his aunt did not want to obtain the repor t about Tomas’s disappea

ranc e beca

use of her emotional pain while Petitioner’s fathe r stated that the aunt

was afr aid to o btain the repor t; Petitioner failed to mention in his application that his brother, Ara mis, was also beate n beca use of his Pentecostal faith; Petitioner claimed that he started the Good Samaritan g roup in Guatema la; and Petitioner’s testimony about someone throwing a poisonous rag into the home of his wife and daug hters, as well as his testimony about sending money to Pentecostal

7churc hes in Guatema la lacke d cre dibilit y beca use Petitioner did not produce corr oborating evidenc e that likely was a vailable. Wit h reg ard to Petitioner’s omission of various beating s from the written app l i cation, we consider our

prior dec ision in Liti v. Gonzales , 411 F.3d 631 ( 6th Cir. 2005). Although in Liti we applied prior la

w on inconsistencies g oing to the he art of the claim, we stated that the “ absenc e of specific incidents in the application

. . . does not g ive rise to the infere nce that the L itis are incre dible, b u t ra t h er reinfor ces their claim of a long history of political protest which cannot be limit ed to a few specific instances.” Id. at 638. We reje cted “the BI A’s underly ing rationale that the L itis are require d to provide an exhaustive, detailed list of their anti-communist activities in their asy lum application” beca

use holding applicants to such a standard is unrea listi c and unfair. Id. We further stated that the purpose of a remova l hear ing is to allow t h e al i en t o p rese nt evidenc e to elabor ate on the g ener alized claims in the application, and not simply to reiter ate the statements made in the a

pplication. Id. at 639. L i t i i nforms our analy sis here

. I n the amende d written application, Petitioner stated t h at teac hers and other profe ssionals wer e often targ eted for assault by para milit ary g roups and g ang s in Guatema la. He repor

ted that he “wa s a victim of

. . . robber ies” on the bus and “witnessed sever al of my fellow colleag ue teac hers being assaulted by the para milit ary and g ang s.” AR 514, 522. He further s tated in the application that he fears returning to Guatema la because he is a teacher and a member of the Pentecostal churc h and he is afr aid he will be targ eted for perse cution by para milit ary g roups or g ang s. AR 5 1 4 –15, 522. During the hear ing, Petitioner added detail about the attacks g ener ally descr ibed in the application. Whil e the written document did not ref er to “Catec hists,” Petitioner testified about various forms of perse cution he claimed to have endure d due to his

8conver sion to the Pentecostal faith, as g ener ally repor ted in the application. See L i t i , 4 1 1 F.3d at 639. Thus, the purported omission of specific instances of beating s from the written application does not support an adve rse c redibility finding

. We also ag ree with Petitioner that the adver se cre dibilit y finding p re d i cated on a minor distinction in the explanations about why Petitioner’s aunt had to be coaxed to obtain a repor t about the disappea

ranc e of her son is not supported by substantial evidenc e. See Stserba , 646 F.3d at 971. Petitioner’s fathe r ex plained in a letter that the delay occur red beca use t he aunt “is still scar ed for what happene d to her son that never appea red.” AR 284. Petitioner testified that his aunt “doesn’ t want any thing to do with the case of her son. . . . Be cause his disappe ara nce continues to be a pain that she bear s.” AR 204. When the I J perc eived a discrepanc y in these explanations, Petitioner clar ified that, afte r speaking with his fathe r persona lly , he understood the problem to be that his aunt “fe lt fea r, a fea r of reme mbering the things that occur red to her.” AR 267. Be cause it appea rs that Petitioner and his fathe r used slightly differ ent words to convey simil ar meaning , th e ad v er s e

cre dibilit y

finding on this ground la cks substantial evidentiar y support. On the other hand, cer

tain aspec ts of the ca s e ca s t doubt on Petitioner’s cre dibilit y , as the BI A and the I J found. For example, Petitioner testified that he and two others wer e the first to form the Good Samar itan g roup in Guatema la befor e 1991. He claimed they had not he ard of the name befor e and they chose the name beca use they liked it. AR 223–24. When the I J mentioned that she had pre viously

hear d other a

pplicants for relief discuss the Good Samaritan group and questioned Petitioner’s role in f

orming the g roup, Petitioner clar ified that “[t] here are a lot of differ ent g roups that are called Good Samaritan in Guatema la” and his g roup was the first “in the community of San J ose Caben.” AR 223–24, 227. Additionally , Petitioner claimed in his application that Tomas died

9of torture, but Petitioner testified no one actua lly knew what happene d to Tomas. Petitioner did not

ex p l ain why he chang ed the name of his kidnapped cousin from Fr ancisc o L opez to Tomas Saul Miranda- Fue ntes or why he chang ed the date of Tomas’s disappea ranc e from the “1990’s” to 1982. Fur ther, Petitioner did not provide corr oborative evidenc e of his own or Ara mis’s beating s, his teac hing cre dentials, the alleg ed poisoning of his family , or his wire transfe rs of funds to support Pentecostal churc hes in Guatema la. See Lin v. Holder , 565 F.3d 971, 977 (6th Cir. 2009) (obser ving

corr oborating evidenc e should be provided wher e it is rea sonable to expect such evidenc e to exis t). We will not reve rse unless we find that a rea sonable trier of fac t i s co m p el l ed to conclude that

corr oborating evidence i s n o t available

. Id. We cannot make that finding here

. Although we

co n cl ude that some minor discrepa ncies underly

ing the adver se cre dibilit y deter mination are no t supported by substantial evidenc e, cer tain other discrepa

ncies, combined with lack of corr oborating evidenc e, indicate that Petitioner attempted to enhanc e his claims of perse cution. See Ndrecaj v. Mukase y , 522 F.3d 667, 674–75 (6th C i r. 2008). Consequently , we are not compelled to rea ch a differ ent ultimate conclusion on the issue of Petitioner’ s cre dibilit y . See id. at 675. D. Withhold ing of

rem oval and CAT To qualify for withholding of remova l, Petitioner must show that, if he is forc ed to return to Guatema la, there is a clea r probability that he will be subject to perse cution on acc ount of his rac e, relig ion, nationality , membership in a particula r social g roup, or political opinion. See Vasha , 410 F.3d at 875; Ndrecaj , 522 F.3d at 677. To establish a clea r probability , Petitioner must demonstrate it is more li kely than not that he will be persecute d on his return to that country

. Vasha , 410 F.3d at 875. Simi larly , to satisfy elig ibilit y under the CAT, Petitioner must show it is more li kely than not that he will be tortured if remove d to Guatema la. Ndrecaj , 522 F.3d at 677. We are require d to

10uphold the BI A’s decision unless it is manifestly contra ry t o the law. See id. Administrative finding s of fa ct ar e conc lusive unless any rea sonable a djudicator would be compelled to conclude to the contra

ry . Id. Due to the problems with Petitioner’s cre dibilit y and the lack of supporting documentation

on key points, we must uphold the BI A’s decision to deny withholding of remova l and protection under CAT beca

use the decision is not manifestly contra ry to law. Petition er fa i l ed t o meet his heig htened bur den to show a c lear probability that he will be perse cuted on a ccount of a prote cted g round or that it is more likely than not that he will be torture d if he is re moved to Guatema la. E. Bon d Finally , Petitioner arg ues that the BI A er re d i n deny ing voluntary depar ture wher e the I J failed to advise the Petitioner to provide the BI A with proof that he paid the bond in a timely manner . We need not re s o l v e t his issue beca use Petitioner’s filing of a petition for revie w automatically terminated the I J ’s g rant of voluntary depar ture and rende red eff

ective the I J ’s alterna tive order for

remova l. 8 C.F.R. § 1240.26(i); Giraldo v. Holder , 654 F.3d 609, 617 ( 6th Cir. 2011). III. CONCLUSION For all of the rea sons stated, the petition for revie w of the BI A’s decision deny ing withholding of r emoval and pr otection under CAT is DENI ED.

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