Carl Marcelus v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Carl Robert Marcelus. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Petition DENIED. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-15229

Date Filed: 08/28/2015

Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15229
Non-Argument Calendar
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Agency No. A200-194-875

CARL ROBERT MARCELUS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 28, 2015)
Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:

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Carl Robert Marcelus seeks review of the Board of Immigration Appeals’s
(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his
application for asylum. 1 Marcelus, a citizen of Haiti, claimed past persecution and
a well-founded fear of future persecution by a group of kidnappers who targeted
him after he reported them to Haitian authorities. The IJ and the BIA denied
Marcelus’s applications based on a finding that he was not credible. After review,
we deny Marcelus’s petition for review.
On appeal, Marcelus contends that the IJ’s adverse credibility finding is not
supported by substantial evidence. 2 An asylum applicant bears the burden of
establishing, with specific and credible evidence, either past persecution or a “wellfounded fear” of future persecution on account of a statutorily protected ground.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir. 2005); 8 C.F.R.
§ 208.13(b). While an applicant’s credible testimony may be sufficient to sustain
his burden of proof, even without corroborating evidence, Immigration and

1

Marcelus’s petition for review challenges only the denial of his asylum claim, makes
only a few passing references to his claim for withholding of removal, and does not mention at
all his request for relief under the United Nations Convention Against Torture (“CAT”).
Accordingly, Marcelus has abandoned his claims for withholding of removal and CAT relief,
and we do not address them. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th
Cir. 2009) (deeming abandoned a CAT claim to which the petitioner’s brief made only passing
reference).
2

Because the BIA agreed with the IJ’s credibility finding, we review the decisions of both
the IJ and the BIA. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008). The
IJ’s credibility finding is a factual finding that we review for substantial evidence. Id. Under the
substantial evidence test, we will reverse an IJ’s credibility finding only if the record compels it.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir. 2005).
2

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Nationality Act (“INA”) § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii), the
weaker the applicant’s testimony, the greater the need for corroboration. Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Conversely, where the
applicant relies solely on his testimony, an adverse-credibility determination may
support denying his application. Lyashchynska v. U.S. Att’y Gen., 676 F.3d 962,
967 (11th Cir. 2012). However, if the applicant produces evidence other than his
testimony, the IJ and the BIA must consider this evidence as well. Forgue, 401
F.3d at 1287.
In making an adverse credibility finding, the IJ must be explicit and offer
“specific, cogent reasons” for the finding. Forgue, 401 F.3d at 1287. Pursuant to 8
U.S.C. § 1158(b)(1)(B)(iii), as amended by the REAL ID Act, the IJ, in evaluating
credibility must consider the “totality of the circumstances,” including (1) the
applicant’s demeanor, candor, or responsiveness; (2) the inherent plausibility of the
applicant’s account; (3) the consistency between the applicant’s written and oral
statements; (4) the internal consistency of each statement; (5) the consistency of
the statements with other record evidence; and (6) any other relevant factor. INA
§ 208(b)(1)(B)(iii); 8 U.S.C. § 1158(b)(1)(B)(iii). “Once an adverse credibility
determination is made, the burden is on the applicant alien to show that the IJ’s
credibility decision was not supported by ‘specific, cogent reasons’ or was not
based on substantial evidence.” Forgue, 401 F.3d at 1287.
3

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During his hearing, Marcelus testified that in 2005, while working as a bus
driver in Saint-Marc, a group of men boarded his bus with a small boy that they
appeared to have kidnapped. The kidnappers held a gun to Marcelus’s head and
ordered him to drive the bus away. When Marcelus was unable to start the bus, the
kidnappers beat him up and used tear gas on him. During the attack, Marcelus’s
sister, who was also on the bus, was shot and killed by the kidnappers. The police
intervened, and Marcelus was taken to a hospital, where he was treated for 33 days.
After being released from the hospital, Marcelus gave a statement before a
judge, which resulted in a police investigation that identified three of the
kidnappers. Police arrested the three men, but they were immediately released.
Afterward, the kidnappers began knocking on Marcelus’s door and asking for him
because they wanted to kill him. Marcelus and his family fled Saint-Marc, with
Marcelus going to Port-de-Paix and Port-au-Prince and his wife and children going
to Latiti, on the outskirts of Saint-Marc. The kidnappers continued to look for
Marcelus and told his neighbors they needed to kill Marcelus because he had
identified them. The kidnappers said that if they could not find Marcelus, they
would take his children. Marcelus lived in hiding for six or seven years, before
leaving Haiti entirely.
The IJ and the BIA gave specific, cogent reasons for discrediting Marcelus’s
testimony, and those reasons are supported by substantial evidence. In particular,
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the IJ and the BIA noted that: (1) Marcelus’s asylum application stated that he had
lived at the same address in Saint-Marc from 1993 to 2011, but Marcelus testified
that he lived in hiding in Port-au-Prince and Port-de-Paix from 2005 to 2011; (2)
although Marcelus claimed he was in hiding from 2005 until 2011, his application
stated that he continued to work in Saint-Marc as a bus driver during that period;
(3) the court clerk’s report that Marcelus submitted to corroborate his account did
not mention his sister’s murder, an omission Marcelus could not explain; and (4)
while Marcelus’s application emphasized his membership in an anti-Lavalas
political group, he never mentioned the political group during his testimony, and
the court clerk’s report indicated Marcelus was merely a victim of a crime and did
not suggest any other reason for the attack. All of these reasons find support in the
record.
Moreover, the record does not compel a finding that Marcelus is credible.
Marcelus argues that he offered an explanation for one of the identified
inconsistencies (about his residences between 2005 and 2011). A tenable
explanation, however, does not compel us to overturn the IJ’s credibility
determination. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir.
2006); see also Lyashchynska, 676 F.3d at 967 (“Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” (quotation marks omitted)).
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The reasons for discrediting Marcelus are supported by substantial evidence,
and Marcelus does not contend that the other evidence in the record, absent his
discredited testimony, compels a conclusion that he was, or likely will be,
persecuted in Haiti. 3
PETITION DENIED.

3

We, like the BIA before us, note that even if Marcelus’s testimony had been credited, it
would not have shown statutory eligibility for asylum. Marcelus’s testimony showed only that
he was a victim of criminal activity and feared the perpetrators would retaliate against him
because he had reported the crime to authorities, which is insufficient to demonstrate either past
or future persecution on account of a protected ground. See, e.g., Cendejas Rodriguez v. U.S.
Att’y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013); Castillo-Arias v. U.S. Att’y Gen., 446 F.3d
1190, 1198 (11th Cir. 2006); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006).
6