FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 16, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-11695

Non-Argument Calendar

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Agency No. A099-993-196

YONATHAN STALING ACEVEDO-GOMEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(April 16, 2010)

Before EDMONDSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:

Yonathan Staling Acevedo-Gomez, a native and citizen of Venezuela,

petitions for review of the order by the Board of Immigration Appeals (“BIA”) that

affirmed the decision of the Immigration Judge (“IJ”). The decision denied

asylum, withholding of removal, and relief under the Convention Against Torture.

No reversible error has been shown; we deny the petition.

Acevedo-Gomez sought asylum based on his political opinion: he previously

had supported the Fifth Republic movement and the presidential candidacy of

Hugo Chavez; but a few years into Chavez’s presidency, Petitioner left this

movement and began supporting the Justice First party. Because Acevedo-Gomez

left the Fifth Republic, its members began harassing him, by making threatening

phone calls to him and throwing objects at him. Acevedo-Gomez worked as a

deliveryman for a beer distributor. On one occasion, Fifth Republic members tried

to attack him at a liquor store; but store employees hid him. A month later, Fifth

Republic members again attacked him at a delivery location and beat him.

Acevedo-Gomez went to the hospital to receive treatment.

After the beating incident, Acevedo-Gomez believed that members of the

Fifth Republic wanted to kill him. So, he quit his job and fled to the United States.

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Shortly after he quit his job, Acevedo-Gomez’s replacement driver was shot and

killed; and Acevedo-Gomez believed that the Fifth Republic was the perpetrator

and that he was the intended victim. Two weeks before Acevedo-Gomez’s asylum

hearing, his brother was killed; he believed the Fifth Republic killed his brother

because its members had been harassing his family in Venezuela.

The IJ denied relief because the IJ determined that Acevedo-Gomez was not

credible. The IJ based this determination on the inconsistent and evasive nature of

Acevedo-Gomez’s testimony about his relationship with his wife, and the IJ noted

that this relationship called into question his true motivations for leaving

Venezuela.

1 The IJ also noted the implausible nature of Acevedo-Gomez’s claim

and that his submitted evidence did not corroborate the claim. The BIA agreed

with the IJ, noting that no clear error existed in the IJ’s credibility determination

and that the IJ appropriately had considered the totality of the circumstances in

making the determination.

Here, we review the BIA’s decision because the BIA did not expressly adopt

the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001)

(noting that we review the BIA’s decision; but “[i]nsofar as the [BIA] adopts the

Acevedo-Gomez and his wife did not marry until after he came to the United States. But 1

they lived together for several years in Venezuela and had a daughter together there. His wife

came to the United States years before Acevedo-Gomez did; and later, the daughter joined her in

the United States.

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IJ’s reasoning, we will review the IJ’s decision as well”). We review de novo legal

determinations of the BIA. Id. A factual determination that an alien is unentitled

to relief “must be upheld if it is supported by substantial evidence.” Mazariegos v.

U.S. Attorney Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). To reverse a fact

determination, we must conclude “that the record not only supports reversal, but

compels it.” Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir.

2003).

Like any fact finding, a credibility determination may not be overturned

unless the record compels it. Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1287

(11th Cir. 2005) (internal quotation omitted). An adverse credibility determination

alone may be sufficient to support the denial of relief. Id. But “an adverse

credibility determination does not alleviate the IJ’s duty to consider other evidence

produced by an asylum applicant.” Id.

On appeal, Acevedo-Gomez argues that the BIA erred in affirming the

adverse credibility determination because his testimony was consistent and

believable. We disagree. The IJ and BIA provided specific and cogent reasons for

the credibility determination, which is supported by substantial evidence.

See D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 819 (11th Cir. 2004).

Nothing in the record compels us to substitute our judgment on the issue.

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As the IJ noted, Acevedo-Gomez testified evasively about his relationship

with his wife and was reluctant to explain the history of their relationship. He

testified inconsistently about how long and when they lived together in Venezuela,

when his wife came to the United States, when his daughter came to the United

States, and when he reconciled with his wife once he arrived in the United States.

And though Acevedo-Gomez testified that he did not intend to reconcile with his

wife when he got to the United States, he immediately called her; and she flew to

Texas and rented a car to drive him back to Florida. The couple also conceived a

child two months after his arrival. Thus, the IJ correctly questioned AcevedoGomez’s true motivations in coming to the United States.

2

And the BIA did not rely only on the testimony about his family relationship

to uphold the adverse credibility determination, but also on the inconsistencies in

and implausibility of his claim. For instance, (1) Acevedo-Gomez provided no

basis for his sudden decision to stop supporting Chavez and provided no

documentation to show that he belonged to either the Fifth Republic or Justice

First; (2) his testimony about the severity of his injuries did not corroborate the

Acevedo-Gomez argues that these inconsistencies do not bear on his asylum claim. But 2

discrepancies and inconsistencies in his testimony did not have to go to the heart of his asylum

claim because his asylum application was filed after the REAL ID Act of 2005. See 8 U.S.C. §

1158(b)(1)(B)(iii). And the IJ may make a credibility determination based on the totality of the

circumstances and all relevant factors, whether or not inconsistencies and inaccuracies go to the

heart of the alien’s claim. See Chen v. U.S. Attorney Gen., 463 F.3d 1228, 1231 (11th Cir.

2006).

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medical documentation he submitted about the injuries; (3) after his beating,

Acevedo-Gomez chose to remain at his employment for a few months instead of

coming directly to the United States; and (4) the newspaper article he submitted

about the killing of his replacement driver indicated that the driver was killed

because he refused to give money to the robbers, not for political reasons.

We briefly address Acevedo-Gomez’s arguments about his motions for a

continuance and to reopen so that he could introduce -- and the IJ could examine --

the death certificate of his brother and a police report filed by his mother. We

review the denial of a motion for a continuance for an abuse of discretion. Zafar v.

U.S. Attorney Gen., 461 F.3d 1357, 1362 (11th Cir. 2006). We also review the

denial of a motion to reopen for an abuse of discretion. Gbaya v. U.S. Attorney

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Gen., 342 F.3d 1219, 1220 (11th Cir. 2003).

We conclude that the BIA abused no discretion is denying the motions.

Acevedo-Gomez did not request to submit his brother’s death certificate until the

day of his asylum hearing and had not gotten the certificate translated or copied

before the hearing. Thus, Acevedo-Gomez did not show good cause for continuing

Before the BIA, Acevedo-Gomez sought to submit additional evidence and to have his 3

case remanded so that the IJ consider this evidence. We construe this request as a motion to

reopen because it sought to have the IJ consider evidence not previously presented. See Al

Najjar, 257 F.3d at 1301 (stating that where a motion to remand “seeks to introduce evidence

that has not previously been presented, it is generally treated as a motion to reopen under [8

C.F.R. § 1003.2(c)]”). 

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the hearing. See 8 C.F.R. § 1003.29. And Acevedo-Gomez did not show how the

proffered evidence “was not available and could not have been discovered or

presented at the former hearing” to justify re-opening his case. See 8 C.F.R. §

1003.2(c)(1).

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PETITION DENIED.

We also conclude that substantial evidence supports the BIA’s conclusion that Acevedo- 4

Gomez did not show eligibility for relief under the Convention Against Torture.

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