Oscar Vallecio-Romero v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Oscar Ariel Vallecio-Romero. 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.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16786
Non-Argument Calendar
________________________
Agency No. A206-490-048

OSCAR ARIEL VALLECIO-ROMERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 2, 2017)
Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:

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Oscar Vallecio-Romero, a citizen of Honduras, petitions for review of the
Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration
Judge’s (“IJ”) denial, based on an adverse credibility finding, of his application for
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”). Upon review, we
conclude that the IJ and BIA articulated specific and cogent reasons for the
adverse-credibility finding, and the finding is supported by substantial evidence.
Moreover, in light of the adverse-credibility finding, no reasonable factfinder
would be compelled to find that Vallecio-Romero is entitled to CAT relief.
Accordingly, we deny the petition.
I. BACKGROUND
In February 2014, Vallecio-Romero unlawfully entered the United States
and near Hidalgo, Texas. In a sworn statement made to border patrol agents
shortly thereafter, Vallecio-Romero stated that he came to the United States to find
work and study and did not fear persecution or torture if he were returned to his
home country of Honduras.
A.

Credible Fear Interview
During his subsequent credible fear interview, Vallecio-Romero stated that

he feared he would be killed if he returned to Honduras for reporting the murder of
his 15-year-old half-brother to police. Vallecio-Romero explained that his half2

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brother on his father’s side, Bryan Noe Gonzalez Rodriguez (“Gonzalez”), was
found dead around September 15, 2013 after having been missing for 15 days.
Initially, Vallecio-Romero stated that he reported the murder to police in
December 2013, when he learned who had killed Gonzalez, but he later stated that
he reported the murder on September 20, 2013. Vallecio-Romero claimed that he
received a threatening phone call from a member of the gang that murdered
Gonzalez the day after he spoke to police, telling him to leave the country or he
would be killed. Vallecio-Romero suspected that the police were working with the
gang members because only the police knew his phone number. When asked why
he did not tell the border patrol agents that he was afraid to return to Honduras, he
said he “was scared that they would [put him] in jail.”
B.

I-589 Application
On March 17, 2014, the Department of Homeland Security (“DHS”) issued a

Notice to Appear (“NTA”), charging Vallecio-Romero as removable pursuant to
INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), for being an applicant for
admission not in possession of a valid entry document. Vallecio-Romero admitted
that he was not a U.S. citizen, was a citizen of Honduras, and was not admitted or
paroled into the United States after inspection, and conceded removability.
Vallecio-Romero subsequently filed an I-589 application for asylum,
withholding of removal, and CAT relief. In an attached statement, Vallecio3

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Romero stated, among other things, that his family discovered Gonzalez’s body “a
couple of days” after he went missing and that Gonzalez was “only 14 years old at
the time.”
In support of his application, Vallecio-Romero submitted additional
documentation, including copies of his own birth certificate, and Gonzalez’s birth
and death certificates. Of note, Vallecio-Romero’s birth certificate listed his father
as Santos Carmindo Vallecio, while Gonzalez’s listed his father as Jose Manuel
Gonzalez Contreras. Gonzalez’s death certificate, dated August 7, 2013, listed his
cause of death as asphyxiation and the date of death as “4 to 6 weeks [before].”
Gonzalez’s birth date was June 15, 1998, making him 15 years old at the time of
his death. Vallecio-Romero also provided recommendation letters from friends
and family, two of which indicated that Vallecio-Romero actually witnessed
Gonzalez’s murder.
C.

Merits Hearing Testimony
At the merits hearing, Vallecio-Romero again recounted Gonzalez’s

disappearance and murder, this time stating that he learned of the murder from
Gonzalez’s mother. Vallecio-Romero further testified that it was Gonzalez’s
mother who reported the murder to the police, and he only tried to contact police
personally after he began receiving threats from the gang members who killed
Gonzalez. On cross-examination, Vallecio-Romero insisted that he told the border
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patrol agents about Gonzalez’s murder, and he did not remember telling them that
he came to the United States to work or study.
When the IJ asked why his and Gonzalez’s birth certificates listed different
fathers, Vallecio-Romero claimed that Gonzalez’s mother initially denied that
Vallecio-Romero’s father was also Gonzalez’s father, but later admitted that he
was. Vallecio-Romero conceded, however, that he did not have any evidence
proving Gonzalez was his true half-brother. When the IJ asked how long Gonzalez
was missing before his body was discovered, Vallecio-Romero initially replied that
Gonzalez was missing for “like a month.” After the IJ pointed out that VallecioRomero had made inconsistent statements regarding the duration of Gonzalez’s
disappearance, Vallecio-Romero stated that “there [was not] an exact date, exact
number of days,” but he believed Gonzalez was missing for “15 to 30 days.”
Similarly, when the IJ questioned Vallecio-Romero about Gonzalez’s cause
of death, he first said that he believed Gonzalez was shot. After the IJ pointed out
that Gonzalez’s death certificate indicated he was likely strangled, VallecioRomero stated that gangs did sometimes strangle victims, but that Honduras did
not have the “advanced technology” necessary to determine cause of death, and he
had heard different accounts of Gonzalez’s death.

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D.

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The IJ’s Decision
The IJ issued an oral decision denying Vallecio-Romero’s application,

finding that Vallecio-Romero’s testimony was not credible. Among other things,
the IJ found that: (1) Vallecio-Romero’s signed statement to border patrol seriously
undermined his credibility, and his testimony that he did not recall telling border
patrol agents that he came to the United States to work and study was not
believable; (2) the evidence Vallecio-Romero presented regarding Gonzalez’s
relatedness as a half-brother, age, date and duration of disappearance, and manner
of death was unreliable given the inconsistencies between his testimony, prior
statements, and documentary evidence; and (3) the documentary evidence itself
contained material inconsistencies and was of questionable validity. In light of the
adverse-credibility finding, the IJ determined that Vallecio-Romero failed to prove
his eligibility for asylum, withholding of removal, or CAT relief.
Vallecio-Romero did not challenge the IJ’s denial of asylum or withholding
of removal in his appeal to the BIA, nor has he done so in his brief before this
Court. Accordingly, those claims are unexhausted and abandoned, and we do not
review them here. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,
1250 (11th Cir. 2006); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2
(11th Cir. 2005).

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E.

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The BIA’s Decision on CAT Relief
Vallecio-Romero filed a notice of appeal to the BIA, arguing that the IJ

erred in finding him ineligible for CAT relief because his testimony was credible
and he provided corroborating evidence. The BIA affirmed the IJ’s decision,
finding no clear error in the IJ’s adverse-credibility finding. The BIA agreed that
there were material inconsistencies between both Vallecio-Romero’s various
statements to the border patrol agents, during his credible fear interview, in his
asylum application, and at the merits hearing, and his testimony and the
documentary evidence he provided. The BIA further agreed that, in light of the
adverse-credibility determination, Vallecio-Romero had not established that it was
more likely than not that he would be tortured by or with the acquiescence of the
government upon his return to Honduras. Accordingly, the BIA dismissed
Vallecio-Romero’s appeal.
II. STANDARD OF REVIEW
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Where the BIA expressly agrees with the IJ’s reasoning, we
review the IJ’s decision to the extent of the agreement. Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010).

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Factual findings, which include credibility determinations, are reviewed
under the substantial evidence test. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 123031 (11th Cir. 2006). We must affirm the decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (internal quotation marks
omitted). Under this highly deferential standard of review, “[w]e view the record
evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Id. (internal quotation marks
omitted). Thus, a factual finding “can be reversed only if the evidence compels a
reasonable fact finder to find otherwise.” Chen, 463 F.3d at 1231 (internal
quotation marks omitted). “[T]he mere fact that the record may support a contrary
conclusion is not enough to justify a reversal of the administrative findings.”
Silva, 448 F.3d at 1236 (internal quotation marks omitted).
III. DISCUSSION
Pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13 § 101, 119 Stat.
302, for applications filed after May 11, 2005, a credibility determination may be
based on the totality of the circumstances, including: (1) the demeanor, candor, and
responsiveness of the applicant; (2) the plausibility of the applicant’s account;
(3) the consistency between the applicant’s written and oral statements; (4) the
internal consistency of each statement; and (5) the consistency of the applicant’s
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statements with other record evidence. INA § 208(b)(1)(B)(iii), 8 U.S.C.
§ 1158(b)(1)(B)(iii). When the IJ makes an adverse-credibility finding, the IJ must
offer “specific, cogent” reasons for the finding. Chen, 463 F.3d at 1231. The
burden then shifts to the applicant to demonstrate that the decision was not
supported by such specific, cogent reasons or was not based on substantial
evidence. Id. However, even a tenable explanation for any inconsistencies in the
applicant’s testimony will not necessarily compel reversal of an adverse-credibility
determination. Id. at 1233.
An applicant seeking CAT protection must establish that it is more likely
than not that he would be tortured if removed to the proposed country of removal.
Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).
Additionally, the applicant must show that the torture would be by or with the
acquiescence of the government. Id.
Here, the BIA and IJ gave specific, cogent reasons for the adverse-credibility
finding—namely, the inconsistencies between Vallecio-Romero’s prior statements,
hearing testimony, and documentary evidence regarding (1) his reason for entry,
(2) his relationship to Gonzalez, (3) Gonzalez’s age, and (4) the date, duration,
circumstances, and manner of Gonzalez’s disappearance and death. These were
legitimate considerations in assessing Vallecio-Romero’s credibility, and they are

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supported by substantial evidence in the record. See INA § 208(b)(1)(B)(iii), 8
U.S.C. § 1158(b)(1)(B)(iii); Chen, 463 F.3d at 1231-33.
Furthermore, even Vallecio-Romero’s proffered explanations for the
inconsistencies were not always themselves consistent. For example, VallecioRomero told the asylum officer at his credible fear interview that he did not tell
border patrol agents his true reason for entering the United States because he was
afraid that they would put him jail, but later testified that he in fact did tell the
agents his true reason for entry and did not recall giving any other reason.
Likewise, when confronted with the inconsistency between his testimony about
Gonzalez’s manner of death and Gonzalez’s death certificate, Vallecio-Romero
initially claimed that Honduras lacked the technology to accurately identify cause
of death, and then stated that he had been given conflicting accounts of Gonzalez’s
death. Thus, even if some of Vallecio-Romero’s explanations may be tenable, we
cannot say that they would compel a reasonable fact finder to reverse the IJ’s
credibility determination. See Chen, 463 F.3d at 1233.
In light of the adverse-credibility determination, substantial evidence
likewise supports the IJ’s and BIA’s finding that Vallecio-Romero was not eligible
for CAT relief. Absent Vallecio-Romero’s testimony, the evidence in the record
does not compel a finding that it is more likely than not that Vallecio-Romero

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would be tortured upon his return to Honduras by or with the acquiescence of the
Honduran government. Reyes-Sanchez, 369 F.3d at 1242.
IV. CONCLUSION
For all of the foregoing reasons, we deny Vallecio-Romero’s petition.
PETITION DENIED.

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