Cholpon Alymova v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13342
Non-Argument Calendar
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Agency No. A201-180-168
CHOLPON ALYMOVA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 1, 2016)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Petitioner Cholpon Alymova, a native and citizen of Kyrgyzstan, seeks
review of the Board of Immigration Appeals’s (“BIA”) order affirming the
Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture
(“CAT”). On appeal, Petitioner argues (1) that the IJ’s adverse credibility
determination is not supported by substantial evidence; (2) that the cumulative
impact of the incidents she experienced rose to the level of past persecution; and
(3) that she established a well-founded fear of future persecution based on a pattern
or practice of persecution of ethnic Uzbeks in Kyrgyzstan. After review, we deny
the petition for review in part, and dismiss in part.1
I. FACTUAL BACKGROUND
A. Initiation of Removal Proceedings
In May 2012, Petitioner arrived in the United States on a non-immigrant
exchange visitor’s visa. In October 2012, the Department of Homeland Security
(“DHS”) issued Petitioner a notice to appear, charging her as removable pursuant
to 8 U.S.C. § 1227(a)(1)(C)(i), for failing to comply with the conditions of her
non-immigrant visa status. At a preliminary removal hearing, Petitioner conceded
1 Petitioner failed to raise any argument concerning the denial of withholding of removal or
CAT relief, and thus, she has abandoned these claims. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005).
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that she was removable as charged and indicated that she intended to apply for
asylum, withholding of removal, and CAT relief.
B. Asylum Application and Attached Statement
In February 2013, Petitioner filed her asylum application, claiming that she
feared harm, mistreatment, and torture if returned to Kyrgyzstan because of her
Uzbek ethnicity.2 Petitioner stated that prior to her most recent entry (May 2012)
into the United States, she had earlier entered this country in June 2011. Two
months thereafter, in mid-August 2011, Petitioner claims to have received a phone
call from her brother telling her that one of their sisters had been beaten because
she was a “dirty Uzbek.”3 Although her brother urged her to remain in the United
States, Petitioner nonetheless decided to return to Kyrgyzstan, asserting that she
did so because she was worried about her family. When Petitioner arrived at the
airport in Kyrgyzstan at 5:00 a.m., she was detained for two-and-a-half to three
hours and questioned about her brother before she was allowed to leave.
In a statement attached to her application, Petitioner said that she had earlier
experienced impolite treatment at the local university due to her Uzbek accent,
with professors pretending not to understand her and classmates insulting her. In
early-April 2010, there were “disturbances” in Bishkek, where Petitioner was
2 Petitioner is a native and citizen of Kyrgyzstan who was born in Bishkek, Kyrgyzstan.
Further, her mother is Kyrgyz. Any claim to Uzbek ethnicity by Petitioner is derived from her
father, who is Uzbek.
3 As discussed infra, the credibility of this assertion was questioned by the IJ.
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attending school, and her brother had taken part in an unspecified “gathering” and
had suffered a beating and returned home covered in bruises after having been
arrested, jailed for 20 days, and tortured.
Petitioner then described four incidents that occurred after she returned to
check on her family and in which she suffered violence on account of her ethnicity.
On September 22, 2011, the Day of Kyrgyz Language, two guys began bothering
Petitioner, asking her “what is this stinking Uzbek doing at our holiday.” After
Petitioner started walking home around 7:00 p.m., a group of six guys, including
the two that had previously harassed her, called her names, spit at her, and beat her
until she passed out, resulting in her being hospitalized for four days. Even though
the police did not want to accept the report, Petitioner filed a police report about
this incident, but a detective later demanded that she take back her statement
because it slandered the Kyrgyz people. On November 17, 2011, as Petitioner was
leaving a café around 10:00 p.m., three people approached her, pulled out a knife,
brushed the knife blade across her face, and told her that they would cut her if she
did not withdraw her complaint. The next day, Petitioner withdrew her complaint.
On March 8, 2012, as Petitioner was leaving a café around midnight, a group
of six guys surrounded her, made a derogatory remark about Uzbeks, hit her in the
chest hard enough that she could not breathe, and kicked her in the leg causing her
to fall down. After she was kicked in the head, she passed out, resulting in her
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being hospitalized for a week. When she went to the police to make a statement,
the detective was rude, called her a “small Uzbek slut,” told her that he did not
have a way to catch all of the “hooligans,” and tried to convince her to take back
her statement. On April 17, 2012, Petitioner was called in to the police station to
make another statement, and a different detective said he could not help her, that
her case was one of “hooligans,” and pressured her to withdraw her statement.
Two days later, Petitioner began receiving threatening phone calls from an
unknown number.
On April 26, 2012, as Petitioner was arriving home after class, Petitioner
was forced into a car by a tall, athletically-built man. Two additional individuals
were inside of the car, including the police detective who had most recently
pressured her to withdraw her statement. After driving around for 20 minutes, the
detective coerced Petitioner to sign a paper that admitted that she was “guilty” of
an unspecified offense. Petitioner was told that she would be raped and killed if
she did not sign the paper. After signing the paper, she was let go.
In addition to the incidents Petitioner experienced, she also stated that her
sister had been beaten in November 2011 because she was an Uzbek, and was
hospitalized for a week.
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C. Documentary Evidence
In support of her asylum application, Petitioner attached statements from her
mother, brother, and sister. Each of the statements provided a brief description of
the four incidents Petitioner referenced in her asylum application. The statements
also averred that law enforcement officers interrogated Petitioner at the airport in
Kyrgyzstan on September 2, 2011. None of the statements, including the one from
Petitioner’s sister, ever mentioned that Petitioner’s sister had been beaten.
D. Merits Hearing on Asylum Application
At a hearing before the IJ, Petitioner testified about her fear of returning to
Kyrgyzstan and the four incidents she described in her asylum application.
Petitioner testified that she had a visa interview at the United States Embassy on
April 26 (which was also the same day she was allegedly pulled into the car by
police). She did not tell United States officials about what had happened to her
because she was afraid that these officials would inform the police officers who
were patrolling outside the embassy, and that the latter would remove her from the
embassy.
On cross-examination, Petitioner admitted that she did not tell embassy
officials about being pulled into the car, and explained that she failed to mention
this incident because of the police presence at the embassy. She then contradicted
the above statement, explaining her non-disclosure by testifying that she went to
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the embassy at 8:00 a.m., and the incident had not occurred until after school at
1:00 p.m. Because the incident had happened after her embassy visit, it was
impossible for her to inform embassy officials. Petitioner was certain that her
interview at the embassy occurred on the same day that she was pulled into the car.
She also believed that the incident happened because police knew she had received
a visa and they wanted her to sign a paper before she departed the country.
The DHS attorney then confronted Petitioner with her visa, which reflected
that the visa had been issued on April 25, the day before the alleged April 26
incident. Petitioner testified that she did not remember the exact date of her visa
interview, but she was sure that the incident occurred on April 26. She stated that
it was sometimes hard for her to remember things because she had suffered two
head injuries. Upon further questioning by her attorney, Petitioner contradicted her
earlier versions of the event, stating that she did not remember whether her
interview at the embassy was the same day as when she was forced into the car by
the police.
E. Decisions of the IJ and the BIA
The IJ denied Petitioner’s claims for asylum, withholding of removal, and
CAT relief. Citing serious inconsistencies in Petitioner’s testimony and supporting
evidence, the IJ found Petitioner not to be credible. The IJ further concluded that
the specific incidents Petitioner experienced did not individually or cumulatively
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rise to the level of past persecution and that Petitioner had not established a well-
founded fear of future persecution if she were returned to Kyrgyzstan. For the
same reasons, the IJ denied Petitioner’s application for withholding of removal and
CAT relief.
Petitioner appealed to the BIA, challenging the IJ’s adverse credibility
determination and its finding that the incidents she experienced did not rise to the
level of past persecution. The BIA affirmed the IJ’s decision. The BIA
determined that the record supported the IJ’s adverse credibility finding, and that
the IJ had cited specific and cogent reasons for its credibility determination. The
BIA also concluded that the IJ’s determination that Petitioner had not established a
well-founded fear of future persecution based on her Uzbek ethnicity was not
clearly erroneous.
II. DISCUSSION
A. Standard of Review
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision, in which case we review both decisions.
Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1330 (11th Cir. 2011). We also review
the IJ’s decision to the extent that the BIA adopted its reasoning or found the IJ’s
reasons to be supported by the record. Seck v. U.S. Att’y Gen., 663 F.3d 1356,
1364 (11th Cir. 2011). Here, the BIA issued its own opinion, but agreed with
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several aspects of the IJ’s decision and reasoning. Thus, we review the BIA’s
decision, as well as the IJ’s decision to the extent the BIA found the IJ’s reasons to
be supported by the record. Id. at 1364.
We review factual findings, including credibility determinations, for
substantial evidence. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.
2005). Under the substantial evidence test, we must affirm a determination “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. (quotation omitted). The evidence is viewed in the
light most favorable to the agency’s decision, drawing all reasonable inferences in
favor of that decision. Id. Moreover, we are also precluded from re-weighing the
evidence from scratch. Xia v. U.S. Att’y Gen., 608 F.3d 1233, 1239 (11th Cir.
2010). In other words, “[a] credibility determination, like any fact finding, may
not be overturned unless the record compels it.” Forgue, 401 F.3d at 1287
(quotations omitted).
B. Adverse Credibility Determination and Past Persecution Claim
An applicant for asylum must meet the Immigration and Nationality Act’s
(“INA”) definition of a refugee. 8 U.S.C. § 1158(b)(1)(A). The INA defines a
refugee as a person who cannot return to his or her home country due to
“persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” Id.
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§ 1101(a)(42)(A). To establish eligibility for asylum, an applicant must
demonstrate either past persecution, or a well-founded fear of future persecution,
based on a statutorily-listed factor. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257
(11th Cir. 2006). If the applicant demonstrates past persecution, there is a
rebuttable presumption that she has a well-founded fear of future persecution. Id.
An applicant’s testimony, if credible, may be sufficient to sustain her burden
of proof, without corroborating evidence. Forgue, 401 F.3d at 1287. Conversely,
if the applicant relies solely on her testimony, an adverse credibility determination
may alone be sufficient to support the denial of an asylum application. Id. “If,
however, the applicant produces other evidence of persecution, whatever form it
may take, the IJ must consider that evidence, and it is not sufficient for the IJ to
rely solely on an adverse credibility determination in those instances.” Id.
Pursuant to the REAL ID Act of 2005, the IJ is to consider the totality of the
circumstances and all relevant factors when evaluating an applicant’s credibility. 8
U.S.C. § 1158(b)(1)(B)(iii).4 An adverse credibility determination may be based
on (1) the applicant’s demeanor, candor, or responsiveness; (2) the plausibility of
the applicant’s account; and (3) inconsistencies, inaccuracies, or falsehoods related
to the applicant’s statements, witnesses’ statements, and other evidence in the
4 Because Petitioner’s asylum application was filed after May 11, 2005, it is subject to the
REAL ID Act of 2005. See Pub. L. No. 109-13, § 101(h)(2), 199 Stat. 231, 303, 305.
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record, regardless of whether they relate to the heart of the applicant’s claim. Id.
“Once an adverse credibility finding is made, the burden is on the [petitioner] to
show that the IJ’s credibility decision was not supported by ‘specific, cogent
reasons,’ or was not based on substantial evidence.” Ruiz, 440 F.3d at 1255
(quotations and alteration omitted). The fact that the applicant provides “tenable”
explanations for the doubtful portions of her testimony does not compel reversal,
particularly in the absence of corroborating evidence. Chen v. U.S. Att’y Gen., 463
F.3d 1228, 1233 (11th Cir. 2006).
In the present case, substantial evidence supports the BIA’s and IJ’s finding
that Petitioner’s testimony was not credible. Although we conclude that the BIA
unreasonably determined that a purported inconsistency existed between
Petitioner’s asylum application and her documentary evidence, our conclusion as
to that inconsistency does not compel reversal because the BIA and IJ offered other
specific and cogent reasons for the adverse credibility determination, and those
reasons are supported by substantial evidence. In particular, the BIA and IJ
identified material inconsistencies between Petitioner’s testimony and the
documentary evidence submitted in support of her application. We first address
the inconsistencies supported by substantial evidence, then turn to the perceived
inconsistency identified by the IJ and BIA.
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The BIA and IJ properly noted that Petitioner gave conflicting testimony
about the date of her visa interview and the April 26 incident. The IJ and BIA
considered this a crucial inconsistency given Petitioner’s certainty that she visited
the embassy on the same day that she got pulled into the car, and her detailed
description of the sequence of events that day. Petitioner did not acknowledge the
untruthfulness of the above chronology until she was confronted with the fact that
her visa was issued on April 25, at which point, she changed her story and said she
could not remember whether she was pulled into the car on the same day that she
interviewed for her visa. Petitioner’s only explanation for the inconsistency was
that her previous head injuries caused her to have memory problems, but as noted
by the BIA and IJ, the record does not contain any medical evidence supporting
Petitioner’s claim that her confusion is related to the residual effects of head
injuries. Additionally, the IJ and BOA observed that Petitioner became confused
and unable to come up with any other explanation during this portion of the
testimony, which demeanor undermined her credibility and was a proper
consideration. See Todorovic v. U.S. Att’y Gen., 621 F.3d 1318, 1325 (11th Cir.
2010) (explaining that the IJ is afforded significant deference in assessing an
applicant’s demeanor when making credibility determinations); 8 U.S.C.
§ 1158(b)(1)(B)(iii).
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Petitioner now concedes that the visa interview did not occur on the same
day as the April 26 incident, and therefore her testimony on that point was not true.
She nonetheless argues that this inconsistency does not support an adverse
credibility determination because it was minor and inconsequential. We find this
argument unpersuasive. The REAL ID Act, which governs Petitioner’s asylum
claim, makes clear that an adverse credibility determination can be based on any
inconsistency, regardless of whether it goes to the heart of the applicant’s claim. 8
U.S.C. § 1158(b)(1)(B)(iii); Chen, 463 F.3d at 1233 (rejecting petitioner’s
argument that inconsistencies were inconsequential because they did not go to the
heart of the claim).
Another discrepancy relied upon by the BIA and IJ was that Petitioner
claimed that her sister had been beaten on two occasions based on her Uzbek
ethnicity. Yet, none of the statements from Petitioner’s family members, which
were submitted in support of her asylum application, ever mentioned her sister’s
alleged beatings. Petitioner contends that the IJ impermissibly considered the
absence of corroborating evidence in making the credibility determination as to
this issue. However, we have previously determined that substantial evidence
supported an adverse credibility determination, where a petitioner alleged that he
was at a political rally when his mother was killed, but none of the statements from
his family members affirmed that he was politically active or present at the rally.
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See Carrizo, 652 F.3d at 1332. Given that the sister’s own statement did not even
mention the beatings that were purportedly inflicted on her, Petitioner’s perceived
lie on this point constituted a persuasive reason to question her credibility. Id.
Finally, the BIA and IJ identified an additional potential inconsistency in
that Petitioner’s mother’s statement indicated that Petitioner was interrogated at the
airport in Kyrgyzstan on September 2, 2011, while Petitioner’s asylum application
purportedly provided a different date. However, the record shows that Petitioner’s
asylum application did not provide any specific date for the airport interrogation.
In fact, Petitioner stated in her application that she received a phone call from her
brother in mid-August 2011 while she was in the United States, that she later
returned to Kyrgyzstan because she was concerned for her family, and that when
she arrived at the airport at 5 a.m., she was detained and interrogated by
authorities. These facts do not contradict Petitioner’s mother’s statement averring
that Petitioner was interrogated at the airport on September 2, 2011. Because there
was nothing contradictory about Petitioner’s asylum application and her mother’s
statement concerning the airport interrogation, we are compelled to conclude that
no reasonable factfinder would consider this an inconsistency. See Kueviakoe v.
U.S. Att’y Gen., 567 F.3d 1301, 1305–06 (11th Cir. 2009) (rejecting purported
inconsistencies in Petitioner’s testimony because the inconsistencies were not
supported by the record).
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Our determination with respect to the purported inconsistency concerning
the airport interrogation, however, does not compel reversal of the adverse
credibility finding. As discussed previously, the BIA and IJ offered two other
specific and cogent reasons for finding Petitioner not credible, and those reasons
are supported by substantial evidence.5 Cf. Xia, 608 F.3d at 1240 (concluding that
the totality of the record adequately supported the adverse credibility
determination, where the BIA identified at least one internal inconsistency and one
omission, and the petitioner did not provide any corroborating evidence to rebut
those inconsistencies). Accordingly, the totality of the circumstances, including
the discrepancies and the IJ’s observations of Petitioner’s demeanor, adequately
support the adverse credibility finding. Therefore, substantial evidence supports
the IJ’s and BIA’s denial of Petitioner’s asylum application based on a lack of past
persecution.6
5 Additionally, Petitioner challenges the IJ’s finding that she did not provide sufficient details
concerning the injuries she received as a result of the September 22 and March 8 incidents. We
do not address this argument because the BIA did not adopt (or agree) with the IJ’s finding on
this point. Seck, 663 F.3d at 1364; Carrizo, 652 F.3d at 1330. Regardless, the IJ’s discussion of
the September 22 and March 8 incidents related to whether the incidents individually or
cumulatively rose to the level of past persecution, not whether Petitioner’s description of these
incidents undermined her credibility.
6 Petitioner also argues that the IJ erred in finding that the cumulative impact of the incidents she
experienced did not rise to the level of past persecution. We do not address this issue because
the BIA did not adopt (or agree with) the IJ’s finding that the incidents did not rise to the level of
past persecution. See Seck, 663 F.3d at 1364; Carrizo, 652 F.3d at 1330. Instead, the BIA’s
decision reflects that it affirmed the IJ’s past persecution determination based solely on the
adverse credibility determination and did not consider Petitioner’s argument that the cumulative
impact of the incidents she experienced rose to the level of past persecution.
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C. Future Persecution Claim
Turning to Petitioner’s future persecution claim, we must first address our
jurisdiction to review this claim, which we review de novo. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). A court may not review a
final order of removal unless “the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner has failed
to exhaust her administrative remedies by not raising an issue in her brief to the
BIA, we lack jurisdiction to consider the claim. Amaya-Artunduaga, 463 F.3d at
1250.
We lack jurisdiction to review Petitioner’s argument that she established a
well-founded fear of future persecution based on a State Department Country
Report reflecting a pattern or practice of persecution against ethnic Uzbeks in
Kyrgyzstan. Petitioner did not raise this argument before the BIA, but instead
raised it for the first time on appeal. See id. Accordingly, we dismiss Petitioner’s
petition for review as to this issue.
PETITION DENIED IN PART AND DISMISSED IN PART.
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