Shamil Guseynovich Gaziev v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13297
Non-Argument Calendar
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Agency No. A200-859-130
SHAMIL GUSEYNOVICH GAZIEV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 8, 2014)
Before MARCUS, JORDAN and KRAVTICH, Circuit Judges.
PER CURIAM:
Shamil Guseynovich Gaziev, a Russian citizen of Avar ethnicity, seeks
review of the Board of Immigration Appeals’s (“BIA”) order denying his
application for asylum and withholding of removal under the Immigration and
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Nationality Act (“INA”), and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(“CAT”). The BIA concluded that Gaziev waived his CAT claim, and rejected his
claim for asylum and withholding of removal, accepting the Immigration Judge’s
(“IJ”) adverse credibility finding and determining that Gaziev failed to show
persecution on account of a protected ground. On appeal, Gaziev argues that: (1)
the adverse credibility determination was erroneous; (2) the IJ and BIA made
errors concerning his documentary evidence; (3) he was entitled to asylum and
withholding of removal; and (4) he was entitled to CAT relief. After careful
review, we deny the petition in part, and dismiss it in part.
We review the BIA’s decision, unless the BIA has expressly adopted the IJ’s
decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). Here, the BIA
accepted and relied on parts of the IJ’s decision and reasoning; we review those
parts of the IJ’s decision in addition to reviewing the BIA’s decision in full.
We review the BIA and IJ’s legal determinations de novo. D Muhumed v.
U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). We review the BIA and IJ’s
fact determinations, including credibility determinations, for substantial evidence,
which means we will affirm if the decision is supported by reasonable, substantial,
and probative evidence on the record considered as a whole. Id. at 817-18. We
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will reverse only if the evidence compels a reasonable fact-finder to find otherwise.
Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009).
First, we are unpersuaded by Gaziev’s claim that the IJ and BIA erred in
making an adverse credibility determination. Under the REAL ID Act of 2005,
credibility determinations are based upon the totality of the circumstances,
including: (1) the demeanor, candor, and responsiveness 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 inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim. See 8 U.S.C. § 1158(b)(1)(B)(iii); Chen v. U.S. Att’y Gen.,
463 F.3d 1228, 1233 (11th Cir. 2006). The BIA must offer specific, cogent
reasons for an adverse credibility determination, and the applicant bears the burden
of proving that the determination was not supported by specific, cogent reasons, or
was not based upon substantial evidence. Chen, 463 F.3d at 1231. A petitioner’s
tenable explanations of the implausibility of his claim do not necessarily compel a
reasonable fact finder to reverse the credibility determination. Id. at 1233.
Here, substantial evidence supports the adverse credibility determination.
As the record shows, Gaziev presented conflicting accounts of a particular
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incident, indicating in his asylum application that he and two other individuals
were arrested, indicating in his asylum interview that he and three other individuals
were arrested, and indicating at his hearing that he and two other individuals were
arrested. He was questioned about the inconsistencies, and each time, asserted that
whatever he had said previously was incorrect and that his current statement was
the correct account of the event. Furthermore, he provided conflicting
explanations for the inconsistencies -- first that his statement in his asylum
application was a mistake in translation, and later that his statement at the asylum
interview was an error. Finally, although it is not necessary that the
inconsistencies go to the “heart of the claim,” in this case, they do relate to one of
the more significant incidents alleged by Gaziev. Thus, based on the
inconsistencies in his different accounts, and his failure to provide a reasonable
explanation for these discrepancies, substantial evidence supports the adverse
credibility determination. We deny Gaziev’s petition in this respect.
We also reject Gaziev’s claim that he was not given an opportunity to
address missing documentation, and that the BIA erred in discounting his
corroborating documents. It is well settled that an asylum applicant has the burden
of proving the “refugee” status that entitles him to be considered for asylum.
Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290 (11th Cir. 2006); 8 C.F.R. §
208.13(a). An adverse credibility determination may be sufficient to deny relief
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where there is no other evidence of persecution. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1287 (11th Cir. 2005). However, even if an IJ finds an applicant not
credible, he must consider all evidence introduced by the applicant. Id. Generally,
“[t]he weaker an applicant’s testimony . . . the greater the need for corroborative
evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).
In this case, Gaziev’s claim that he was not given the opportunity to address
potentially missing documents is not supported by the record because the IJ
discussed the lack of supporting documents, on the record and at length, noting
specific issues related to Gaziev’s submission of documents. Plus, Gaziev
misconstrues the BIA’s decision when he says that the BIA discounted medical
documents and statements from law enforcement because they did not contain
information about why Gaziev was beaten. Rather, the record shows that the BIA
merely concluded that these documents could not be used to show that Gaziev was
beaten due to his ethnicity. Gaziev had the burden to establish persecution based
on his ethnicity, whether through the documents in question or through other
evidence, and he failed to do so. We also deny Gaziev’s petition in this respect.
Next, we are unconvinced by Gaziev’s claim that he demonstrated a well-
founded fear of persecution. To establish eligibility for asylum relief, the alien
must, with specific and credible evidence, establish (1) past persecution on account
of a statutorily listed factor, or (2) a well-founded fear that the statutorily listed
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factor will cause future persecution. 8 C.F.R. § 208.13(b). The applicant must
demonstrate that one of the enumerated grounds “was or will be at least one central
reason for persecuting” him or her. 8 U.S.C. § 1158(b)(1)(B)(i); see also
Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007) (holding
that the applicant must establish a sufficient nexus between her political opinion or
other protected ground and her alleged persecution). Persecution is an extreme
concept that requires more than a few isolated incidents of verbal harassment or
intimidation. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005);
see Ruiz, 440 F.3d at 1259 (indicating that a claim of well-founded fear of future
persecution may be undermined when the alien has family living in the country
without harm). An alien who fails to establish a well-founded fear of future
persecution necessarily fails to establish eligibility for withholding of removal.
Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009).
Substantial evidence in this record supports the determination that Gaziev
was not eligible for asylum and withholding of removal because he did not show a
well-founded fear of future persecution. As we’ve discussed above, the IJ and BIA
did not err in making an adverse credibility determination. Moreover, a 2010
Human Rights Report reported discrimination and some violence toward persons
from Caucasus, but did not indicate that it rose to the level of persecution.
Furthermore, another report indicated that Gaziev’s ethnic group -- Avar -- was a
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politically and economically powerful group that maintained certain advantages, an
assessment that undermined Gaziev’s contention that he had a well-founded fear of
future persecution based on his Avar ethnicity. As for Gaziev’s conclusory
statement that his parents “were abused” in Russia, he did not provide evidence
that they were persecuted or that they suffered harm. Indeed, the fact that his
parents and siblings continued to live in Russia, and remained unharmed,
undermined Gaziev’s contention that he had a well-founded fear of future
persecution. Thus, substantial evidence supports the determination that Gaziev
failed to show a well-founded fear of future persecution, and he was not entitled to
asylum or withholding of removal. We deny his petition in this respect.
Finally, we reject his claim for CAT relief. An applicant for withholding of
removal under CAT must establish “that it is more likely than not that he or she
would be tortured if removed to the proposed country of removal.” Sanchez
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1239 (11th Cir. 2007) (quoting 8
C.F.R. § 208.16(c)(2)). We do not have jurisdiction to consider a claim that was
not raised before the BIA. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1250 (11th Cir. 2006). Passing references to issues in a petitioner’s brief to
the BIA are insufficient to raise a claim for appeal. Lapaix v. Att’y Gen., 605 F.3d
1138, 1145 (11th Cir. 2010).
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Gaziev failed to raise the issue of CAT relief in his appeal to the BIA, and
therefore, we will not consider his claim. We dismiss the petition in this respect.
PETITION DENIED IN PART, DISMISSED IN PART.
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