FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 10, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15333

Non-Argument Calendar

________________________

Agency No. A095-898-281

ANGEL ALBERTO SALCEDO-MORA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(July 10, 2009)

Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.

PER CURIAM:

Angel Salcedo-Mora, a native and citizen of Colombia, petitions our Court
to review an order of the Board of Immigration Appeals (“BIA”) dismissing his

appeal of the Immigration Judge’s (“IJ’s”) order of removal and denial of asylum

and withholding of removal under the Immigration and Nationality Act (“INA”)

and relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. § 1158, 8

U.S.C. § 1231, 8 C.F.R. § 208.16. On review, Salcedo-Mora argues that: (1) the IJ

abused her discretion in denying his third motion for continuance, which was based

on the pendency of his asylee relative petition; and (2) the IJ and the BIA erred in

making an adverse credibility finding and in denying his claims for asylum and

withholding of removal.

Motion for Continuance

On review, Salcedo-Mora argues that the IJ improperly focused on a minor

discrepancy, i.e., that he had indicated in his asylum application that he was single,

but now claimed that he had had a common-law marriage. He argues that he met

his burden to establish by a preponderance of the evidence that he was eligible for

derivative asylum, and that he was simply waiting for the asylee relative petition to

be processed.

We review an IJ’s denial of a motion for continuance for an abuse of

discretion. Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1214 (11th Cir. 2006).

The immigration regulations provide that an IJ may grant a continuance “for good

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cause shown.” 8 C.F.R. § 1003.29; Haswanee, 471 F.3d at 1214. According to

BIA precedent, “an immigration judge’s decision denying [a] motion for

continuance will not be reversed unless the alien establishes that [the] denial

caused him actual prejudice and harm and materially affected the outcome of his

case.” Matter of Sibrun, 18 I. & N. Dec. 354, 356-57 (BIA 1983). “Judicial

review of denials of discretionary relief incident to [removal] proceedings . . . is

limited to determining whether there has been an exercise of administrative

discretion and whether the matter of exercise has been arbitrary or capricious.”

Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted)

(reviewing denials of motions to reopen).

The record shows that the IJ did not make an arbitrary or capricious decision

to deny a third continuance. Instead, the IJ recognized that the proceedings had

already been delayed for a long time, and because the IJ had granted prior

continuances, nearly three years had passed when the IJ set the case for a merits

hearing, and four years had passed when the IJ eventually conducted the merits

hearing. In addition, the IJ stated that Salcedo-Mora could not show that the asylee

relative petition was prima facie approvable given the contradictory evidence of his

marital status when he filed his asylum application. Morever, the IJ noted that if

the asylee relative petition were granted, Salcedo-Mora would receive the benefit

of that petition regardless of the result of his merits hearing. Thus, Salcedo-Mora

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also could not establish that the denial of his motion for continuance affected the

outcome of his merits hearing. See Sibrun, 18 I. & N. Dec. at 356-57. Based on

the IJ’s stated reasons, which were supported by the record, this Court should

conclude that the IJ did not abuse her discretion in denying Salcedo-Mora’s third

motion for continuance.

Salcedo-Mora argues that he made a “colorable showing” of eligibility for

relief based on his common-law marriage. However, as this Court noted in Bull,

the BIA’s general rule that an IJ should grant a continuance when an applicant can

show eligibility for relief with regard to another pending petition is not an

inflexible requirement. Bull, 790 F.2d at 872; Garcia, 16 I. & N. Dec. at 656-57.

In Salcedo-Mora’s case, moreover, he clearly indicated in his asylum application

and in statement to the Colombian human rights office that he was single, and he

did not explain in either case that he was in a common-law relationship.

Accordingly, even if Salcedo-Mora were to establish for purposes of the asylee

relative petition that he did have a common-law marriage in Colombia, the IJ’s

decision was still based on the evidence in the record and not arbitrary or

capricious.

Adverse Credibility Determination and Denial of Relief

Salcedo-Mora argues that the IJ erred in finding him not credible because,

with regard to each inconsistency noted by the IJ, either he provided an adequate

4
explanation, the inconsistency was minor, or the record did not clearly indicate an

inconsistency. He also argues that the evidence compels the conclusions that he

suffered past persecution by the Revolutionary Armed Forces of Colombia

(“FARC”), and that he likely would likely suffer future persecution by the FARC if

returned to Colombia.

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“We review only the [BIA’s] decision, except to the extent that it expressly

adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). To the extent the BIA adopts the IJ’s reasoning, we also review the IJ’s

decision. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006). The

BIA’s factual determinations are reviewed under the substantial evidence test,

which requires us to “view the record evidence in the light most favorable to the

agency’s decision and draw all reasonable inferences in favor of that decision.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We will

affirm the BIA’s decision “if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” D-Muhumed, 388 F.3d

at 818 (quotation omitted). “To reverse the . . . fact findings, we must find that the

We do not have jurisdiction to review the denial of CAT relief because Salcedo- 1

Mora did not challenge the denial of CAT relief in his notice of appeal or brief to the BIA. See

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (holding that

we will not review an issue or claim that was not presented to the BIA in the petitioner’s notice

of appeal or brief to the BIA, even if the BIA considered the issue or claim sua sponte). In this

case, moreover, Salcedo-Mora does not raise the issue of CAT relief in his petition for review or

his brief to this Court. 

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record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen.,

327 F.3d 1283, 1287 (11th Cir. 2003).

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

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The U.S. Attorney General

or the Secretary of the Department of Homeland Security has discretion to grant

asylum if the alien meets the INA’s definition of “refugee.” See INA § 208(b)(1),

8 U.S.C. § 1158(b)(1). A “refugee” is

any 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 persecution or a

well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion.

INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A).

To establish asylum eligibility, the alien must, with specific and credible

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

(2) a “well-founded fear” that the statutorily listed factor will cause such future

persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. An applicant

may not show merely that he can establish a listed factor, but must show a causal

connection between the persecution, or feared persecution, and a listed factor.

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (citing 8

6
C.F.R. § 208.13(a), (b)). We have held that not all “exceptional treatment”

constitutes persecution. Zheng v. U.S. Att’y General, 451 F.3d 1287, 1290 (11th

Cir. 2006). We have described persecution “as an extreme concept, requiring more

than a few isolated incidents of verbal harassment or intimidation, and that mere

harassment does not amount to persecution.” Id. (quotation omitted). “In

determining whether an alien has suffered past persecution, the IJ [and the BIA]

must consider the cumulative effects of the incidents.” Delgado v. U.S. Att’y

Gen., 487 F.3d 855, 861 (11th Cir. 2007).

To establish a “well-founded fear” of future persecution, “an applicant must

demonstrate that his or her fear of persecution is subjectively genuine and

objectively reasonable.” Al Najjar, 257 F.3d at 1289. An asylum applicant can

establish a well-founded fear of future persecution by presenting “specific, detailed

facts showing a good reason to fear that he or she will be singled out for

persecution on account of” the statutorily listed factor. Id. at 1287 (quotation

omitted). Alternatively, an applicant can establish a well-founded fear of

persecution by establishing that there is a pattern or practice of persecution of

persons similarly situated on account of the statutorily listed factor. 8 C.F.R.

§ 208.13(b)(2)(iii).

Under the INA’s provisions for withholding of removal, the Attorney

General “may not remove an alien to a country if the Attorney General decides that

7
the alien’s life or freedom would be threatened in that country because of the

alien’s race, religion, nationality, membership in a particular social group, or

political opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). “An alien bears

the burden of demonstrating that he more-likely-than-not would be persecuted or

tortured upon his return to the country in question.” Mendoza, 327 F.3d at 1287; 8

C.F.R. § 1208.16(b). Because the evidentiary burden for withholding of removal is

greater than that imposed for asylum, if an alien has not met the well-founded fear

standard for asylum, he generally cannot meet the standard for withholding of

removal. Al Najjar, 257 F.3d at 1292-93.

We review credibility determinations under the substantial evidence test and

will not substitute our judgment for that of the IJ or BIA. D-Muhumed, 388 F.3d

at 818.

[T]he IJ [or BIA] must offer specific, cogent reasons for an adverse

credibility finding. Once an adverse credibility finding is made, the

burden is on the applicant alien to show that the IJ’s [or BIA’s]

credibility decision was not supported by specific, cogent reasons or

was not based on substantial evidence. A credibility determination,

like any fact finding, may not be overturned unless the record compels

it.

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (citations and

quotations omitted).

“Indications of reliable testimony include consistency on direct examination,

consistency with the written application, and the absence of embellishments.”

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Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). If credible, an

alien’s testimony may be sufficient, without corroboration, to sustain his burden of

proof in establishing his eligibility for relief from removal. Forgue, 401 F.3d at

1287. “Conversely, an adverse credibility determination alone may be sufficient to

support the denial of an asylum application.” Id. “[A]n adverse credibility

determination, [however], does not alleviate the IJ’s duty to consider other

evidence produced by an asylum applicant,” and it is not sufficient for the IJ to rely

on the adverse credibility finding alone, if the applicant produces other evidence of

persecution. Id. “The weaker an applicant’s testimony, . . . the greater the need for

corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.

2005). This Court has held that an applicant’s failure to mention certain aspects of

his claim before the hearing can support an adverse credibility finding. Forgue,

401 F.3d at 1287 (holding that in light of an applicant’s omission of various

relevant facts from his asylum application, “substantial evidence support[ed] the

IJ’s adverse credibility determination”).

Upon review of the record and the briefs of the parties, we conclude that

substantial evidence supports the BIA’s and IJ’s determinations that Salcedo-Mora

(1) was not credible, (2) did not show past persecution or a well-founded fear of

future persecution, and (3) therefore, was not eligible for asylum. The BIA and the

IJ gave specific examples of discrepancies supporting their adverse credibility

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findings, which are supported by substantial evidence. See Forgue, 401 F.3d at

1287. The BIA noted that the record contained several contradictions about his

encounters with the guerillas and “equivocal and surprisingly uncorroborated

testimony regarding his purported marital relationship.” The record shows that

Salcedo-Mora indicated in his asylum application and in a statement to a

Colombian human rights office that he was single, but he later claimed that he had

a common-law marriage with Vera-Leguizamon. Although he argues that the

application did not give the option of indicating a common-law marriage, he did

not explain why he checked “single” instead of “married,” and he did not explain

his common-law relationship anywhere in his asylum application. In addition,

Vera-Leguizamon did not file the I-730 petition until April 2003, several months

after she was granted asylum in September 2002 and the beginning of SalcedoMora’s removal proceedings in October 2002, and Vera-Leguizamon was present

at the merits hearing, but did not testify to their marital status or provide an

affidavit.

The record also shows contradictions regarding Salcedo-Mora’s interaction

with the FARC, specifically, as the IJ noted, when that interaction began and how

long he was detained. His application stated that he started receiving notes from

the FARC in June 2001, but he testified both that (1) the messages began in July

2001 and that (2) messages were received “every month” for “several months”

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until he encountered a particular FARC intermediary in July 2001. In addition, he

declared to the Colombian human rights office that guerillas detained him for 30

minutes, but his application stated that the incident took “a couple of hours.”

Although Salcedo-Mora tried to explain the discrepancies, the discrepancies are

material to his asylum claim on the basis of persecution, and the record does not

compel the conclusion that he was credible. Indeed, the record contains additional

discrepancies regarding Salcedo-Mora’s connection to the Liberal Party.

Substantial evidence also supports the finding that Salcedo-Mora did not

establish that any past persecution or fear of future persecution was based on a

statutorily protected ground. See 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at

1287. Because Salcedo-Mora was found to be not credible, he needed to present

corroborating evidence to support his claim. However, his declaration to the

human rights office contradicted his application and testimony, and the purported

declarations of people in Colombia were not translated correctly or completely.

Salcedo-Mora points to the Country Report, but has failed to show that he would

be singled out or that there was a pattern or practice of persecution of similarlysituated persons based on political opinion. See Al Najjar, 257 F.3d at 1287; 8

C.F.R. § 208.13(b)(2)(iii). In addition, although he provided documentation of his

work for the civic corporation, he did not explain how his work for the civic

corporation was an expression of his political opinion.

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Even if assumed to be credible, however, Salcedo-Mora did not clearly

articulate a political opinion either in his asylum proceedings or to the FARC, and,

thus, he also did not show that he was mistreated on account of his political

opinion. Indeed, he stated in his application that he told the FARC that he could

not provide money and food because he did not own the farm, not because he

disagreed with their politics. As noted by the IJ, it appears that any alleged

persecution resulted from Salcedo-Mora’s refusal to provide goods and services,

rather than his political opinion. Although he argues that the IJ should have

considered a mixed motive, the record does not establish that Salcedo-Mora had a

particular political opinion or that the FARC knew of such an opinion. Even if the

question is debatable, the record does not compel a contrary conclusion. See

Mendoza, 327 F.3d at 1287.

Substantial evidence also supports the conclusion that, even if assumed to be

credible, Salcedo-Mora did not show that his alleged mistreatment rose to the level

of persecution. In particular, his testimony shows that he received demands and

threats in the form of about five letters and a few telephone calls over a six-month

period, and was detained by armed guerillas for up to two hours without suffering

any physical harm. His case is distinguishable from Mejia, where the petitioner

suffered a broken nose and was threatened over a period of 18 months. See Mejia,

498 F.3d at 1257-58. In addition, this Court has emphasized that persecution is an

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extreme concept. See Zheng, 451 F.3d at 1290. Even if it is not clear whether

Salcedo-Mora’s alleged mistreatment rose to the level of persecution, the record

does not compel a contrary conclusion. See Mendoza, 327 F.3d at 1287. Because

Salcedo-Mora did not establish eligibility for asylum, he also did not meet the

higher burden of establishing eligibility for withholding of removal. Accordingly,

we deny the petition.

DENIED.

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