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FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 7, 2009
THOMAS K. KAHN
CLERK
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 7, 2009)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
reasonable option, because they failed to address the statutory factors set out in
8 C.F.R. 1208.13(b)(3), and because the 2005 and 2006 Country Reports stated
that the ELN continued to engage in illegal activities in Colombia.
We review only the [BIAs] decision, except to the extent that it expressly
adopts the IJs opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). In the instant case, the BIA issued its own opinion with analysis and did
not expressly adopt the IJs decision. Therefore, we review only the BIAs
decision.
To the extent that the BIAs decision was based on a legal determination,
review is de novo. D-Muhumed v. U.S. Atty Gen., 388 F.3d 814, 817 (11th Cir.
2004). The BIAs factual determinations, however, are reviewed under the
substantial-evidence test, which requires us to view the record evidence in the
light most favorable to the agencys 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 must affirm the BIAs 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 record not only supports reversal, but compels
it. Mendoza v. U.S. Atty Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
Based on the evidence and viewing the record in the light most favorable to
the agencys decision, the BIAs determination that Melgarejo-Sandoval was not
and will not be persecuted because of his political opinion or his membership in a
particular social group is supported by substantial evidence and does not compel
reversal.
II. BIAs credibility determination and factual findings
As to factual findings on credibility, the fact-finder must determine
credibility, and we may not substitute our judgment for that of the fact-finder with
respect to credibility findings. Yang v. U.S. Atty Gen., 418 F.3d 1198, 1201
(11th Cir. 2005). When a fact-finder says not that [s]he believes the asylum
seeker or [that] [s]he disbelieves her . . . the reviewing Court is left in the dark.
Id. (citations omitted). If credible, an aliens testimony may be sufficient, without
corroboration, to sustain her burden of proof in establishing her eligibility for relief
from removal. Forgue, 401 F.3d at 1287. However, our case law mandates that
specific, cogent reasons for a credibility determination be given only in the
context of adverse credibility findings. See, e.g., id.; D-Muhumed, 388 F.3d at
819.
Because the BIA presumed that Melgarejo-Sandovals testimony was
credible and therefore was not obligated to provide explicit reasons for its
credibility determination, and because there was substantial evidence supporting
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testimony and relied on the Country Report. See Arboleda, 434 F.3d at 1224
(finding that the DHSs submission of two country reports and an asylum profile
was insufficient to meet its burden).
Furthermore, Melgarejo-Sandovals inability to establish that any past
persecution or fear of future persecution was because of a protected ground is fatal
to his asylum claim. See Sepulveda, 401 F.3d at 1232 n.7. Therefore, even if the
IJ failed to properly analyze the relocation factors, the error was harmless. (Id.).
Because substantial evidence supported the BIAs conclusion that
Melgarejo-Sandoval did not meet his burden of proving that internal relocation was
unreasonable and because any failure by the BIA to apply the reasonableness
factors was harmless error, the BIA did not err when it determined that internal
relocation was reasonable.
Upon review of the record and consideration of the parties briefs, we find
no reversible error. Accordingly, we deny the petitioners petition for review.
PETITION DENIED.