Anup Kumar v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10171
Non-Argument Calendar
____________________
ANUP KUMAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-265-926
____________________
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 1 of 14

-- 1 of 14 --

2 Opinion of the Court 22-10171
Before J ORDAN, NEWSOM , and TJOFLAT, Circuit Judges.
PER CURIAM:
Anup Kumar seeks review of the Board of Immigration Ap-
peals’ (the “BIA”) decision affirming the Immigration Judge’s (the
“IJ”) denial of his application for asylum, withholding of removal
under the Immigration and Nationality Act (the “INA”), and relief
under the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment (the
“CAT”). Kumar argues that the BIA and IJ erred in making an ad-
verse credibility determination because they disregarded the times
when his testimony was consistent, and he offered corroborative
evidence that satisfactorily explained any inadvertent inconsisten-
cies. He also argues that any inconsistencies and omissions in his
testimony were trivial and non-material. Finally, Kumar chal-
lenges the IJ’s alternative findings that he was ineligible for relief
even if his testimony had been credible. Because the BIA and IJ
based their adverse credibility findings on specific, cogent reasons
that were supported by substantial evidence, Kumar’s petition for
review is denied.
I.
We begin with a brief recounting of the pertinent facts, as
described in Kumar’s application for asylum and supporting affida-
vit, and an overview of the evidence Kumar submitted to the IJ.
The credibility of Kumar’s evidence is discussed in part III,
infra.
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 2 of 14

-- 2 of 14 --

22-10171 Opinion of the Court 3
Kumar, a native and citizen of India, entered the United
States on or about November 26, 2017. On January 3, 2018, the
Department of Homeland Security served Kumar with a Notice to
Appear (“NTA”), charging him as being removable as: (1) a noncit-
izen seeking admission without a valid entry or travel document
under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I); and (2)
as “an alien present in the United States without being admitted or
paroled” under INA § 212 (a)(6)(A)(i), 8 U.S.C. (a)(6)(A)(i). On June
4, 2018, Kumar filed a Motion to Change Venue in which he admit-
ted the factual allegations in the NTA and conceded that he was
removable under the above statutes.
Kumar submitted an I-589 application that sought both asy-
lum and withholding of removal under the INA, as well as CAT
relief. Kumar’s application claimed he was “physically harmed and
mistreated” in India, and that “the workers of Gurmeet Ram
Rahim1 and [the] BJP party2 attacked [him] thrice.” He claimed
that he would be harmed if he returned to India because he was
1 Gurmeet Ram Rahim Singh is the head of Dera Sacha Sauda, a social group
in India. In 2017, he was found guilty of raping two women. Following the
guilty verdict, a demonstration of Ram Rahim’s followers in Panchkula de-
volved into violence and chaos. Kumar’s affidavit uses the names Ram Rahim,
Baba Ram Rahim, Sant Gurmeet Ram Raheem, and Gurmeet Ram Rahim
Singh, among others, to describe the same person. This opinion refers to him
as Ram Rahim.
2 The BJP is the Bharatiya Janata Party, the ruling party in India.
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 3 of 14

-- 3 of 14 --

4 Opinion of the Court 22-10171
threatened and attacked by supporters of the BJP and workers of [ ]
Ram Rahim because he did not support them.
In the affidavit Kumar submitted to supplement his asylum
application, he claimed he was persecuted by the followers of Ram
Rahim. His affidavit stated that he became involved with Dera Sa-
cha Sauda (“DSS”), which was a “socio-spiritual organization”
headed by Ram Rahim. Kumar’s involvement with DSS involved
putting up posters and serving food and water to people during re-
ligious gatherings.
Kumar later learned that Ram Rahim was involved in illegal
activities, including murder and rape, and that he forced people to
convert to his religion. Kumar also claimed that Ram Rahim was
supported by the ruling government, the BJP, because Ram Rahim
provided the BJP with many votes. When he learned of Ram
Rahim’s illegal activities, Kumar stopped following him and as a
result was threatened and attacked by Ram Rahim’s followers, who
tried to force Kumar to join their religion.
Kumar stated that he was attacked by Ram Rahim’s follow-
ers on August 25, 2017. They told Kumar to come with them to
Panchkula for a rally in support of Ram Rahim. When Kumar re-
fused to go with them, he claimed they beat him mercilessly. Next,
Kumar claimed that, on August 28, 2017, Rahm Rahim’s followers
beat him with sticks and showed him their weapons; they then for-
cibly took Kumar to Panchkula to show support for Ram Rahim.
When he returned, Kumar’s father took him to the village doctor,
who gave him pain killers. Kumar and his father also went to the
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 4 of 14

-- 4 of 14 --

22-10171 Opinion of the Court 5
police station on August 29, 2017, but the police did not take their
report.
According to Kumar’s affidavit, Ram Rahim’s followers
threatened him again on September 7, 2017, telling him that if he
did not follow their religion, they would kill him. Kumar claimed
that on September 11, he went to the BJP to complain about Ram
Rahim’s followers. The government did not help him, and, accord-
ing to Kumar’s statement, they threatened to put him behind bars
under false charges if he ever tried to file another complaint against
Ram Rahim.
Fearing for his life, Kumar claimed that he left India on Sep-
tember 26, 2017. According to Kumar, if he returns to India, Ram
Rahim’s followers “will again harass me, torture me, and might kill
me.” He claims that Ram Rahim’s followers “showed [his] pictures
everywhere.”
Along with his affidavit, Kumar submitted: a signed affidavit
from his father, a signed affidavit from his mother, and affidavits
from his uncle and other community members and friends. Kumar
also submitted articles about Ram Rahim’s political influence and
his illegal activities.
As discussed
infra, the IJ made an adverse credibility finding
regarding Kumar’s testimony because of inconsistencies between
his affidavit and his testimony; internal inconsistencies in his testi-
mony; and his demeanor, candor, and responsiveness. Because
there was not sufficient evidence in the record to support Kumar’s
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 5 of 14

-- 5 of 14 --

6 Opinion of the Court 22-10171
claim in the absence of his testimony, the IJ denied his application
for relief based on the adverse credibility finding alone. In case the
BIA disagreed with the adverse credibility finding, the IJ went on
to offer alternative grounds for denying the relief Kumar sought.
The IJ noted that Kumar had not established a nexus in any of the
five protected factors laid out in the INA and that Kumar had not
been the victim of past persecution.3
The BIA affirmed and adopted the decision of the IJ, noting
that the IJ “identified inconsistencies within [Kumar’s] testimony,
between [Kumar’s] testimony and his affidavit, and between his
testimony and his parents’ affidavits.” The BIA held that the IJ’s
assessment of the adverse credibility factors was a reasonable inter-
pretation of the record and that the adverse credibility determina-
tion undermined all of Kumar’s claims for relief. According to the
BIA, “[t]he other affidavits and independent evidence of record are
insufficient” to meet the “burdens of proof in light of the lack of
credible testimony.” Because the adverse credibility finding under-
mined all of Kumar’s evidence, the BIA did not reach the IJ’s alter-
native holdings.
II.
We “review the BIA’s decision as the final judgment, unless
the BIA expressly adopted the IJ’s decision.”
Gonzalez v. U.S. Att’y
3 The statutorily listed factors are race, religion, nationality, membership in a
particular social group, or political opinion. INA § 101(a)(42)(A); 8 U.S.C. §
1101(a)(42)(A).
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 6 of 14

-- 6 of 14 --

22-10171 Opinion of the Court 7
Gen., 820 F.3d 399, 403 (11th Cir. 2016). Where the BIA adopts the
IJ’s decision or expressly agrees with the IJ’s reasoning, we will re-
view both decisions to the extent of the adoption or agreement.
Id.
Issues not reached by the BIA are not properly before us.
Id.
We review factual findings, including credibility determina-
tions, using the substantial evidence test.
Chen v. U.S. Att’y Gen.,
463 F.3d 1228, 1230–31 (11th Cir. 2006) (per curiam). Under the
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) (internal quotation marks
omitted). We view the evidence in the light most favorable to the
agency’s decision and draw all reasonable inferences in favor of that
decision.
Id. at 1027. We will reverse an agency factual finding
“only if the evidence compels a reasonable fact finder to find other-
wise.”
Chen, 463 F.3d at 1230–31 (internal quotation marks omit-
ted). The mere fact that the record may support a contrary conclu-
sion is not enough to justify a reversal of the agency’s findings.
Adefemi, 386 F.3d at 1027.
An applicant for asylum must meet the INA’s definition of a
refugee. INA § 208(b)(1)(A); 8 U.S.C. § 1158(b)(1)(A). The INA
defines a refugee as:
[A]ny 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
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 7 of 14

-- 7 of 14 --

8 Opinion of the Court 22-10171
because of persecution or a well-founded fear of per-
secution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.
INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). To meet the defini-
tion of a refugee, the applicant must, “with specific and credible
evidence, demonstrate (1) past persecution on account of a statu-
torily listed factor, or (2) a well-founded fear that the statutorily
listed factor will cause future persecution.”
Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1257 (11th Cir. 2006) (internal quotation marks omit-
ted). If the petitioner cannot show past persecution, he must
demonstrate “a well-founded fear of future persecution that is both
subjectively genuine and objectively reasonable.”
Id.
Like the showing required for asylum, an applicant seeking
the withholding of removal under the INA must demonstrate that
his “life or freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a particular
social group, or political opinion.” INA § 241(b)(3)(A), 8 U.S.C. §
1231(b)(3)(A). Withholding of removal claims are governed by a
“more stringent” standard than asylum claims, however, requiring
the applicant to demonstrate that it is “more likely than not” that
he will be persecuted upon return to his home country.
Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1233 (11th Cir. 2005).
An applicant seeking CAT relief must establish “that it is
more likely than not that he or she would be tortured if removed
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 8 of 14

-- 8 of 14 --

22-10171 Opinion of the Court 9
to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The
CAT defines torture as:
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son 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. § 208.18(a)(1).
An adverse credibility determination must be based on “spe-
cific, cogent reasons.”
Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1287 (11th Cir. 2005). Once an adverse credibility determination is
made, the applicant has the burden to show either that the deter-
mination was not based on specific, cogent, reasons or that it is not
supported by substantial evidence.
Id. An applicant’s tenable ex-
planation for an inconsistency or implausibility will not necessarily
warrant reversal, particularly where corroborating evidence is lack-
ing.
See Chen, 463 F.3d at 1233.
An IJ may base a credibility finding on the totality of the cir-
cumstances, including: (1) the demeanor, candor, or responsive-
ness of the applicant; (2) the inherent plausibility of the applicant’s
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 9 of 14

-- 9 of 14 --

10 Opinion of the Court 22-10171
account; (3) the consistency between the applicant’s written and
oral statements; (4) the internal consistency of each statement; and
(5) the consistency of the statements with other record evidence,
including State Department reports. INA § 208(b)(1)(B)(iii), 8
U.S.C. § 1158(b)(1)(B)(iii). An adverse credibility determination
may be based on inaccuracies, inconsistences, and falsehoods,
whether or not they relate to the “heart” of the applicant’s claim.
Id.
III.
Here, the BIA dismissed Kumar’s appeal of the IJ’s decision
and adopted the IJ’s credibility finding. The BIA expressly declined
to reach the IJ’s alternative holdings, however. That means we re-
view both the BIA’s and IJ’s decisions regarding the adverse credi-
bility ruling, but because the BIA did not reach the IJ’s alternative
holdings, they are not before this Court.
See Gonzalez, 820 F.3d at
403. Kumar’s burden, then, is to show either that the adverse cred-
ibility findings were (1) not based on specific, cogent reasons; or (2)
not supported by substantial evidence.
The BIA and IJ did not simply give general reasons for deny-
ing Kumar’s application for relief. Both referred to the numerous
inconsistencies within Kumar’s testimony, between his testimony
and his affidavit, and between his testimony and his parents’ affida-
vits. They also based their adverse credibility determinations on
Kumar’s non-responsiveness when asked about certain inconsist-
encies. These reasons are both specific and cogent.
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 10 of 14

-- 10 of 14 --

22-10171 Opinion of the Court 11
Because the BIA’s and IJ’s adverse credibility findings were
based on specific, cogent reasons, Kumar bears the burden of show-
ing that the findings were not supported by substantial evidence.
He does not meet that burden. Substantial evidence based on the
INA § 208(b)(1)(B)(iii) factors supports the specific, cogent reasons
given by the BIA and IJ.
First, Kumar’s testimony at the removal proceeding was in-
ternally inconsistent. As an example, Kumar initially testified that
when he arrived in Panama after fleeing India, he and the others
traveling with him told the army that they wanted to apply for asy-
lum. After the IJ asked whether they denied his application for asy-
lum, Kumar stated that he did not apply, and that “over there [he]
was not aware of asylum.” In addition, Kumar testified early in the
proceeding that on September 7 he was at home, saw Ram Rahim’s
followers coming, and fled. When they could not find him, they
threatened his mother and sister instead. Later in the proceeding,
though, he testified that on September 7 he was in a field when
Ram Rahim’s followers approached him, and he ran away.
Second, Kumar’s affidavit and his testimony at the removal
proceeding are inconsistent. Some of the inconsistencies in Ku-
mar’s testimony are minor. For example, Kumar testified that he
entered the United States on September 26, 2017. But in his I-589
application and his affidavit he stated that he entered the United
States on November 26, 2017. Kumar also referred to DSS as a “so-
cio-spiritual organization” that oversaw “cleanliness campaigns,
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 11 of 14

-- 11 of 14 --

12 Opinion of the Court 22-10171
blood donation drives, and tree planting.” In his testimony, he re-
fers to DSS as a place.
There are also major discrepancies between Kumar’s affida-
vit and his testimony. In his affidavit, Kumar stated that on August
25, 2017, he was beaten “mercilessly” by Ram Rahim’s followers
for refusing to go to the rally in support of Ram. Kumar’s testi-
mony, however, told a different story. There he stated that August
28, 2017, was the only day he was beaten.4 He also stated that he
attended the August 25 event in support of Ram Rahim of his own
volition, driving his own car and transporting other members of his
village.
Kumar’s affidavit stated that on August 28, Ram Rahim’s fol-
lowers beat him with sticks and showed him weapons because he
refused to go show his support for Ram Rahim, and that they
“forcefully took” him to Panchkula. But he testified that on August
28 Ram Rahim’s followers beat him up and threatened him, but
then left.
As a final example of how Kumar’s testimony conflicted
with his affidavit, Kumar’s affidavit claimed that on September 7,
2017, he was again threatened by Ram Rahim’s followers and that
he was “scared and horrified.” In his testimony, though, he said
4 Kumar’s testimony that he was only beaten once by Ram Rahim’s followers
also directly conflicts with his I-589 application for relief, where he stated:
“[T]he workers of Gurmeet Ram Rahim and [the] BJP party attacked me
thrice.”
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 12 of 14

-- 12 of 14 --

22-10171 Opinion of the Court 13
that on September 7, Ram Rahim’s followers came to his house,
but he saw them coming so he left.
Third, Kumar’s testimony was inconsistent with the other
evidence in the record. As previously mentioned, Kumar testified
that on August 25 he went to the rally of his own volition and that
he was not beaten. His father’s affidavit stated that Kumar refused
to go to the rally and was beaten. His father also stated that on
August 28 Kumar was forcibly taken to the rally, which contra-
dicted Kumar’s testimony. Kumar’s father’s affidavit also por-
trayed DSS as an organization and not a place. Similar inconsisten-
cies existed between Kumar’s testimony and his mother’s affida-
vit.5
Finally, Kumar’s responses to many of the questions he was
asked at his removal proceeding were unresponsive. He failed to
answer questions asked by all parties—the Government, the IJ, and
even his own attorney. When asked about the inconsistencies be-
tween his affidavit’s version of events on August 25 and his prior
testimony, Kumar did not answer the questions the government’s
attorney asked. Kumar likewise did not answer when he was asked
by both the IJ and his own attorney about whether he applied for
asylum in Panama, when he was questioned about whether DSS
5 Though the BIA and IJ do not heavily rely on inconsistencies between Ku-
mar’s testimony and affidavits other than those of his parents, there are similar
inconsistencies between Kumar’s testimony and the affidavits of Jiya Lal, Sunil
Kamar, Sanjeev Kumar, and Ramit Surinder.
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 13 of 14

-- 13 of 14 --

14 Opinion of the Court 22-10171
was an organization, when he was questioned about the inconsist-
encies in his statements about the events of August 25, and Septem-
ber 7, and when he was asked whether Ram Rahim went by any
other names.
Kumar argues that any inconsistencies and omissions in his
testimony were trivial and immaterial. The discrepancies and in-
consistencies discussed above are hardly trivial or immaterial. But
even if they were, the IJ would still have been allowed to consider
them in making its credibility determination. An IJ can consider
any inaccuracy or falsehood, regardless of whether it “goes to the
heart of the applicant’s claim, or any other factor.” 8 U.S.C. §
1158(b)(1)(B)(iii).
In sum, we must affirm the BIA’s and IJ’s adverse credibility
findings because they were “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.”
Ade-
femi, 386 F.3d at 1026–27. In light of those findings, the record does
not compel a finding that Kumar is eligible for asylum, withholding
of removal, or CAT relief. We therefore deny his petition for re-
view.
PETITION DENIED.
USCA11 Case: 22-10171 Date Filed: 11/28/2022 Page: 14 of 14

-- 14 of 14 --