                                                                    [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                   FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                         -------------------------------------------U.S. COURT OF APPEALS
                                      No. 04-13956                    ELEVENTH CIRCUIT
                                                                      NOVEMBER 18, 2005
                              Non-Argument Calendar
                                                                       THOMAS K. KAHN
                        --------------------------------------------        CLERK

                                BIA No. A95-227-558

LUIS FABRICIANO RICO,

                                                         Petitioner,

                                          versus

U.S. ATTORNEY GENERAL,

                                                         Respondent.

              ----------------------------------------------------------------
                     Petition for Review of an Order of the
                         Board of Immigration Appeals
              ----------------------------------------------------------------

Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit
Judges.


PER CURIAM:


      Luis Fabriciano Rico, a native and citizen of Colombia, petitions pro se for

review of the final order of the Board of Immigration Appeals (BIA), which
affirmed the immigration judge’s denial of asylum, denial of withholding of

removal, and denial of relief under the United Nations Convention Against

Torture (CAT). Removal proceedings commenced after 1 April 1997; the

permanent provisions of the Immigration and Nationality Act, as amended by the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, 110 Stat. 3009 (1996), govern this petition. We deny the petition.

      Rico argues that he established past persecution and a well-founded fear of

future persecution on account of (1) his political opinion, due to his affiliation

with “Movement Leaders in Action” (LEA), a group belonging to the Colombian

Liberal Party, and (2) his membership in a social group: Oasis, a gay/lesbian

organization that helped bisexuals, transsexuals, and people infected with HIV.

Rico contends that, because of his membership in LEA and his participation in

political campaigns, the Revolutionary Armed Forces of Colombia (FARC) in

1995 threatened him with death and tried to demand a “war tax” on his farm; in

1996 FARC eventually assassinated his nephew, who was in charge of the farm.

Further, because of his active involvement with LEA and with Oasis, and because

he is gay and HIV positive, Rico asserts that he was targeted by the Colombian

United Auto Defenses (AUC), a paramilitary group that (1) in May 1998

committed a “massacre” that Rico protested against, (2) beginning in June 1998

                                           2
threatened his and his family’s lives with over one hundred phone calls, (3) in

August 2000 killed one of Rico’s friends, Jarro Ospina, who also was an Oasis and

LEA activist, (4) told Rico that he was next on the list, and (5) in February 2001,

sent three members to Rico’s parents’ house to kill him. Rico also claims that his

companion, Juan Carlos Rodriguez, was granted asylum based on his participation

in LEA and his gay status.

       We review the IJ’s findings of fact under the “substantial evidence” test: we

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

probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft,

257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation omitted).1 “To reverse the IJ’s

fact findings, we must find that the record not only supports reversal, but compels

it.” Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). We

also review the IJ’s credibility determinations under the “substantial evidence”

test. D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 818 (11th Cir. 2004).

And on credibility determinations, we may not substitute our judgment for that of

the IJ. Id.




   1
    The BIA affirmed the IJ’s decision without opinion: we review the IJ’s decision as the final
agency determination. See Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1285 n.2 (11th Cir. 2005).

                                               3
      An alien may obtain asylum if he is a “refugee”: a person unwilling to return

to his country of nationality “because of persecution or a well-founded fear of

persecution on account of,” among other things, political opinion and membership

in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1), (b)(1). The

asylum applicant bears the burden of proving statutory “refugee” status with

specific and credible evidence. Al Najjar, 257 F.3d at 1284, 1287.

      Here, the IJ determined that, because Rico was not credible, he failed to

show that he qualified for asylum relief. Substantial evidence supports the IJ’s

adverse credibility determination. First, we share the IJ’s concerns that Rico failed

to mention in his initial asylum application his claims of AUC persecution on

account of his membership in Oasis and his status as gay and HIV-positive. These

claims are significant; and Rico relies on them as much as his claims of

persecution based on his LEA membership, which was the foundation of his initial

application. But Rico only raised these claims in a second asylum application

filed ten months after his initial asylum application. Rico’s counsel stated that

Rico was seeking asylum on “different grounds” and was submitting a “whole new

application.” And Rico did not include in his second application the facts he

included in the first application. We could affirm the IJ’s adverse credibility

determination on this basis alone: the two applications contained completely

                                          4
separate grounds for relief. We also express doubt about Rico’s explanation on

why he did not include this information in the initial application: despite his life

being threatened, he asserts that, at the time, he did not know that he could seek

asylum on these grounds and he did not want the IJ to be prejudiced toward him

because of his sexual orientation.

       Even if we believe Rico’s explanation for why he did not raise these claims

initially -- and construe his second application as a supplement to the first

application -- we still conclude that substantial evidence supports the IJ’s adverse

credibility determination. We initially note that Rico’s asylum applications, as a

whole, generally were consistent with his testimony at the asylum hearing. But

several major, unexplained facts and inconsistencies support the adverse

credibility determination.

       At the hearing, Rico testified in detail about his involvement as an LEA

member in protesting the AUC’s 1998 massacre and its subsequent many phone

threats. Rico, however, did not mention the harassing telephone calls in either

application, did not mention that the AUC in particular was responsible, and did

not provide evidence corroborating the threatening phone calls.2 Also, Rico’s


  2
  Rico only mentioned that he was threatened and that his partner, Rodriguez, received threatening
phone calls. And Rico did not mention the frequency of the threats to him or whether these threats
were made by telephone.

                                                5
testimony about the asylum status of his companion, Rodriguez, is dubious. Rico

suggested that Rodriguez was granted asylum at least in part because he is gay.

But Rico later stated that Rodriguez did not disclose that he was gay on his asylum

application; and Rico did not submit evidence corroborating Rodriguez’s asylum

status. Further, Rodriguez was present at Rico’s hearing but did not testify.

       Important, Rico repeatedly traveled to Colombia from the United States

during the time when he allegedly was being persecuted. And he failed to explain

his statement that, despite his alleged persecution, he has custody of his daughter

because she is “safer” with him than his mother. Both of these facts diminish the

believability of Rico’s fear of persecution. The inconsistencies in Rico’s

testimony are not minor: they call into question the grounds of Rico’s asylum

claim. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (stating that adverse

credibility finding must go to the “heart” of the asylum claim and should not be

based on minor inconsistencies). And as the IJ concluded, the documentary

evidence that Rico presented does not compel a different conclusion.3



  3
    At most, the evidence that Rico submitted shows the problems in general that homosexuals and
HIV-positive persons experience in Colombia, that Rico is HIV-positive, that Rico’s nephew was
shot to death while riding a motorcycle, that Rico complained in writing to Credhos, a Colombian
human rights group, of the threats he received from FARC and the AUC because of his membership
in the LEA, and that he was a member of Oasis. But this evidence did not address the concerns that
the IJ had about Rico’s credibility.

                                                6
       Rico contends that, if the IJ had unanswered questions after Rico testified,

the IJ should have asked Rico. But Rico -- not the IJ -- bears the burden of

proving eligibility for asylum. See 8 C.F.R. § 208.13(a). In sum, the IJ provided

cogent reasons for his credibility determination: these reasons are supported by

substantial record evidence. See D-Muhumed, 388 F.3d at 819 (citations omitted).

We uphold the IJ’s denial of asylum relief.4

       PETITION DENIED.




   4
    Because Rico has failed to establish a claim of asylum on the merits, he necessarily has failed
to satisfy the higher burden for an applicant seeking withholding of removal, see Forgue, 401 F.3d
at 1288 n.4, and CAT relief, see Al Najjar, 257 F.3d at 1303.

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