                                                                      [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                         Dec. 14, 2009
                                    No. 08-17187                       THOMAS K. KAHN
                              ________________________                     CLERK


                               Agency Nos. A099-920-296
                                    A099-920-297

ALFREDO ENRIQUE KANN VEGAS,
NELCY JOSEFINA SANCHEZ,

                                                                                 Petitioners,

                                           versus

U.S. ATTORNEY GENERAL,

                                                                                Respondent.


                              ________________________

                         Petition for Review of a Decision of the
                              Board of Immigration Appeals
                              _________________________

                                   (December 14, 2009)

Before CARNES and HULL, Circuit Judges, and GOLDBERG,* Judge.

PER CURIAM:

       *
        Honorable Richard W. Goldberg, United States Court of International Trade, sitting by
designation.
       Petitioners Alfredo Enrique Kann Vegas (“Kann Vegas”) and his wife Nelcy

Josefina Sanchez petition for review of the Board of Immigration Appeals’

(“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying their

applications for asylum, withholding of removal, and relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (“CAT”).1 After review and oral argument, we grant the

petition.

                                   I. BACKGROUND

       Kann Vegas, a native and citizen of Venezuela, last entered the United States

on or about September 17, 2005 on a non-immigrant visa. On July 25, 2006, Kann

Vegas filed an application for asylum, withholding of removal, and relief under

CAT, claiming persecution in Venezuela for his political opinion and membership

in a particular social group. The government issued a Notice to Appear, charging

Kann Vegas with being removable pursuant to Section 237(a)(1)(B) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), as a non-immigrant

who remained in the United States beyond the time permitted by his visa.

       After an asylum hearing at which Kann Vegas testified, the IJ issued a

written decision finding Kann Vegas not credible and denying his applications for

       1
         The asylum application of Nelcy Josefina Sanchez was derivative of Kann Vegas’s
application. Accordingly, the discussion of Kann Vegas’s asylum claim on appeal applies
equally to Nelcy Josefina Sanchez.
                                                2
asylum, withholding of removal, and relief under CAT. The IJ explicitly found

that Kann Vegas was not credible, listing five reasons to support this finding: (1)

Kann Vegas was unable to recall how many demonstrations he attended in an

average week after he returned to Venezuela in 2002; (2) Kann Vegas was unable

to recall the number of threatening phone calls he received; (3) Kann Vegas’s

testimony was “general, meager, vague, and lacking in any meaningful detail”; (4)

the corroborative evidence Kann Vegas submitted “did little to shed light on [his]

political activities”; and (5) Kann Vegas returned to Venezuela from the United

States on three separate occasions, even after he was allegedly shot at in

Venezuela.2

       Kann Vegas filed a timely appeal with the BIA. The BIA affirmed the IJ’s

decision without opinion. Kann Vegas petitioned this Court for review.

                                      II. DISCUSSION

A.     Standard of Review

       On appeal, Kann Vegas argues that the IJ erred in finding that he was not

credible. Because the BIA’s decision summarily affirmed the IJ’s decision, we

review the IJ’s opinion. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1


       2
        In his decision, the IJ cited one additional reason in support of his adverse credibility
determination: that Kann Vegas failed to establish he had any scars on his body or that he
suffered any permanent physical injury as a result of an incident in April 2005, in which Kann
Vegas was kidnaped and electrocuted. The government does not rely on this finding on appeal.
Therefore, we do not address it in our analysis of the IJ’s adverse credibility determination.
                                                  3
(11th Cir. 2003). We review the IJ’s factual determinations, including credibility

determinations, under the substantial evidence test. Forgue v. U.S. Att’y Gen., 401

F.3d 1282, 1286 (11th Cir. 2005) (citation omitted). Under this test, we will affirm

if the decision “is supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” Id. (citation and quotation marks omitted). To

the extent the IJ’s decision was based on a legal determination, review is de novo.

Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001).

B.    Credibility Determinations

      An alien is entitled to asylum if he can establish, with specific and credible

evidence: (1) past persecution on account of a statutorily listed factor; or (2) a

“well-founded fear” that a statutorily listed factor will cause future persecution. 8

C.F.R. §§ 208.13(a), (b); Al Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir.

2001). If an alien is unable to meet the “well-founded fear” standard for asylum,

“he is generally precluded from qualifying for either asylum or withholding of

[removal].” Al Najjar, 257 at 1292-93. Similarly, the burden on the alien seeking

CAT relief is higher than the burden imposed on the asylum seeker. Id. at 1303.

      In order to make an adverse credibility determination, the IJ must explicitly

state that the applicant’s testimony was not credible. Yang v. U.S. Att’y Gen., 418




                                           4
F.3d 1198, 1201 (11th Cir. 2005).3 If the IJ explicitly determines an alien is not

credible, the IJ must give specific, cogent reasons for the adverse credibility

determination. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006).

“Once an adverse credibility finding is made, the burden is on the applicant alien to

show that the IJ’s credibility decision was not supported by specific, cogent

reasons or was not based on substantial evidence.” Forgue, 401 F.3d at 1287

(quotation marks omitted).

       Asylum applications filed after May 11, 2005 – such as Kann Vegas’s,

which was filed in July 2006 – are governed by the REAL ID Act regarding

credibility determinations.4 Under the REAL ID Act, in making a credibility

determination, the IJ must consider the “totality of the circumstances,” and may

deny an asylum claim based on inconsistencies and falsehoods contained in the

evidence without regard to whether they go to the heart of the claim. 8 U.S.C. §

1158(b)(1)(B)(iii); Chen, 463 F.3d at 1231.


       3
        Kann Vegas also argues that the IJ erred by failing to make a clean adverse credibility
determination. This argument lacks merit because the IJ’s statement, “I find that [Kann Vegas]
was neither credible nor plausible in his testimony surrounding the circumstances that caused
[Kann Vegas] and his spouse to flee Venezuela,” constitutes a clean adverse credibility
determination. Cf. Yang, 418 F.3d at 1201.
       4
         The REAL ID Act of 2005 amended 8 U.S.C. § 1158. See Pub. L. No. 109-13, §
101(a)(3), 119 Stat. 231, 303 (2005). The amendments to § 1158(b) took effect on May 11,
2005, the date of enactment, and apply to applications of asylum and withholding of removal
filed after that date. See id. § 101(h)(2), 119 Stat. at 305; Chen, 463 F.3d at 1231 (determining
that the provisions of the REAL ID Act pertaining to credibility determinations apply to asylum
applications filed after May 11, 2005).
                                                   5
C.    Kann Vegas’s Asylum Claims

      After review and oral argument, we conclude that the IJ’s adverse credibility

determination was not supported by substantial evidence. The IJ observed that

Kann Vegas’s testimony was “general, meager, vague, and lacking in any

meaningful detail.” However, the record shows that Kann Vegas gave

overwhelmingly detailed testimony about each of the incidents described in his

asylum application. Moreover, the IJ did not find any inconsistencies between

Kann Vegas’s asylum application and his hearing testimony. We recount examples

of what Kann Vegas’s application and his testimony together showed about his

political acts and the incidents of persecution he alleges.

      Kann Vegas avers that if returned to Venezuela, he fears he would be subject

to mistreatment by members of a group called the Circulos Bolivarianos

(“Bolivarian Circles”) on account of his opposition to the ruling Hugo Chavez

regime. In 2002, Kann Vegas became an active member of Primero Justicia (“First

Justice”), a political party that opposed the Chavez regime. In 2004, Kann Vegas

was appointed to serve as First Justice’s Manager of Electoral Affairs for the

Libertador municipality of Caracas, Venezuela. As Manager of Electoral Affairs,

Kann Vegas visited poor neighborhoods in Caracas and encouraged people to vote

against Chavez in the August 15, 2004 presidential referendum. Kann Vegas also

participated in political demonstrations in Caracas expressing opposition to the
                                           6
Chavez regime. During some of these demonstrations, Kann Vegas was attacked

by members of the Bolivarian Circles, who beat and pistol-whipped him. He also

received phone calls at his home, office, and on his cell phone, threatening to harm

him if he continued to oppose Chavez. Although the callers did not identify

themselves, Kann Vegas believed they were members of the Bolivarian Circles.

      In April 2005, Kann Vegas was abducted from his car by members of the

Bolivarian Circles. Kann Vegas was driving away from the First Justice party

headquarters to pick up his wife who was staying at her mother’s house. At around

7:00 p.m., Kann Vegas had reached the “La Casas, el La Casia, Las Acasias area”

of Caracas and saw several motorcycles approach him. Kann Vegas was able to

avoid the motorcycles for about thirty seconds, but eventually one of the

motorcycles intercepted him, approaching his car from the front-left side. A

second motorcycle stopped in front of him, and a third from behind. The men on

the motorcycles were carrying rifles. They forced Kann Vegas to stop, opened the

door, and one of them hit Kann Vegas with a rifle, knocking him unconscious.

When Kann Vegas awoke he was in a room, handcuffed, blindfolded, and hanging

without a shirt. His captors beat him, electrocuted him, and doused him with water

for twelve hours, during which time he came in and out of consciousness. The

men called him names such as “little rich boy” and ordered him to stop his political

activities. They also told him that the congressmen who were “revolutionaries”
                                          7
and supported Chavez would stay in power. Kann Vegas woke up the next day in

a field near a reservoir in the “La Mariposa” area of Caracas, his shoulder and his

left side hurting. Kann Vegas was able to walk to a major road, where he found a

local resident who had a cell phone, which Kann Vegas used to call his wife. Forty

minutes later, his wife arrived and took him to the emergency room at a hospital

called “Policlinica Metropolitano,” where he was treated for his bruises and for the

electrocution. After twenty-four hours, he was released from the hospital. He did

not report the incident to the police because, when he was being held by his

captors, he heard “police lingo” in the background, and thus did not feel the police

would protect him, noting that the “Bolivarian Circles are known to do that kind of

stuff.”

          To corroborate his account of the April 2005 abduction, Kann Vegas

submitted a medical report from the hospital “Policlinica Metropolitana, Caracas,”

dated April 29, 2005. This medical report stated that Kann Vegas was admitted to

the emergency room on April 28, 2005, after being abducted and detained for

approximately twelve hours, that he had suffered multiple traumas to his head and

abdomen, that he had received multiple lacerations, and that he had been

electrocuted. Kann Vegas also submitted attestations on his behalf by two officials

of First Justice, averring that he was an active member of the organization and that

he had been attacked on several occasions by members of the Bolivarian Circles
                                           8
due to his political activities.

       In May 2005, members of the Bolivarian Circles approached First Justice’s

party headquarters and fired shots at Kann Vegas. Kann Vegas stated that he was

able to recognize that the people who shot at him were associated with the

Bolivarian Circles because he saw their motorcycles and the way that they dressed.

Kann Vegas testified that members of the Bolivarian Circles wear a colored vest

with a certain number of pockets, which differs depending on their rank. During

the incident, Kann Vegas was shot at while heading towards his car. He saw

bullets bouncing off of the ground and his car near him.

       In July 2005, members of the Bolivarian Circles shot at Kann Vegas and

threatened the life of his unborn child. This occurred as Kann Vegas was leaving a

meeting at First Justice’s party headquarters between 7:00 and 8:00 p.m. Kann

Vegas was exiting the headquarters alone, heading towards his car, which was

parked on the street because the parking lot in front of the building was full. Kann

Vegas observed that at the time he was exiting the building, about six cars were

parked in the lot. As he exited, he saw two to four motorcycles approach. Because

the motorcyclists were wearing helmets, goggles and bandanas, Kann Vegas could

not see their faces, but he identified them as members of the Bolivarian Circles by

the way they were dressed, by the motorcycles they were riding – the “Yamaha DT

type model,” which he described as a “semi-off road, semi-street bike” – and by
                                          9
the colors of the motorcycles. The men fired shots at him, and he heard the men

threaten his unborn child: “if you want to see your born, your child be born you

better stop now.” Even though he managed to escape unharmed, this incident

caused a great amount of stress to Kann Vegas and his wife, who nearly had a

miscarriage soon thereafter.

       After Kann Vegas’s abduction in April 2005, he made three trips to the

United States – entering the United States on May 6, June 23, and July 27, 2005.

After the May 6 and June 23 trips, Kann Vegas returned to Venezuela without

applying for asylum. After the July 27, 2005 trip, he stayed in the United States.

His wife then came from Venezuela to the United States on September 17, 2005.5

In July 2006, Kann Vegas and his wife applied for asylum after staying in the

United States on nonimmigrant B2 visitor visas.

       In addition to the IJ’s mischaracterization of Kann Vegas’s testimony as

vague, other shortcomings found by the IJ in Kann Vegas’s testimony are not

supported by the record. First, the IJ cited Kann Vegas’s inability to recall how

many demonstrations he attended in an average week after he returned to

Venezuela in 2002. Yet, Kann Vegas explained that there were so many

demonstrations that he was unable to give an exact number, and Kann Vegas

       5
         Kann Vegas made frequent trips to the United States throughout his life. He studied in
the United States in 1991 and returned to finish his degree from 1996 to 1998. He also made
several trips from 2001 until he last entered in 2005.
                                                  10
estimated that he attended five to ten demonstrations in 2002, thirty demonstrations

in 2003, and thirty to forty demonstrations in 2004. Second, the IJ faulted Kann

Vegas for not being able to recall the exact number of threatening phone calls he

received. But Kann Vegas testified that he received threatening phone calls on a

weekly basis, beginning in 2004 and continuing until he left Venezuela in July

2005. Third, the IJ stated that Kann Vegas’s corroborative evidence “did little to

shed light on [his] political activities.” However, attestations submitted by two

officials of First Justice indicate Kann Vegas was an active member of First

Justice, was head of Electoral Affairs, participated in numerous demonstrations,

and was attacked on several occasions by members of the Bolivarian Circles due to

his political beliefs. Finally, the IJ pointed out that Kann Vegas’s voluntary return

trips from the United States to Venezuela came after some of the incidents of

persecution he alleges. Yet, even though these trips occurred after some of Kann

Vegas’s encounters with the Bolivarian Circles, Kann Vegas stated that he decided

to leave Venezuela permanently only after he was shot at in July 2005, after which

he received phone calls from the Bolivarian Circles threatening his wife’s life and

the life of the couple’s unborn child, and that the stress resulting from this incident

caused his wife nearly to have a miscarriage. To corroborate his wife’s near

miscarriage, Kann Vegas submitted a medical report from a Venezuelan physician,

dated July 26, 2005, stating that Kann Vegas’s wife experienced contractions and
                                           11
genital bleeding during her 13th to 14th weeks of pregnancy.

       Accordingly, because the reasons given by the IJ for the adverse credibility

determination are not supported by the record, the record compels reversal of the

adverse credibility determination. See Forgue, 401 F.3d at 1287 (a credibility

determination may not be overturned unless the record compels it).

       Finally, because the IJ and BIA have not addressed whether Kann Vegas’s

testimony, if deemed credible and when considered along with the other record

evidence, establishes past persecution or a well-founded fear of future persecution,

remand as to those issues is the appropriate course.6 INS v. Orlando Ventura, 537

U.S. 12, 16, 123 S. Ct. 353 (2002) (“[A] court of appeals should remand a case to

an agency for a decision of a matter that statutes place primarily in agency

hands.”); see also Gonzales v. Thomas, 547 U.S. 183, 186, 126 S. Ct. 1613, 1615

(2006) (concluding that remand to agency was required where agency had not

considered whether membership in applicant’s family constituted a “particular

social group”); Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1266 (11th Cir. 2004)

(remanding to allow agency to determine whether applicant suffered past

persecution or well-founded fear of future persecution).

       For all of these reasons, we grant the Petition, vacate the BIA’s decision, and

       6
       Because the IJ and the BIA also did not address the merits of Kann Vegas’s claims for
withholding of removal and relief under CAT, we remand for consideration of those claims as
well.
                                              12
remand to the BIA with directions to vacate the IJ’s decision and remand for

further proceedings.7

       PETITION GRANTED, VACATED, AND REMANDED.




       7
         Although we conclude the adverse credibility determination is not supported by
substantial evidence, we do not foreclose a reconsideration of credibility on remand. See
Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1306 n.4 (11th Cir. 2009). Rather, we foreclose
only an adverse credibility decision based in whole or in part on the reasons relied upon by the
government in this appeal. See id. We also note that, notwithstanding that the IJ found that
Kann Vegas’s return trips to Venezuela were relevant to his credibility, on remand the voluntary
return trips may be considered as relevant to whether Kann Vegas had a well-founded fear of
future persecution. See De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1011 (11th Cir. 2008)
(“An asylum applicant’s voluntary return to his or her home country is a relevant consideration
in determining whether the asylum applicant has a well-founded fear of future persecution.”).
                                                13
