FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 27, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13613

Non-Argument Calendar

________________________

Agency Nos. A98-878-590

A98-878-591

YACKCER ADRIAN OJEDA GONZALEZ,

EMILSEN DEL CARMEN PERNIA MOLINA,

DARLING CAROLINA PERNIA MOLINA,

JACKSSEL ADRIAN OJEDA PERNIA,

KEIBER JESUS OJEDA PERNIA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(January 27, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:

Through counsel, Yackcer Adrian Ojeda Gonzalez (“Ojeda”), his wife,

Emilsen del Carmen Pernia Molina, and their children, Darling Carolina Pernia

Molina, Jackssel Adrian Ojeda Pernia, and Keiber Jesus Ojeda Pernia (collectively

“petitioners”), seek review of the Board of Immigration Appeals’ (BIA) decision

affirming the Immigration Judge’s (IJ) order denying their application for asylum,

withholding of removal, and CAT relief. They have abandoned their CAT claim

by failing to argue the issue on appeal and have withdrawn their asylum claim.

On appeal, the petitioners argue that the BIA erred when it affirmed the IJ’s

finding that Ojeda was not credible based on two minor omissions that the BIA

incorrectly considered “substantial.” Additionally, the petitioners assert that they

were not required to produce corroborating evidence and argue that the BIA

applied the wrong standard when it improperly failed to consider their claim for

withholding of removal after they withdrew their asylum application.

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

adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will

review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th

Cir. 2001) (citations omitted). In the instant case, the BIA issued its own opinion

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with analysis and also adopted some of the IJ’s reasoning. Therefore, we review

the decisions of both the IJ and the BIA.

“To the extent that the [IJ’s and the] BIA’s decision[s] were based on a

legal determination, . . . review is de novo. D-Muhumed v. U.S. Att’y Gen., 388

F.3d 814, 817 (11th Cir. 2004). Factual determinations, including credibility, are

reviewed under the substantial-evidence test, which requires that a decision be

reversed only if the evidence compels a reasonable fact-finder to find otherwise.

Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006) (per curiam).

Under this test, we “must 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). Furthermore, we are required 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, 1027 (11th Cir. 2004) (en banc).

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

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

Department of Homeland Security has discretion to grant asylum if the alien meets

the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1). 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

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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. . . .

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

statutory “refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257 F.3d at 1284. To

establish 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 future persecution. 8 C.F.R.

§ 208.13(a) and (b); Al Najjar, 257 F.3d at 1287.

An alien is entitled to withholding of removal to a particular country if he

can show that his “life or freedom would be threatened in that country because of

[his] race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating

that it is ‘more likely than not’ [that he] will be persecuted or tortured upon being

returned to [his] country. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th

Cir. 2005) (per curiam). “This is a more stringent standard than for asylum.” Id.

Thus, where a petitioner fails to establish eligibility for asylum, he likewise fails to

establish entitlement to withholding of removal. Silva v. U.S. Att’y Gen., 448 F.3d

1229, 1243 (11th Cir. 2006).

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Credibility determinations for purposes of withholding of removal are

governed by 8 U.S.C. § 1158:

The testimony of the applicant may be sufficient to sustain the

applicant’s burden without corroboration, but only if the applicant

satisfies the trier of fact that the applicant’s testimony is credible, is

persuasive, and refers to specific facts sufficient to demonstrate that

the applicant is a refugee. In determining whether the applicant has

met the applicant’s burden, the trier of fact may weigh the credible

testimony along with other evidence of record. Where the trier of fact

determines that the applicant should provide evidence that

corroborates otherwise credible testimony, such evidence must be

provided unless the applicant does not have the evidence and cannot

reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii). “Indications of reliable testimony include

consistency on direct examination, consistency with the written application, and

the absence of embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255

(11th Cir. 2006) (per curiam). Omissions are a proper consideration when

evaluating an applicant’s credibility. Forgue v. U.S. Att’y Gen., 401 F.3d 1282,

1287-88 (11th Cir. 2005). Furthermore, the IJ is expressly permitted to make

adverse credibility determinations based on “the totality of the circumstances, and

all relevant factors,” even if the inconsistencies or omissions at issue do not go to

the heart of the claim. 8 U.S.C. § 1158(b)(1)(B)(iii).

Here, the BIA and IJ concluded that Ojeda was not credible, and their

determinations were supported by substantial evidence. The IJ found

inconsistencies in Ojeda’s testimony about the threats he received and about the

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Bolvarian Circle’s attack in 2001. The IJ also found that there was insufficient

evidence to support Ojeda’s claims that he was threatened because of his political

activities, rather than because he filed a lawsuit against the government.

Furthermore, because there were inconsistencies between Ojeda’s testimony and

the affidavits provided by his family members, Ojeda did not produce credible

corroborating evidence.

Viewing the record in the light most favorable to the agency’s decision,

substantial evidence supports the BIA’s and IJ’s finding that Ojeda was not

credible and not eligible for withholding of removal. The BIA and IJ properly

determined that the petitioners did not establish their eligibility for withholding of

removal by concluding that they did not meet even the less stringent test for

asylum.

CONCLUSION

Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error. Accordingly, we deny the petitioners’ petition for

review.

PETITION DENIED.

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