                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  December 7, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                              FOR THE TENTH CIRCUIT


    JOSE RODOLFO TELLO,

                Petitioner,

    v.                                                     No. 10-9513
                                                       (Petition for Review)
    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         Petitioner Jose Rodolfo Tello, a native and citizen of Peru, entered the

United States on a visitor’s visa in March 2003. In April 2004, he applied for

asylum, withholding of removal, and relief under the Convention Against Torture,

asserting that if he returned to Peru, he feared persecution from a Communist



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
terrorist group known as the Shining Path based on his past extensive involvement

with the Aprista Peruano political party. In the alternative, he applied for

voluntary departure. An immigration judge (IJ) denied relief, except for

voluntary departure, and the Board of Immigration Appeals (BIA) dismissed his

administrative appeal. Mr. Tello petitions for review from this court, challenging

only the denial of asylum. Upon consideration, we deny the petition for review.


                                   I. Background

      Mr. Tello was born in September 1961 in Lima, Peru, and is forty-nine

years old now. He asserted that his family of origin had long been involved with

the Aprista political party. 1 He said that he became involved with the junior

division at the age of twelve and continued his involvement through his teen

years. In the mid-1980’s, when he was in his twenties, he worked with Absalon

Alarcon, a former senator in Peru, and he was in charge of Internal Affairs in that

senator’s office for a year. From approximately 1992-1994, he was the general

secretary of a district for the Aprista party. From 1990-1994, he also worked with

Dr. Luis Alberto Sanchez, an author who had previously served as vice-president

of the Republic of Peru. After Dr. Luis Alberto Sanchez’s death in 1994,

Mr. Tello worked for his son, also named Dr. Sanchez, for a couple of years.

Mr. Tello also held various other jobs.

1
      The Aprista Peruano party is also known as “APRA” (American Popular
Alliance) and “PAP” (Aprista Americano). Admin. R., Vol. 1, at 105-06.

                                          -2-
      Mr. Tello asserted that, in 1987, his uncle and cousin were forcibly

removed from a bus in Peru and killed by members of the Shining Path because

they were known to be involved with the Aprista party. He said that his brother,

Percy, who was on that bus but was not harmed, came to the United States in

1992 or 1993, was eventually granted asylum, and, at the time of the hearing, was

a serviceman in the Army who was serving or had served in Iraq. Mr. Tello

asserted that his brother, Ismael, was killed for political vengeance by the Shining

Path in 1993, but he conceded that the police attributed the motive behind

Ismael’s death to robbery. Mr. Tello said that his brother, Juan, was injured in a

car accident in 1996, and Mr. Tello believes that the accident was caused by the

Shining Path. Juan now lives in the United States with his American wife.

Mr. Tello’s sister, Maria, is a police officer in Peru who has been threatened

many times; she lives with her family in a police compound. Mr. Tello also

asserted that his brother, David, came to the United States in 1999. The hearing

transcripts indicate that David had filed an application for asylum that was

eventually denied. Mr. Tello stated that his brother, Rene, had moved to Spain

with his family, and that Mr. Tello’s parents and his brother, Julio, were living in

North Carolina with his brother, Percy.

      Mr. Tello stated that from 1996 through 2000, he did not receive any

threats from or have any problems with the Shining Path in Peru. He said that in

approximately 2001 and 2002, he worked on the political campaign of

                                          -3-
Anselmo Revilla Jurado, an Aprista party candidate for senator, but after

approximately 2001, he was no longer active in politics. Mr. Tello asserted that

in approximately 2000 or 2001, some Shining Path members were released from

prison, and he began to receive death threats through anonymous phone calls.

      Mr. Tello said that he was assaulted in January 2003 by men claiming to be

members of the Shining Path. He said that two cars forced him to stop his car at

an intersection as he drove home from work, and four young people forced him

out of his car and beat him with their fists until he was unconscious. He said that

they were going to shoot him, but witnesses appeared, so they left him. He said

that they left pamphlets and shouted notorious statements of the Shining Path to

observers. Mr. Tello said that he filed a police report and then was treated at a

hospital emergency department and released the same day. He stated that this

incident prompted him to come to the United States in March of 2003. His wife

and children joined him a few months later. Mr. Tello produced a copy of the

report he made to the police of the January 2003 assault and several hundred

pages of general information about Peru. None of his family members appeared

as witnesses for him, however, and Mr. Tello did not produce a report showing

the result of the police investigation of the January 2003 incident, the hospital

report from the January 2003 incident, or affidavits from any members of his

family.




                                          -4-
      After the final hearing, the IJ provided two main reasons why Mr. Tello

should be denied asylum or other relief: (1) the past events he described did not

rise to the level of persecution; and (2) he failed to present corroboration for his

testimony of a physical assault in January 2003, other than a police report that

merely restated his own position about it, and he failed to show that the alleged

attack was on account of a protected ground. The BIA dismissed Mr. Tello’s

appeal, agreeing with the IJ that: (1) the alleged threatening phone calls did not

rise to the level of persecution; and (2) Mr. Tello failed to establish that the

alleged physical assault in January 2003 was on account of a protected ground,

rather than random criminal activity.


                          II. Issue on Appeal and Analysis

      Mr. Tello argues on appeal that the IJ applied an incorrect legal standard by

requiring him to corroborate his testimony with other evidence. He submits that

corroboration may now be required under § 101(a)(3) of the REAL ID Act, but

that subsection applies only to applications for asylum made on or after the date

on which the REAL ID Act was enacted, May 11, 2005. See Pub. L. 109-13,

§ 101(a)(3), (h)(2), 119 Stat. 231, 303, 305. He correctly asserts that his

application was filed in April 2004, before that revision went into effect. He also

correctly contends that before the REAL ID Act, an alien’s testimony alone could

support a claim for asylum, Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir.


                                          -5-
2004), “where the testimony [wa]s believable, consistent, and sufficiently detailed

to provide a plausible and coherent account of the basis for his alleged fear[,]”

In re Dass, 20 I. & N. Dec. 120, 124 (BIA 1989). He asserts that the IJ explicitly

found him credible, Admin. R., Vol. 1, at 75, but then improperly rejected his

testimony about the political motives of his attackers in January 2003, stating that

“while the Court believes that the respondent has a subjective fear of returning to

Peru[,] the Court finds that the fear is not supported by objective and credible

evidence that he should have that fear[,]” id. at 80.

      To be eligible for asylum, an alien must first show that he is a “refugee.”

Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004). To establish refugee

status, the applicant must demonstrate that he has suffered past persecution or has

“a well-founded fear of [future] persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A). “Aliens basing their asylum claims upon a

well-founded fear of future persecution must show both a genuine, subjective fear

of persecution, and an objective basis by credible, direct, and specific evidence in

the record, of facts that would support a reasonable fear of persecution.”

Wiransane, 366 F.3d at 893 (quotation and alterations omitted).

      Although the BIA implicitly rejected Mr. Tello’s argument that the IJ

applied an incorrect legal standard for corroboration, the BIA did not expressly

address it, and we therefore “consult[] the IJ’s more complete explanation of

                                          -6-
those same grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.

2006). We review the IJ’s legal determinations de novo and its findings of fact

for substantial evidence. Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091

(10th Cir. 2008). “[T]he IJ’s findings are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Id. (quotations

omitted).

      Mr. Tello’s argument betrays its weaknesses. We held in Sviridov that “an

alien’s testimony alone may support an application for . . . asylum,” not that

testimony found credible must be accepted as conclusive support for an asylum

claim. 358 F.3d at 727 (emphasis added) (citing 8 C.F.R. § 208.13(a) (“Burden of

proof. . . . The testimony of the applicant, if credible, may be sufficient to sustain

the burden of proof without corroboration.”)). In this case, the IJ found Mr. Tello

credible, but the IJ also stated that his testimony was “sketchy, not corroborated

and certainly did not provide the detail which the Court would desire[.]” Admin.

R., Vol. 1, at 75.

      The IJ found that the past incidents Mr. Tello testified about did not rise to

the level of persecution. Id. at 81-82. Mr. Tello has not challenged this finding

on appeal, so he was required to “show both a genuine, subjective fear of [future]

persecution, and an objective basis by credible, direct, and specific evidence in

the record, of facts that would support a reasonable fear of persecution.”

Wiransane, 366 F.3d at 893 (quotation and alterations omitted). The IJ, however,

                                          -7-
stated that Mr. Tello’s subjective fear was “not supported by objective and

credible evidence that he should have that fear.” Admin. R., Vol. 1, at 80.

Indeed, the IJ stated that the general record evidence about Peru “contradicted”

Mr. Tello’s expressed fear, because that evidence “clearly show[ed that] the

government of Peru has been spending, and is spending, much of [its] resources,

energy and time on controlling . . . the terrorism with respect not only to the

Shining Path[,] but with other terrorist[] organizations within the country of

Peru.” Id. at 79-80. The IJ also noted that Mr. Tello’s sister is a police officer in

Peru, and Mr. Tello should have corroborated his testimony of a physical attack in

January 2003. Id. at 84-85. Further, the IJ noted that even if Mr. Tello’s

attackers yelled platitudes about the Shining Path, that did not establish that they

targeted him on account of his past political activity. Id. at 85.

      Based upon our review of the record and the IJ’s decision under the law as

it stood before the enactment of the REAL ID Act, we conclude that the IJ did not

err by expecting Mr. Tello to have corroborated key aspects of his claim. To the

extent that the IJ found part of Mr. Tello’s testimony not credible without

corroboration, the IJ gave “specific, cogent reasons” for doing so. See

Wiransane, 366 F.3d at 897 (quotation omitted). Based upon our review of the

evidence, we are not compelled to conclude that the IJ’s findings of fact are

erroneous.




                                          -8-
The petition for review is DENIED.


                                      Entered for the Court



                                      John C. Porfilio
                                      Senior Circuit Judge




                                -9-
