Isuf Bashllari v. U.S. Attorney General ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 9, 2009
No. 09-11641 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A078-355-609
ISUF BASHLLARI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 9, 2009)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Isuf Bashllari, a citizen of Albania proceeding pro se, petitions this Court for
review of the Board of Immigration Appeals’s (BIA) decision, affirming the
Immigration Judge’s (IJ) order denying him asylum, withholding of removal under
the Immigration and Nationality Act, and protection under the United Nations
Convention on Torture (CAT). On appeal, Bashllari argues that the IJ’s adverse
credibility determination was erroneous because it was based, at least in part, on an
unreliable record of his asylum interview. Bashllari also argues that IJ erred in
alternatively denying his request for relief on the basis that he failed to meet his
burden in establishing past persecution or well-founded fear of future persecution.
We review only the BIA’s decision except to the extent the BIA expressly
adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Here, the BIA issued its own opinion as to Bashllari’s credibility,
in which it addressed the IJ’s reasoning as well as included its own reasons for
upholding the adverse credibility finding. Thus, we review both the IJ and BIA’s
decisions. See Chacon Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir.
2005).
We review a credibility determination under the substantial evidence test.
Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006). Under the
substantial evidence test, we must affirm the BIA’s decision if it is “supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1284 (quotation omitted). This Court will reverse a
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finding of fact only when the record compels a reversal; the mere fact that the
record may support a contrary conclusion is not enough to justify a reversal.
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
An applicant bears the burden of establishing eligibility for asylum,
withholding of removal and CAT and his testimony, if credible, may carry his
burden of proof without corroboration. 8 C.F.R. § 208.13(a). “Indications of
reliable testimony include consistency on direct examination, consistency with the
written application, and the absence of embellishments.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1255 (11th Cir. 2006). “Conversely, an adverse credibility
determination alone may be sufficient to support the denial of an asylum
application.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
“Once an adverse credibility finding is made, the burden is on the applicant alien to
show that the [BIA]’s credibility decision was not supported by ‘specific, cogent
reasons’ or was not based on substantial evidence.” Id. An adverse credibility
determination, however, “does not alleviate the IJ’s [or BIA’s] duty to consider
other evidence produced by an asylum applicant.” Id.Bashllari argues that the IJ and BIA improperly relied on an unreliable
record of his initial interview with an asylum officer in determining that he was
incredible. However, in its decision, the BIA focused on the discrepancies
between Bashllari’s written statement, which he titled his “attestation,” and his
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asylum application. According to his asylum application, Bashllari left Albania
purely because of limited economic opportunities and did not indicate that he had
suffered or feared suffering persecution in Albania. Several years later and just
prior to his hearing in the immigration court, he submitted his attestation which
stated that he was threatened and shot at because of his knowledge of local
government officials’ involvement in weapons trafficking.
Bashllari has not explained the disparities between his asylum application,
attestation, and testimony at his immigration court hearing sufficient to overcome
the IJ’s and BIA’s adverse credibility findings. Bashllari’s explanation that he did
not know what information was presented in his asylum application because a
friend filled it out for him does not compel this Court to reverse the BIA’s
credibility finding. Bashllari had the opportunity to explain the inaccuracies in his
written application when he was interviewed by an asylum officer, but did not do
so. Rather, according to his testimony at his immigration court hearing, Bashllari
told the asylum officer that he came to the United States to work and did not want
to go back to Albania. Moreover, Bashllari presented no corroborating evidence
that would compel reversal of the adverse credibility finding. While Bashllari
submitted statements from his neighbors and several articles and reports, none of
the documents detailed the abuse that he allegedly suffered.
Given the stark differences between Bashllari’s written asylum application
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and his statements to the asylum officer from his attestation and immigration court
testimony, we conclude that the record does not compel a reversal of the BIA’s
adverse credibility finding where he has not sufficiently explained these
discrepancies.
Bashllari also argues that the IJ erred in her alternative finding that he had
not met his burden in showing past persecution or a well-founded fear of future
persecution. Although Bashllari properly raised these issues before the BIA, the
BIA did not address the merits of these claims and instead concluded that Bashllari
failed to carry his burden of proof as to asylum and withholding of removal based
solely on its adverse credibility determination. Because an adverse credibility
determination alone can be sufficient to support the denial of asylum and
withholding of removal where the applicant has not presented any corroborating
evidence that overcomes that finding, see Forgue,401 F.3d at 1287, we need not
address Bashllari’s arguments regarding past persecution or well-founded fear of
future persecution. His claim for CAT protection is likewise denied because he has
not presented any evidence of torture or fear of torture that is different from his
claims of persecution.
PETITION DENIED.
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