Anil Zood v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12426
Non-Argument Calendar
____________________
ANIL ZOOD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-755-969
____________________
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2 Opinion of the Court 21-12426
Before J ORDAN, NEWSOM , and ANDERSON, Circuit Judges.
PER CURIAM:
Anil Zood seeks review of the Board of Immigration Ap-
peals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”)
denial of asylum pursuant to the Immigration and Nationality Act
(“INA”) § 208(a), 8 U.S.C. § 1158(a), withholding of removal under
INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and request for protection
under the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”),
8 C.F.R. § 1208.16, based on the IJ and BIA’s finding that Zood was
not credible. He argues he satisfactorily explained any evidentiary
inconsistencies supporting the IJ and BIA’s adverse credibility de-
termination and that he was entitled to CAT relief.
We review only the decision of the BIA, except to the extent
that the BIA expressly adopted or explicitly agreed with the opinion
of the IJ.
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir.
2010). “Insofar as the BIA adopts the IJ's reasoning, we review the
IJ's decision as well.”
Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230
(11th Cir. 2006). We lack jurisdiction to consider issues where a
petitioner has failed to exhaust his administrative remedies, which
includes arguments that were not presented to the BIA.
Jeune v.
U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016).
We review credibility determinations under the substantial-
evidence test.
Chen, 463 F.3d at 1230–31. “The trier of fact must
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21-12426 Opinion of the Court 3
determine credibility, and this court may not substitute our judg-
ment for that of the BIA with respect to credibility findings.”
D-
Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004).
While a credibility determination may not be based on speculation
and conjecture, “our review of an IJ’s credibility determination is
extremely deferential,” and the IJ need only provide specific and
cogent reasons supporting an adverse credibility determination.
Xiu Ying Wu v. U.S. Att'y Gen., 712 F.3d 486, 493–94 (11th Cir.
2013). We will reverse the IJ’s credibility findings “only if the evi-
dence ‘compels’ a reasonable fact finder to find otherwise.”
Sepul-
veda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (citing
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S. Ct. 812, 815 n.1
(1992)).
An IJ’s denial of asylum “can be supported solely by an ad-
verse credibility determination, especially if the [petitioner] fails to
produce corroborating evidence.”
Chen, 463 F.3d at 1231. How-
ever, even if a petitioner is found to be not credible, the IJ has a
duty to consider other evidence produced by an asylum applicant.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)
(holding that, if the applicant produces other evidence of his perse-
cution, “it is not sufficient for the IJ to rely solely on an adverse
credibility determination in those instances”).
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or respon-
siveness of the applicant or witness, the inherent
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4 Opinion of the Court 21-12426
plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s writ-
ten and oral statements (whenever made and
whether or not under oath, and considering the cir-
cumstances under which the statements were made),
the internal consistency of each such statement, the
consistency of such statements with other evidence of
record (including the reports of the Department of
State on country conditions), and 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, or any other
relevant factor.
INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii) (as amended by
the REAL ID Act § 101(a)(3)). We have held that one inconsistency
and one omission regarding the critical events of the petitioner’s
application were sufficient to support an adverse credibility finding
where there was no corroborating evidence to rebut the incon-
sistency and omission.
Xia v. U.S. Att’y Gen., 608 F.3d 1233, 1240–
41 (11th Cir. 2010). The fact that an applicant provides “tenable”
explanations concerning the “implausible aspects of his claim” does
not compel a finding that the IJ or BIA’s credibility determination
was not supported by substantial evidence, particularly where the
applicant does not provide corroborating evidence.
Chen, 463 F.3d
at 1233. An applicant’s failure to meet the burden of proof for an
asylum claim due to an adverse credibility determination precludes
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21-12426 Opinion of the Court 5
eligibility for CAT relief because the burden of proving entitlement
to withholding of removal or CAT relief is more demanding than
the burden of proving eligibility for asylum.
Xia, 608 F.3d at 1237
n.4.
Here, substantial evidence supported the IJ and BIA’s finding
that Zood was not credible because the record contains at least one
inconsistency and one omission regarding the critical events of
Zood’s application and does not contain any corroborating evi-
dence to rebut the inconsistency and omission.
Zood’s testimony conflicted with his father’s affidavit. Zood
failed to raise this issue before the BIA. Thus, we lack jurisdiction
over that unexhausted issue. Even if we had jurisdiction, Zood
failed to explain these discrepancies in a manner that would “com-
pel a reasonable fact finder to reverse the IJ’s credibility determina-
tion.”
Chen, 463 F.3d at 1233.
Zood’s testimony and the submitted medical records con-
flicted with affidavits from witnesses. Zood’s explanation for those
inconsistencies likewise fails to compel a finding that the IJ and
BIA’s decision was not supported by substantial evidence.
Further, because Zood failed to meet the burden of proof
for his asylum claim due to an adverse credibility determination,
he cannot prevail on his withholding of removal or his CAT claim.
Accordingly, we deny Zood’s petition.
PETITION DENIED.
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