FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 2, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16247

Non-Argument Calendar

________________________

Agency No. A96-100-324

CARLOS ADAN FLOREZ, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 2, 2006)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Carlos Adan Florez petitions for review of the Board of Immigration

Appeals’ (BIA’s) final order affirming the Immigration Judge’s (IJ’s) order
 Florez does not challenge the denial of CAT relief, and, therefore, has abandoned this issue 1

on appeal. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).

2

denying him asylum, withholding of removal under the Immigration and

Nationality Act (INA), and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

(CAT), 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16. We grant the petition. 

1

Where, as here, the BIA does not render its own opinion but rather adopts

the IJ’s opinion, we review the IJ’s decision. D-Muhumed v. U.S. Att’y Gen., 388

F.3d 814, 818 (11th Cir. 2004). The IJ’s factual determinations are reviewed under

the substantial evidence test, and we “must affirm the [IJ’s] decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.

2001) (quotations and citations omitted). 

An alien who arrives in, or is present in, the United States may apply for

asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General or the Secretary of

Homeland Security has discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” See 8 U.S.C. § 1158(b)(1)(A). A “refugee” is:

[A]ny person who is outside any country of such person’s nationality

or, in the case of a person having no nationality, is outside any

country in which such person last habitually resided, and who is

unable or unwilling to return to, and is unable or unwilling to avail

himself or herself of the protection of, that country because of
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persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or

political opinion.

8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving

statutory “refugee” status. See Al Najjar, 257 F.3d at 1284. 

To establish asylum eligibility, the petitioner must, with specific and

credible evidence, establish (1) past persecution on account of a statutorily listed

factor, such as political opinion or (2) a “well-founded fear” that the statutorily

listed factor will cause such future persecution. 8 C.F.R. § 208.13(a), (b). If the

petitioner demonstrates past persecution, he is presumed to have a well-founded

fear of future persecution unless the government can rebut this presumption by

showing a fundamental change in circumstances in the country or the ability to

avoid future persecution by relocating within the country. 8 C.F.R § 208.13(b)(1). 

The government then has the burden to demonstrate that relocation was both

possible and reasonable. See Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1264

(11th Cir. 2004); see also 8 C.F.R. § 208.13(b)(1).

When the IJ does not make express credibility findings, we may consider the

petitioner’s testimony and evidence as true. See Yang v. U.S. Att’y Gen., 418 F.3d

1198, 1201 (11th Cir. 2005). When the IJ fails to make findings regarding past

persecution, “[t]he IJ’s failure to make this determination precludes us from
4

undertaking meaningful judicial review of the merits of his order.” See Antipova,

392 F.3d at 1265 (regarding withholding of removal claim). The Supreme Court

has stated that “[a] court of appeals is not generally empowered to conduct a de

novo inquiry into the matter being reviewed and to reach its own conclusions based

on such an inquiry.” INS v. Ventura, 123 S. Ct. 353, 355 (2002) (quotations and

citation omitted). “Rather, the proper course, except in rare circumstances, is to

remand to the agency for additional investigation or explanation.” Id. (quotations

and citation omitted). 

First, because the IJ did not expressly state whether he found Florez’s

testimony to be credible, we accept Florez’s testimony and evidence as true. See

Yang, 418 F.3d at 1201. Second, the record reveals the IJ failed to make a finding

regarding whether Florez suffered past persecution. In these circumstances, the

IJ’s failure to make this determination precludes us from undertaking meaningful

judicial review of the merits of his order. See Antipova, 392 F.3d at 1265. Third,

the IJ concluded Florez did not establish a well-founded fear of future persecution

because he did not attempt to relocate within Colombia and failed to explain his

reluctance to relocate. However, if Florez proved past persecution, the burden was

on the Government, not Florez, to demonstrate that relocation was both possible

and reasonable. See id. at 1264. Thus, we vacate the BIA’s and IJ’s decisions and
 The IJ’s failure to make a finding as to past persecution on Florez’s asylum claim makes 2

review of his conclusions regarding withholding of removal impossible as well. See Antipova, 392

F.3d at 1265. 

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remand for the BIA to make specific findings regarding past persecution and the

possibility that the burden of proof shifted to the Government. 

2

PETITION GRANTED.