Gentjan Themeli v. U.S. Attorney General , 181 F. App'x 965 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 31, 2006
No. 05-16448 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-001-476
GENTJAN THEMELI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 31, 2006)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner Gentjan Themeli, a native citizen of Albania, seeks review of the
Board of Immigration Appeals’ (“BIA”) decision affirming the immigration
judge’s (“IJ”) order denying asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231, and the
Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). On appeal, Themeli
argues that the BIA’s and IJ’s findings with regard to his applications for asylum,
withholding of removal, and CAT relief were not supported by substantial
evidence. We will review each form of relief sought in turn.
I. Asylum
Concerning his asylum application, Themeli argues that he had
demonstrated a well-founded fear of persecution. Themeli further challenges the
IJ’s adverse credibility determination, asserting that his statements in the asylum
officer’s summary of his credible fear interview are not inconsistent with his
testimony from his hearing. Themeli contends that the credible fear interview
lasted a short time and only a summary of his problems was discussed. Themeli
maintains that, based on the record and Professor Bernd Fischer’s testimony, he
established that he holds political views contrary to those of the Socialist Party, the
Socialist Party has engaged in violence toward political figures, and that he was
detained and beaten several times “by the secret police and at the order of a
government prosecutor.” Themeli also argues that the IJ erred in finding that
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Themeli’s true identity was questionable based only on the existence of two
passports with different dates of birth.
When the BIA issues a decision, we review only that decision, except to the
extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Id. Here, the BIA affirmed the IJ’s findings,
adopted the IJ’s reasoning, and briefly articulated its reasons for doing so. Thus,
we review the decisions of both the IJ and the BIA.
To the extent that the IJ’s and the BIA’s decisions were based on legal
determinations, our review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d
814, 817 (11th Cir. 2004). The IJ’s and BIA’s factual determinations are reviewed
under the substantial evidence test, and 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 1283-84 (quotation omitted).
Therefore, a finding of fact will be reversed “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), cert. denied, 125 S. Ct. 2245 (2005); see also 8 U.S.C.
§ 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any
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reasonable adjudicator would be compelled to conclude to the contrary . . . .”).
Likewise, a credibility determination is reviewed under the substantial evidence
test, and “this court may not substitute [its] judgment for that of the BIA with
respect to credibility findings.” D-Muhumed, 388 F.3d at 818.
To establish eligibility for asylum, an applicant has the burden of proving
that he is a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is defined as:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion
8 U.S.C. § 1101(a)(42)(A).
To establish asylum eligibility through a well-founded fear, an applicant
must prove that his statutorily protected status will cause harm or suffering that
rises to the level of persecution. Forgue v. U.S. Att’y Gen., 401 F.3d 1202, 1286
(citations omitted). “In order to demonstrate a sufficient connection between
future persecution and the protected activity, an alien is required ‘to present
specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution on account’ of such a protected activity.” Id. (citation omitted).
“Establishing a history of past persecution creates a presumption that an alien has a
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well-founded fear of future persecution, although that presumption can be rebutted
by the government.” Id. (citation omitted); see also 8 C.F.R. § 208.13(b)(1).
“The testimony of an applicant, if found to be credible, is alone sufficient to
establish” eligibility for asylum.1 Id. at 1287. Indications of reliable testimony
include consistency on direct examination, consistency with the written
application, and the absence of embellishment as the applicant repeatedly recounts
his story. See In re B-, 21 I&N Dec. 66, 70 (BIA 1995); see also Dalide v. U.S.
Att’y Gen., 387 F.3d 1335, 1343 (11th Cir. 2004) (affirming the BIA’s adverse
credibility determination, which was based upon its finding that the applicant’s
testimony conflicted with his answers to interrogatories, affidavit, deposition, and
other documentary evidence). Although uncorroborated but credible testimony
may be sufficient to sustain an applicant’s burden of proving eligibility for asylum,
“[t]he weaker an applicant’s testimony, however, the greater the need for
corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005).
However, the IJ must provide “specific, cogent reasons” for her credibility
1
The REAL ID Act of 2005 amended the law regarding credibility determinations by adding
INA §§ 208(b)(3)(B)(iii) , 1229a(c)(4)(C). Section 101(a)(3) and (d), Pub. L. No. 109-13, 119 Stat.
231, 303, 304-305. The Act states, however, that these provisions “shall apply to applications for
asylum, withholding, or other relief from removal made on or after” the date of enactment of the act,
May 11, 2005. Pub. L. No. 109-13, 119 Stat. at 305. Therefore, because Themeli’s application for
asylum was filed before May 11, 2005, these provisions do not apply in this case.
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finding. Forgue, 401 F.3d at 1287. The Third and Ninth Circuits have
persuasively held that “minor inconsistencies and minor admissions that reveal
nothing about an asylum applicant’s fear for his safety are not an adequate basis for
an adverse credibility finding.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)
(internal quotation omitted); see also Chebchoub v. INS, 257 F.3d 1038, 1043 (9th
Cir. 2001). Further, “an adverse credibility determination does not alleviate the
IJ’s duty to consider other evidence produced by an asylum applicant.” Forgue,
401 F.3d at 1287. Nevertheless, when the IJ notes an applicant’s inconsistencies
and provides specific cogent reasons which are supported by the record, “we will
not substitute our judgment for that of the IJ with respect to its credibility
findings.” D-Muhumed, 388 F.3d at 819.
Based on the numerous testimonial and documentary inconsistencies in the
record, and given the fact that Themeli failed to address most of them in his
appellate brief, the IJ’s finding that Themeli was not credible is supported by
substantial evidence. Because the IJ’s credibility finding is supported by
substantial evidence, the record does not retain enough, if any, credible claims that
could support Themeli’s application for asylum. Moreover, even if some of the
record evidence weighs in Themeli’s favor, a review of the entire record, including
Themeli’s weak and inconsistent testimony, certainly does not compel reversal.
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See Adefemi, 385 F.3d at 1027 (“the mere fact that the record may support a
contrary conclusion is not enough to justify a reversal . . .”). As such, the IJ’s
determination that Themeli did not establish his eligibility for asylum is also
supported by substantial evidence.
II. Withholding of Removal
Themeli argues that, for the reasons he stated with regard to his eligibility
for asylum, he is likewise eligible for withholding of removal. Themeli further
contends that he clearly established that his life was in danger in Albania and that it
is more likely than not that he would be targeted by the socialists upon return to
Albania. Themeli also maintains that, as a political activist, he would “stand out in
the crowd” if he returned to Albania.
To establish eligibility for withholding of removal, the applicant must meet a
standard more stringent than the “well-founded fear” asylum standard, and “show
that h[is] life or freedom would ‘more likely than not’ be threatened upon return to
his country because of, among other things, his political opinion.” Huang v. U.S.
Att’y Gen., 429 F.3d 1002, 1010-11 (11th Cir. 2005) (quoting INA § 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A). Thus, an applicant who is unable to meet the standard
for asylum is also unable to meet the more stringent standard for withholding of
removal. Huang, 429 F.3d at 1011.
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Because we conclude from the record that Themeli failed to meet the asylum
standard, his claim for withholding of removal must fail as well. Thus, we hold
that BIA’s and IJ’s denial of withholding of removal was supported by substantial
evidence.
III. CAT Relief
Themeli argues on appeal that he is entitled to CAT relief because he
suffered torture and beatings from the prosecutor’s guards, who Themeli concludes
are government officials or, at least, persons acting on behalf of government
officials. Themeli asserts that, if returned to Albania, he would more likely than
not be tortured.
An alien is entitled to withholding of removal under the CAT if he
establishes that it is “more likely than not that he or she will be tortured if removed
. . . .” 8 C.F.R. § 208.16(c)(2); see also Cadet v. Bulger, 377 F.3d 1173, 1180
(11th Cir.2004). “Torture” is “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person . . . by or at the instigation
of . . . a public official or other person acting in an official capacity.” 8 C.F.R.
§ 208.18(a)(1); see also D-Muhumed, 388 F.3d at 819-20. “Torture is an extreme
form of cruel and inhuman treatment and does not include lesser forms of cruel,
inhuman or degrading treatment or punishment that do not amount to torture.” 8
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C.F.R. § 208.18(a)(2).
As explained above, the IJ’s determination, that Themeli and his various
accounts concerning the threats and beatings that he sustained in Albania are not
credible, is supported by substantial evidence. Moreover, Themeli does not point
to any other treatment that he received that was found credible and could amount to
“torture” as defined in the regulations. Therefore, the BIA’s and IJ’s findings with
regard to CAT relief are supported by substantial evidence.
For the above-stated reasons, we deny Themeli’s petition for review.
PETITION DENIED.
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