Sadriddin Aslievich Nasriev v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12727
Non-Argument Calendar
________________________
Agency No. A087-375-673
SADRIDDIN ASLIEVICH NASRIEV,
NODIRA AHRORKULOVNA BARATOVA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 7, 2014)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Sadriddin Aslievich Nasriev and Nodira Ahrorkulovna Baratova, a husband
and wife who are citizens of Uzbekistan, petition for review of the final order of
the Board of Immigration Appeals (“BIA”) adopting and affirming the
Immigration Judge’s (“IJ’s”) denial of their applications for withholding of
removal and relief under the United Nations Convention Against Torture (“CAT”).
On appeal, Nasriev and Baratova argue that the IJ erred in making an adverse
credibility determination based on Nasriev’s lack of detailed knowledge of his
Baptist faith, inconsistencies between Petitioners’ written applications and their
testimony, and omissions in Nasriev’s application for withholding of removal and
CAT relief. They also argue that there is a pattern or practice of religious
persecution in Uzbekistan and that as Baptists, they would more likely than not be
arrested and tortured by Uzbek authorities if forced to return to Uzbekistan. As
substantial evidence supports the IJ’s and the BIA’s findings, we deny the petition.
I.
When the BIA issues a decision, we review only that decision except to the
extent that 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 expressly adopted the
IJ’s decision and briefly articulated its reasons for doing so. Thus, we review the
decisions of both the IJ and the BIA.
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We review the factual determination that an alien is ineligible for
withholding of removal and CAT relief under the highly deferential substantial
evidence test, and we will affirm the BIA’s decision “if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. at 1283–84 (internal quotation marks omitted).
Under the substantial evidence test, we view the record evidence in
the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision. . . . In sum, findings of
fact made by administrative agencies, such as the BIA, may be
reversed by this court 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 of the administrative findings.
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). We review
legal determinations de novo, Delgado v. U.S. Att’y Gen., 487 F.3d 855, 860 (11th
Cir. 2007), but we review factual findings, including credibility determinations,
under the substantial evidence test. Todorovic v. U.S. Att’y Gen., 621 F.3d 1318,
1323 (11th Cir. 2010).
An applicant’s testimony, if credible, may be sufficient to sustain his burden
of proof in establishing eligibility for relief from removal without corroborating
evidence. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).
Conversely, if the applicant relies solely on his testimony, an adverse credibility
determination may alone be sufficient to support the denial of his application. Id.If the applicant produces evidence other than his testimony, the IJ must consider
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that evidence and cannot rely solely on an adverse credibility determination. Id.The weaker the applicant’s testimony, the greater the need for corroborating
evidence. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).
When making credibility determinations, the IJ must consider the totality of
the circumstances, including the witness’s demeanor, candor, and responsiveness,
the inherent plausibility of the account, the consistency among and within all oral
and written statements and other evidence of record, and any inaccuracies and
falsehoods in the statements. 8 U.S.C. §§ 1231(b)(3)(C), 1158(b)(1)(B)(iii);
Todorovic, 621 F.3d at 1324. These determinations are made “without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Kueviakoe v. U.S. Att’y Gen.,
567 F.3d 1301, 1305 (11th Cir. 2009).
The IJ must offer specific, cogent reasons for an adverse credibility
determination. Ruiz, 440 F.3d at 1255. Once such a determination is made, the
burden is on the applicant to show that the IJ’s credibility finding was not
supported by specific, cogent reasons or was not based on substantial evidence. Id.Even where a petitioner offers tenable explanations for the implausibilities in his
claim, we will not reverse an adverse credibility determination unless those
explanations would compel a reasonable fact finder to reverse. See Chen v. U.S.
Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006).
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II.
An alien is entitled to withholding of removal if he can show that if
removed, his life or freedom would be threatened in the country of removal
because of his race, religion, nationality, membership in a particular social group,
or political opinion. 8 U.S.C. § 1231(b)(3)(A); Delgado, 487 F.3d at 860–61. The
burden of proving eligibility for withholding of removal rests with the alien, who
must show that it is more likely than not that he would be persecuted or tortured
upon being removed. Delgado, 487 F.3d at 861.
The alien can meet his burden in two ways. First, he can demonstrate past
persecution in his home country based on a protected ground, in which case a
rebuttable presumption arises that he has a well-founded fear of future persecution,
and the burden shifts to the government to show that conditions in the country have
fundamentally changed or that the alien could reasonably relocate within the
country of removal and thereby avoid a future threat. 8 C.F.R. § 1208.16(b)(1).
Second, the alien may establish that he more likely than not would be persecuted in
the future based on a protected ground, either because the alien would be singled
out for persecution or because (1) there is a pattern or practice in the applicant’s
home country “of persecution of a group of persons similarly situated to the
applicant on account of” a protected ground, and (2) “[t]he applicant establishes his
or her own inclusion in and identification with such group of persons such that it is
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more likely than not that his or her life or freedom would be threatened upon return
to that country.” Id. § 1208.16(b)(2). If the IJ finds that the alien could avoid that
future threat by relocating to another part of his home country, the alien cannot
demonstrate that it is more likely than not that he would be persecuted or tortured
if removed. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006).
“[P]ersecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Delgado, 487 F.3d at 861(alteration in original) (quoting Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231
(11th Cir. 2005)). In determining whether an alien has suffered past persecution,
the IJ must consider the cumulative effects of the alleged incidents. Id. To show a
well-founded fear of future persecution, the BIA has required that there be
“systemic, pervasive, or organized” persecution of the petitioner’s group. See,
e.g., In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005). Moreover, in assessing the
circumstances in a country to determine whether a pattern or practice of
persecution exists, the BIA is entitled to rely heavily on country reports prepared
by the State Department. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1354 (11th Cir. 2009).
In this case, the IJ and the BIA found that Petitioners failed to meet their
burden of establishing that it is more likely than not that they would be persecuted
upon return to Uzbekistan based on their religious beliefs. Substantial evidence
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supports the IJ’s and the BIA’s adverse credibility determinations and their
findings that Petitioners did not meet their burden to establish past persecution or a
well-founded fear of future persecution. The IJ provided specific, cogent reasons
to support its adverse credibility determination, and the record does not compel a
finding that Nasriev and Baratova were credible.
The IJ cited several reasons behind its adverse credibility determination: (1)
Nasriev’s inability to provide specific details about his involvement in his church
in Uzbekistan, his fellow members in the church, or the church’s activities, (2) the
lack of corroborating evidence or effort to obtain evidence of Nasriev’s
involvement in his church in Uzbekistan, (3) the improbability that Nasriev’s
attackers, even those who did not know him personally, would know the sect of
Christianity to which he belonged and would use “Baptist” to insult him, (4)
Nasriev’s lack of substantive testimony about his alleged persecution, (5) Nasriev’s
lack of basic knowledge about religious doctrine, (6) the fact that Nasriev and
Baratova did not begin attending church immediately upon their entry into the
United States, (7) inconsistencies between Nasriev’s and Baratova’s testimonies,
and (8) numerous omissions in Nasriev’s application. The record does not compel
reversal of the IJ’s and the BIA’s findings on these matters.
For instance, Nasriev failed to provide specific details about his conversion
from Islam to Christianity and about his religious activities in Uzbekistan. He also
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failed to offer any corroborating evidence about his involvement with the Baptist
church in Uzbekistan or about other church members. And his claim that his
neighbors used terms like “Baptist dog” to insult him, when those neighbors lived
in a remote area of Uzbekistan in which Nasriev claimed resided only about twelve
Baptists, was also implausible, as his neighbors most likely would not have an
understanding of Christian denominations. Moreover, Nasriev’s testimony
regarding his arrest and physical abuse was somewhat inconsistent with his wife’s
testimony about the same incidents.
Furthermore, during an interview with an asylum officer, Nasriev was
unable to name the Gospels and named Moses and Abraham as apostles. This
inability to articulate basic religious doctrine may not undermine the sincerity of
Nasriev’s faith, but it casts doubt on his credibility regarding his assertion that he
has been a proselytizing Baptist for over thirty years. See Mezvrishvili v. U.S.
Att’y Gen., 467 F.3d 1292, 1296 (11th Cir. 2006) (recognizing that a petitioner
claiming religious persecution need not demonstrate “the knowledge of a
seminarian” at the hearing but that lack of detailed doctrinal knowledge may be
relevant to an applicant’s credibility even if it is irrelevant to the sincerity of his
beliefs). In addition, Nasriev and Baratova did not begin attending church in the
United States for months after entering the country, and their testimony regarding
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when they started attending church in this country was inconsistent and also
conflicted with the documentary evidence provided by their pastors.
Also undermining Nasriev’s credibility is that he omitted information from
his application for withholding of removal and CAT relief, such as his prior
military service in the Soviet army, his arrest in the United States for petit theft, the
fact that he used an alias when arrested, and the fact that he had assistance in
preparing his application. Although Petitioners argued that these omissions were
the result of Nasriev’s misunderstanding of the application questions, we cannot
say that such an explanation compels reversal of the adverse credibility finding.
See Chen, 463 F.3d at 1233 (“[W]hile [the petitioner]’s explanations of the
implausible aspects of his claim are tenable, we cannot say, especially given the
relative lack of corroborating evidence, that these explanations would compel a
reasonable fact finder to reverse the IJ’s credibility determination.”).
Substantial evidence also supports the IJ’s and the BIA’s determinations that
Nasriev and Baratova did not meet their burden of demonstrating that they would
be singled out for persecution upon return to Uzbekistan or that a pattern or
practice of persecuting Baptists or other evangelical lay Christians exists in
Uzbekistan. Evidence of country conditions shows that Uzbekistan is generally a
place of religious tolerance, and although Baptists and evangelical Christians have
difficulty registering their churches with the government and may face arrest or
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fines for worshipping with unregistered churches, such difficulty does not rise to
the level of persecution. In any event, substantial evidence supports the IJ’s and
the BIA’s conclusions that Nasriev and Baratova could relocate safely and
reasonably to Tashkent, the capital of Uzbekistan, as Nasriev previously studied at
a university in Tashkent without suffering persecution for his faith. Thus,
substantial evidence supports the IJ’s and the BIA’s determinations that Petitioners
failed to meet their burden of establishing eligibility for withholding of removal.
III.
To be eligible for CAT relief, an applicant must establish that it is more
likely than not that he would be tortured if removed to the proposed country of
removal. 8 C.F.R. § 1208.16(c)(2); Cole v. U.S. Att’y Gen., 712 F.3d 517, 532
(11th Cir.), cert. denied, 134 S. Ct. 158 (2013). For purposes of CAT:
Torture is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act he or she
or a third person has committed or is suspected of having committed,
or intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.
8 C.F.R. § 1208.18(a)(1). Furthermore, “[t]orture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel, inhuman or
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degrading treatment or punishment that do not amount to torture.” Id.§ 1208.18(a)(2).
Substantial evidence supports the IJ’s and the BIA’s determinations that
Petitioners here did not meet their burden of showing that it is more likely than not
that they would be tortured upon return to Uzbekistan at the hands of or with the
acquiescence of a public official. Petitioners relied on the same facts to support
their applications for withholding of removal and for protection under CAT, and at
worst, the record evidence shows that Petitioners may face fines or imprisonment
for worshipping in an unregistered church in Uzbekistan, which is not tantamount
to torture. Petitioners have therefore failed to meet their burden of establishing
eligibility for CAT relief.
Upon careful review of the entire record on appeal and of the parties’
appellate briefs, we deny the petition.
PETITION DENIED.
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