Helal Mohammad v. U.S. Attorney General

USCA11 Case: 20-14488 Date Filed: 01/14/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14488
Non-Argument Calendar
____________________
HELAL MOHAMMAD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A203-653-973
____________________
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2 Opinion of the Court 20-14488
Before WILSON, JORDAN, and BLACK, Circuit Judges.
PER CURIAM:
Helal Mohammad, a native and citizen of Bangladesh, seeks
review of the Board of Immigration Appeals’ (BIA) final order af-
firming the immigration judge’s (IJ) denial of his application for
asylum, withholding of removal, and relief under the United Na-
tions Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT). After review, 1 we
deny the petition.
I. ASYLUM AND WITHHOLDING OF REMOVAL
As to his asylum and withholding of removal claims, Mo-
hammad asserts the IJ clearly erred in finding he was only partially
credible. He contends he showed past persecution and an objec-
tively reasonable fear of future persecution. Mohammad also
1 We review the IJ’s opinion to the extent the BIA has found the IJ’s reasons
were supported by the record and review the BIA’s decision with regard to
those matters on which it rendered its own opinion and reasoning. Seck v.
U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We review conclusions
of law de novo and factual determinations under the substantial evidence test.
Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Under the
highly deferential 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.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27
(11th Cir. 2004) (en banc) (quotation marks omitted).
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20-14488 Opinion of the Court 3
asserts the IJ erred in concluding it was reasonable for him to relo-
cate within Bangladesh.
A. Credibility
“The asylum applicant must establish eligibility for asylum
by offering credible, direct, and specific evidence in the record.”
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (quo-
tation marks omitted). If found to be credible, an applicant’s testi-
mony may be sufficient on its own to establish the burden of proof
for asylum or withholding of removal. D-Muhumed v. U.S. Att’y
Gen., 388 F.3d 814, 818–19 (11th Cir. 2004). However, even if an IJ
makes an adverse credibility finding, the IJ has a duty to consider
other evidence produced by an asylum applicant. Forgue, 401 F.3d
at 1287. A credibility determination may be based on the totality
of the circumstances, including: (1) the demeanor, candor, and re-
sponsiveness of the applicant; (2) the plausibility of the applicant’s
account; (3) the consistency between the applicant’s written and
oral statements; (4) the internal consistency of each statement;
(5) the consistency of the applicant’s statements with other record
evidence, including country reports; and (6) any inaccuracies or
falsehoods in such statements, without regard to whether an incon-
sistency, inaccuracy, or falsehood goes to the heart of the appli-
cant’s claim, or any other relevant factor. 8 U.S.C.
§ 1158(b)(1)(B)(iii).
The IJ specifically found implausible and not credible Mo-
hammad’s testimony that his low-level involvement in the Liberal
Democratic Party (LDP) would escalate from being twice beaten
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4 Opinion of the Court 20-14488
for his affiliation with the party to being threatened with decapita-
tion after leaving Bangladesh, which was not supported by the
country condition documents. Substantial evidence supports the
finding Mohammad was not credible with respect to the threat of
beheading. The IJ provided “specific, cogent” reasons in finding
Mohammad’s testimony about the threat was not credible, namely
that it was not plausible the threats against Mohammad, a low-level
LDP member, would escalate from minor beatings to decapitation.
See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006)
(stating the IJ must offer “specific, cogent” reasons for an adverse
credibility finding). Moreover, the IJ found Mohammad’s corrob-
orative evidence was not reliable, and substantial evidence sup-
ports this finding. Mohammad testified he was a “general worker”
for the LDP that attended rallies and meetings, helped set up chairs
and tables, and make announcements. While Mohammad in-
cluded a handwritten supplement to his affidavit and his mother’s
supplemental affidavit that detailed the threats of beheading made
to his mother, he testified the Awami League members had not
threatened him since he left Bangladesh and that, while they con-
tinued to come to his mother’s house, they had “scolded” her.
When asked by the IJ why the Awami League members would es-
calate from beatings to beheading, he testified there was a “chance”
they would do so because they had threatened him before. Thus,
viewing the evidence in the light most favorable to the IJ’s finding
and drawing all reasonable inferences in favor of that finding, the
record does not compel reversal of the findings that Mohammad’s
account was not plausible in light of his role as a low-level member
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20-14488 Opinion of the Court 5
in the LDP, his corroborative evidence was not reliable, and his de-
meanor was unsure and nervous, and therefore, he was only par-
tially credible. 8 U.S.C. § 1158(b)(1)(B)(iii); Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004) (en banc) (stating we view the
evidence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision); Kueviakoe
v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009) (explaining
under the substantial evidence test, a decision “can be reversed
only if the evidence ‘compels’ a reasonable fact finder to find oth-
erwise” (quotation marks omitted)).
B. Persecution
The Attorney General may grant asylum to an alien who
meets the definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A
refugee is defined as—
any person who is outside any country of such per-
son’s nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail him-
self or herself of the protection of, that country be-
cause of persecution or a well-founded fear of perse-
cution on account of race, religion, nationality, mem-
bership in a particular social group, or political opin-
ion.
8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of prov-
ing that he is a refugee. 8 U.S.C. § 1158(b)(1)(B)(i). The applicant
must demonstrate he (1) was persecuted in the past on account of
a protected ground or (2) has a well-founded fear he will be
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6 Opinion of the Court 20-14488
persecuted in the future on account of a protected ground. Ruiz v.
U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). To establish
a well-founded fear of future persecution, the applicant must show
a reasonable possibility he will be singled out for persecution on
account of a protected ground and his fear is both “subjectively
genuine and objectively reasonable.” Kazemzadeh v. U.S. Att’y
Gen., 577 F.3d 1341, 1352 (11th Cir. 2009) (quotation marks omit-
ted). However, an applicant does not have a well-founded fear of
future persecution if he could “avoid persecution by relocating to
another part of the applicant’s [home] country,” where such relo-
cation is reasonable. 8 C.F.R. § 1208.13(b)(2)(ii); see also Arboleda
v. U.S. Att’y Gen., 434 F.3d 1220, 1223 (11th Cir. 2006) (noting we
have upheld the “country-wide” requirement). Where an appli-
cant has not established past persecution, the burden is on the ap-
plicant to show he could not avoid persecution by relocating in his
home country. 8 C.F.R. § 1208.13(b)(3)(i).
Persecution is an “extreme concept” that requires more than
mere harassment or “a few isolated incidents of verbal harassment
or intimidation.” Kazemzadeh, 577 F.3d at 1353 (quotation marks
omitted). We have found that minor physical abuse and brief de-
tentions do not amount to persecution. Id. Serious physical injury
is not required to prove past persecution where the petitioner
demonstrates repeated threats combined with other forms of seri-
ous mistreatment. De Santamaria v. U.S. Att’y Gen., 525 F.3d 999,
1009 (11th Cir. 2008). Yet a minor beating, even when viewed in
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20-14488 Opinion of the Court 7
conjunction with threats, does not compel a finding of persecution.
Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008).
In Kazemzadeh, we held the record did not compel a finding
the petitioner was persecuted when he testified he was arrested,
interrogated, and beaten for five hours, and detained for four days
but did not prove he suffered any physical harm. Kazemzadeh,
577 F.3d at 1353. In Djonda, we held the petitioner did not estab-
lish past persecution when he was detained at a police station for
36 hours, forced to disrobe, beaten with a belt, and kicked, threat-
ened that he “was going to rot in jail” if arrested again, suffered
multiple scratches to his neck and knees and multiple muscle
bruises, and received medical treatment requiring 2 weeks of rest
and several medical prescriptions. Djonda, 514 F.3d at 1171, 1174(quotation marks omitted). By contrast, in De Santamaria, we held
the petitioner suffered past persecution when her life was repeat-
edly threatened by members of a paramilitary organization over
two years; she was yanked by the hair out of her vehicle and spe-
cifically threatened with death; her family groundskeeper was tor-
tured and killed for not revealing her whereabouts; and she was
ultimately beaten, kidnapped, and warned of her imminent mur-
der. De Santamaria, 525 F.3d at 1009. In Diallo, we held that, while
the petitioner’s minor beating and detention for 11 hours, by itself,
would not compel reversal, he established past persecution when
he was also threatened with death by the same soldiers who had
already killed his brother. Diallo v. U.S. Att’y Gen., 596 F.3d 1329,
1333 (11th Cir. 2010).
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8 Opinion of the Court 20-14488
Substantial evidence supports the BIA’s findings that Mo-
hammad failed to demonstrate past persecution. First, substantial
evidence supports the findings of the BIA and IJ that the harm Mo-
hammad suffered did not rise to the level of past persecution. Mo-
hammad testified he had been beaten twice by several men, result-
ing in cuts and bruises that were treated by a doctor with bandages
and medication, as indicated by the doctors’ letters, and that, on
both occasions, he was released the same day. Yet, this Court has
found a similar beating, accompanied with threats, that required
comparable medical attention did not constitute past persecution.
See Djonda, 514 F.3d at 1174. Thus, the record does not compel
the reversal of the findings of the IJ and BIA that the beatings were
not sufficiently severe to satisfy the “extreme concept” of past per-
secution. Kazemzadeh, 577 F.3d at 1353; Kueviakoe, 567 F.3d at
1304.
Moreover, substantial evidence supports the findings of the
IJ and BIA that Mohammad did not establish a well-founded fear of
future persecution because it was not objectively reasonable. The
BIA and IJ found Mohammad’s fear as a low-level LDP member
was not objectively reasonable, in light of the country conditions,
and that he had not shown he would be singled out for persecution,
as there was no objective evidence the Awami League members
were actively seeking to harm him. The State Department’s Hu-
man Rights Report provided by Mohammad made no mention of
the Awami League’s treatment of the LDP. And Mohammad tes-
tified the Awami League members did not harm or threaten him
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20-14488 Opinion of the Court 9
after he left the village and then left for the United States. Thus,
the Human Rights Report did not show that Mohammad, as a low-
level LDP member, would be singled out for persecution, and Mo-
hammad failed to provide credible evidence the men who attacked
him were still looking for him. Viewing the evidence in the light
most favorable to the IJ’s finding and drawing all reasonable infer-
ences in the agency’s favor, the record does not compel reversal of
the finding that Mohammad’s well-founded fear of future persecu-
tion was not objectively reasonable.
Further, substantial evidence supports the finding of the BIA
and IJ that Mohammad could reasonably relocate in Bangladesh.
Mohammad testified the attacks occurred within his village and
that, when he was in hiding outside the village, he was not harmed
or threatened. And Mohammad provided no evidence the Awami
League members from his village would be able to harm him else-
where in Bangladesh. Thus, viewing the evidence in the light most
favorable to the IJ’s finding and drawing all reasonable inferences
in the agency’s favor, the record does not compel reversal of the
IJ’s finding that Mohammad did not demonstrate he could not rea-
sonably relocate within Bangladesh.
Accordingly, substantial evidence supports the finding that
Mohammad did not experience past persecution and did not have
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10 Opinion of the Court 20-14488
a well-founded fear of future persecution and, thus, was not eligible
for asylum or withholding of removal.2
II. CAT RELIEF
As to CAT relief, Mohammad contends the record showed
it was more likely than not that he would be tortured if returned
to Bangladesh. An applicant seeking protection under CAT must
establish it is more likely than not he would be tortured if removed
to the proposed country of removal. Reyes-Sanchez v. U.S. Att’y
Gen., 369 F.3d 1239, 1242 (11th Cir. 2004). Additionally, the indi-
vidual must show the torture would be by or with the acquiescence
of the government. Id. “Torture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel, in-
human or degrading treatment or punishment that do not amount
to torture.” 8 C.F.R. § 208.18(a)(2). “[T]o constitute torture, an act
must be specifically intended to inflict severe physical or mental
pain or suffering.” Id. § 208.18(a)(5).
Substantial evidence supports the BIA’s finding that Mo-
hammad failed to establish it was more likely than not he would be
subjected to torture if removed to Bangladesh. The BIA and the IJ
2 To qualify for withholding of removal, an individual must show that, if re-
turned to his country, his life or freedom would be threatened on account of
race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1231(b)(3). If a petitioner is unable to meet the standard
of proof for asylum, he cannot meet the more stringent standard for withhold-
ing of removal. D-Muhumed., 388 F.3d at 819.
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20-14488 Opinion of the Court 11
found no evidence of past torture. Though Mohammad testified
he was twice beaten, resulting in cuts and bruises that were treated
by bandages and medication, he was able to leave his doctors’ care
the same day. Thus, viewing the evidence in the light most favor-
able to the IJ’s finding and drawing all reasonable inferences in fa-
vor of that finding, the record supports the IJ’s finding Mohammad
was not subjected to an extreme form of cruel and inhuman treat-
ment to constitute past torture. Moreover, Mohammad testified
the attacks occurred within his village and that, when he was in
hiding outside the village, he was not harmed or threatened. Thus,
the record does not compel reversing the finding of the IJ and BIA
that Mohammad failed to establish anyone was seeking to harm
him after he left the village. Plus, as discussed above, the record
supported the finding that Mohammad could relocate within Bang-
ladesh to avoid being harmed and the country conditions report
did not mention the mistreatment of LDP members in Bangladesh.
8 C.F.R. § 208.16(c)(3)(ii).
Accordingly, we deny Mohammad’s petition for review.
PETITION DENIED.