                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        July 14, 2006
                             FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court



    H ERBER T D O U G LA S
    M OSCO SO-M ORA LES,

              Petitioner,
                                                          No. 05-9524
     v.                                                (No. A97-187-270)
                                                      (Petition for Review)
    ALBERTO R. GONZALES, Attorney
    General,

              Respondent.



                             OR D ER AND JUDGM ENT *


Before KELLY, BR ISC OE, and LUCERO, Circuit Judges.


          Herbert Douglas M oscoso-M orales petitions for review of the Board of

Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ)

denial of his request for asylum and withholding of removal. The IJ concluded

that petitioner was not eligible for asylum because he had not met his burden of



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
establishing past persecution or a well-founded fear of future persecution. This

conclusion was based on the IJ’s determination that petitioner was not credible

with regard to his fear of living in Colombia. The BIA adopted and affirmed the

IJ’s decision with some additional reasoning. W e have jurisdiction to review the

BIA’s decision under 8 U.S.C. § 1252(a). Because w e conclude that the BIA’s

adverse credibility determination is not supported by substantial evidence, we

reverse and remand for further proceedings.

                                     Background

      Petitioner is a native and citizen of Colombia. He was raised in the

M ormon Church and spent most of his life in religious activity serving on various

committees and teaching. Petitioner married Nancy Elena Pineros-Sanchez in

2000. In January 2001, he was appointed a teacher at La M erced High School in

Ibague, which is about 100 miles west of the capitol. In Ibague, he became

interested in the political campaign of Juan Felipe Ortiz, who was also a church

member. M r. Ortiz was a member of the national liberal party and a member of

the local party called the Colombian Conservatives. Petitioner was quite active in

the campaign as the chief of debate and the advisor concerning television spots

for the candidate. He also did some campaigning in the northern parts of the city.

During this time, petitioner was also involved with an informal group called the

Veedors, which is translated as “auditors.” This group tried to root out corruption

in the local city government and bring it to the public’s attention.

                                          -2-
       Petitioner testified that at the beginning of the school year in 2001, a man

approached him and told him that he should be instructing the students that they

should become a part of the People’s Army. This was a reference to FARC,

which is the principal revolutionary group in Colombia and has been responsible

for thousands of deaths in that country. Petitioner refused to cooperate with the

man and instead publicly denounced FA RC during class and in meetings with the

parents. He testified that on November 12, 2001, he was approached by two men

on motorcycles who blocked his path. They threw him to the ground and

threatened him and made him promise not to participate in any more political

activity. They told him he had no authorization from them to be involved in

political activity.

       According to petitioner, after this incident, he received a telephone threat

that same day and then for the next few months he and his w ife received twelve to

fifteen calls that he described as threatening and vulgar. He testified that in many

of the calls the caller would describe what petitioner had been doing that day

which indicated to petitioner that he was being followed. Petitioner and his wife

finally stopped answ ering their phone and disconnected it. Although his affidavit

states that these were threats “against our lives” he testified that actually the

threats were against his wife’s life only.

       Because of these telephone threats, petitioner and his wife decided to take a

trip to get aw ay from everything. They attended a M ormon celebration in

                                             -3-
Nauvoo, Illinois in June 2002 for a period of two weeks. They returned to

C olom bia, but decided to move to Bogota to live with petitioner’s mother. On

September 25, 2002, petitioner received a written death threat that was hand

delivered to his mother’s house. The letter stated “[w]e know of all your political

and informant activities for your M ormon cult” and it gave him twenty-four hours

to disappear or he would be “eliminated.” Admin. R. at 253. Petitioner bought

airline tickets to the United States and he and his wife left the next day. They

entered the United States on six-month visitor visas. W hile they were in the

United States, petitioner and his wife learned that Felix M artinez, another member

of their political organization, was assassinated. After hearing this new s,

petitioner applied for asylum and withholding of removal.

                                  Scope of Review

      The threshold question for consideration is “whether we review (1) the

BIA’s affirmance, (2) the IJ’s original analysis, or (3) both agency decisions.”

Uanreroro v. Gonzales, 443 F.3d 1197, 1202-03 (10th Cir. 2006). In this case,

the BIA issued a single-member brief order. In such a case, the BIA’s decision is

the final order and “w e will not affirm on grounds raised in the IJ decision unless

they are relied upon by the BIA in its affirmance.” Id. W e can look to the IJ’s

decision, however, to provide a more complete explanation of the grounds relied

upon by the BIA . See id. “This is especially appropriate w here the B IA




                                         -4-
incorporates by reference the IJ’s rationale or repeats a condensed version of its

reasons while also relying on the IJ’s more complete discussion.” Id.

                                 Standard of Review

      “Although always deferential to agency fact-finding, we must ensure that

BIA conclusions are sufficiently supported by the available evidence.” Id. This

court reviews a BIA decision to determine w hether the factual findings “are

supported by reasonable, substantial and probative evidence considering the

record as a whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004).

Credibility determinations “are subject to the substantial evidence test.” Id.

“W here the B IA’s decision relies upon an IJ’s initial findings, we must ensure

that such determinations are substantially reasonable.” Uanreroro, 443 F.3d at

1204 (quotation omitted). These credibility determinations will be upheld “so

long as the IJ provides specific, cogent reasons for disbelieving the w itness’

testimony. This standard of review is a deferential one, but we do not blindly

accept an IJ’s determination that an alien seeking asylum or restriction on

removal is not credible.” Elzour, 378 F.3d at 1152 (quotation and citation

omitted).

      An adverse credibility determination may be based on inconsistencies in the

witness’ testimony, lack of sufficient detail, implausibility, or testimonial

demeanor. Id. at 1152-1153. “A n IJ’s finding that an applicant’s testimony is

implausible may not be based upon speculation, conjecture, or unsupported

                                          -5-
personal opinion.” Id. at 1153. This court is bound by the reasons given by the

agency, and may not affirm on other grounds. M ickeviciute v. INS, 327 F.3d

1159, 1162-63 (10th Cir. 2003). This court may reverse and remand for further

proceedings when the IJ’s credibility determination is not adequately supported.

See Chaib v. Ashcroft, 397 F.3d 1273, 1280 (10th Cir. 2005); Elzour, 378 F.3d at

1154.

                                      Discussion

        Petitioner bears the burden of establishing that he is a refugee, and

therefore eligible for asylum, by demonstrating that he suffered past persecution

or that he has a well-founded fear of future persecution. See Castaneda v. INS,

23 F.3d 1576, 1578 (10th Cir. 1994). Petitioner asserts that he has met his burden

of demonstrating that he has a well-founded fear of future persecution. The IJ

concluded, however, that petitioner had not met his burden because he had not

shown a genuine fear of living in Colombia. This determination was based in part

on petitioner’s decision to travel to the United States for two weeks in the

summer of 2002 and then return to Colombia even though he had been subjected

to threats before he took the trip. The IJ also doubted petitioner’s credibility

about the threats because there was an inconsistency in petitioner’s testimony

about w hether both his and his wife’s life had been threatened.

        The BIA adopted and affirmed the IJ’s decision in a brief order. The order

stated that it was providing some additions to the IJ’s decision and then it went on

                                           -6-
to state that the BIA agreed that the discrepancy in the testimony regarding who

received the threats and the petitioner’s actions with regard to returning

voluntarily to Colombia in 2002 supported the IJ’s decision. The BIA included

an additional paragraph giving further specific information about the

inconsistency in the testimony. Because the BIA expressly adopted the IJ’s

decision, we can look to that decision to provide a more complete explanation for

the grounds provided by the BIA . See U anreroro, 443 F.3d at 1204.

      W e conclude that the IJ did not sufficiently support his credibility findings

and that the BIA’s decision does not further clarify the credibility issue. This

court’s

      review is confined to the reasoning given by the IJ [or the BIA], and
      [the court] will not independently search the record for alternative
      bases to affirm. If an agency decides a case on a ground believed by
      an appellate court to be wrong, the case has to be remanded to the
      agency.

Elzour, 378 F.3d at 1150 (quotation and citation omitted).

      Inconsistent Testimony

      Both the IJ and the BIA found significant the inconsistency between

petitioner’s testimony about the telephone threats he and his wife received and the

statement in his affidavit about those threats. In the affidavit, petitioner stated

“[a]fter this day the telephone threats and offenses started at different hours of the

day, some listed where I had been during the day and with whom I had met,

others were only vulgar and others contained threats against our lives.”

                                          -7-
Admin. R. at 212. During the hearing, petitioner was questioned about these

telephone threats:

      Q.     . . . [T]hese telephone calls that you received after November
             of [2001] and before you came to the United States the first
             time, did they ever threaten you with death?
      A.     They threatened my wife and me.
      Q.     W ith death?
      A.     The death threats w ere directed to my wife. I think it was to
             frighten me.
      Q.     But not against you?
      A.     No . . . .
      Q.     Because your statement stays that some of the threats were
             vulgar and others were threats against our lives, but now
             [you’re] saying it’s only against your wife, is that right?
      A.     Yes, we are one. I understand that if someone threatens my
             wife, they threaten me.

Id. at 89. Petitioner’s testimony very ably explains w hy he stated in the affidavit

that the threats were against “our lives.”

      Because petitioner testified that he did not receive any death threats against

his own life by phone, the BIA noted that this was inconsistent with a notarized

statement by someone known to petitioner, Carlos Guzman, which stated that

petitioner received death threats by phone between December of 2002 and the

start of 2003. The BIA’s ruling seems to confuse two periods of threats (the 2001

threats and the 2002-2003 threats) and fails to include a discussion of additional

relevant record evidence. The threats discussed in the testimony quoted above

occurred when petitioner and his w ife were still living in Ibague. The threats

referred to in M r. Guzman’s statement occurred after they left Colombia in 2002



                                             -8-
and were living in the United States. W hen he w as asked about M r. Guzman’s

statement later in the hearing, M r. M oscoso-M orales explained that threats

continued against him even after he left the country through calls made to the

high school where he had worked and to his political party’s headquarters. Id. at

90.

      “Inconsistencies of less than substantial importance for which a plausible

explanation is offered cannot form the sole basis for an adverse credibility

finding.” Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (quotation

omitted). This inconsistency identified by the BIA is of less than substantial

importance because regardless of whether or not petitioner received death threats

by phone, it is undisputed that he received a death threat in writing, which

prompted him immediately to flee from Colombia. This w ritten death threat is

not discussed by the B IA in its decision and goes to the heart of petitioner’s

asylum claim. M oreover, petitioner offered a plausible explanation for why he

stated in the affidavit that the telephone threats were against “our lives.”

      Trip to the United States in 2002

      Both the BIA and the IJ also found significant the fact that petitioner and

his wife decided voluntarily to return to Colombia after their two-week stay in the

United States in June 2002. The IJ stated that this demonstrated that petitioner

and his wife w ere not afraid to live in C olombia. Petitioner explained, however,

the reasons for his return after this initial visit to the United States. Before they

                                           -9-
left on their trip, petitioner had received one threat in person to stop his political

activity and had received threats over the telephone against his wife. Petitioner

testified that they did not consider staying in the United States at the time of that

trip because they “were under the illusion that [the telephone threats were] just

going to be something that would pass.” Admin R. at 93-94. Petitioner testified

that he did not apply for asylum on that trip because he “thought that everything

was going to be fine. [He thought] that the people that were protecting [him]

would be able to protect [him].” Id. at 90.

      Although petitioner thought he could still live safely in Colombia, upon his

return from his trip to the United States, petitioner and his wife took the

precaution of moving from their town to the capitol city of Bogota. This move,

however, did not protect them. W ithin three months, petitioner received a letter

threatening his life if he did not leave within twenty-four hours. See id. at 77,

253. Petitioner and his wife took the threat seriously, fled immediately to the

United States, and ultimately sought asylum.

      The IJ and BIA’s reliance on the fact that petitioner and his wife

voluntarily returned to Colombia in June 2002 does not consider all of the

relevant information. “W hen making a credibility determination, the IJ is

required to consider ‘the totality of the circumstances, and all relevant factors.’”

Uanreroro, 443 F.3d at 1210 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The IJ and

BIA’s reasoning is incomplete because it fails to consider petitioner’s actions

                                          -10-
after his return to Colombia: the move to Bogota, the receipt of the written death

threat, and the immediate departure for the United States. Although it was

appropriate for the BIA to consider petitioner’s voluntary return in 2002 as a

factor in its credibility determination, it alone does not “rise to the level of

‘substantial evidence’ to support an adverse decision on [petitioner’s] claims for

relief.” Uanreroro, 443 F.3d at 1211.

      Additional Reasons Provided by the IJ

      The IJ stated two other reasons for its adverse credibility decision that were

not mentioned by the BIA. These additional reasons, however, do not provide

sufficient support for the adverse credibility determination. The IJ stated that he

believed that petitioner’s conduct showed that he was not afraid to return to his

native country. Specifically, he stated that he did not believe that petitioner was a

genuine asylum seeker because petitioner did not leave after the allegedly

threatening letter was handed to him. This statement is in direct contradiction to

record evidence. Petitioner testified that the same day he received the written

death threat letter, he purchased the plane tickets to come to the United States and

they left the next day. Admin. R. at 77-78.

      Second, the IJ found it hard to believe that petitioner did not apply for

asylum immediately after coming to the United States, but instead waited until

someone in his organization was killed. This finding is improperly based on

unsupported personal opinion. See Elzour, 378 F.3d at 1153. The fact that

                                          -11-
petitioner waited to apply for asylum until he learned of Felix M artinez’s murder

does not undermine his claim that he has a fear of future persecution; instead, it

supports it. Petitioner testified in his affidavit and at the hearing that he did not

intend to file for asylum when he and his wife initially fled the country.

Admin. R. at 78; 213. He intended “[j]ust to leave the scene for a bit to calm

things down.” Id. at 78. But once another person from his political organization

was assassinated, it became clear that there could be no safety for them in

Colombia. Id. at 78-80. The written death threat combined with the actual

murder of one of their colleagues provided petitioner with a necessary piece of

objective evidence to support his claim for a w ell-founded fear of future

persecution. See Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004)

(requiring showing of objective basis for fear of future persecution by “credible,

direct, and specific evidence”). The IJ failed to address this relevant evidence.

                                      Conclusion

      Because “[t]he reasons presented by the IJ and repeated in part by the B IA

neither individually nor collectively constitute substantial evidence to support

[the agency’s] final determination,” Uanreroro, 443 F.3d at 1211, we REVERSE




                                          -12-
the BIA ’s final order and REM AND for further proceedings.



                                                  Entered for the Court



                                                  M ary Beck Briscoe
                                                  Circuit Judge




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