[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 10-12035 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
DECEMBER 27, 2010
________________________
JOHN LEY
CLERK
Agency No. A088-255-736
FATOUMATA BARRY,
llllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
ll llllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 27, 2010)
Before HULL, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Fatoumata Barry seeks review of the Board of Immigration Appeals’s (“BIA”)
order affirming the Immigration Judge’s (“IJ”) denial of asylum, withholding of
removal, and relief under the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) based on adverse
credibility and failure to show persecution on account of a protected ground. Barry
argues on appeal that: (1) the BIA erred by affirming the IJ’s adverse-credibility
finding because the IJ erred in relying excessively on a single inconsistency between
her testimony and documentary evidence submitted with her application regarding the
date of her husband’s first arrest; (2) the IJ and BIA erred in finding that she did not
suffer persecution on account of a protected ground and could not establish a
well-founded fear of future persecution; and (3) she is entitled to withholding of
removal because the record demonstrates that it is more likely than not that she would
be persecuted if returned to Guinea. After careful review, we deny the petition.1
We review the BIA’s decision, except to the extent the BIA expressly adopted
the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). Here,
because the BIA issued its own opinion upholding the IJ’s adverse-credibility finding
1
As an initial matter, Barry failed to raise her CAT claim on appeal to the BIA and on
appeal to this Court. Therefore, her CAT claim is both unexhausted and abandoned, and we will
not consider it. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir.
2006) (holding that we lack jurisdiction to review any claims that the petitioner failed to exhaust
before the BIA); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)
(holding that, when an appellant fails to offer argument on an issue, the issue is abandoned).
2
and the denial of asylum, withholding of removal and CAT relief, we only review the
BIA’s decision. Id.
We review the BIA’s factual determinations under the substantial-evidence
test. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817-18 (11th Cir. 2004). Under
this 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.” Id.
Credibility is a factual determination, and we “may not substitute [our] judgment for
that of the BIA with respect to credibility findings.” Id. Credibility determinations
can be reversed only if the evidence “compels” a reasonable fact finder to find
otherwise. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1276 (11th Cir. 2009). Whether
an alien has proven persecution is another factual determination we review under the
substantial-evidence test. Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320,
1327 (11th Cir. 2001).
First, we find no merit in Barry’s claim that the BIA erred by affirming the IJ’s
adverse-credibility finding to deny asylum. An alien is eligible for discretionary
asylum relief if the alien is a “refugee” within the meaning of 8 U.S.C. §
1101(a)(42)(A). A “refugee” is defined as
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country because of
3
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of proving that
she qualifies as a “refugee.” 8 C.F.R. § 208.13(a). In order to meet this burden, “the
applicant must, with specific and credible evidence, establish (1) past persecution on
account of a statutorily protected ground or (2) a well-founded fear of future
persecution on account of a protected ground.” Mejia v. U.S. Att’y Gen., 498 F.3d
1253, 1256 (11th Cir. 2007) (citing 8 C.F.R. § 208.13(b)).
“The asylum applicant must establish eligibility for asylum by offering
credible, direct, and specific evidence in the record.” Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1287 (11th Cir. 2005) (internal quotations and citation omitted). The
alien’s testimony, “if credible, may be sufficient to sustain the burden of proof [for
asylum] without corroboration.” 8 C.F.R. § 208.13(a). “The weaker an applicant’s
testimony, however, the greater the need for corroborative evidence.” Yang v. U.S.
Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “If the applicant produces no
evidence other than [her] testimony, an adverse-credibility determination is alone
sufficient to support the denial of an asylum application.” Forgue, 401 F.3d at 1287.
“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
4
solely on an adverse credibility determination.” Id. The IJ must make a “clean”
determination of credibility, Yang, 418 F.3d at 1201, offering “specific, cogent
reasons for an adverse credibility finding,” Forgue, 401 F.3d at 1287.
Congress amended the law regarding credibility determinations in applications
filed after May 11, 2005. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir.
2006) (discussing the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, §
101(h)(2)). Under the new standard, credibility determinations must be based on the
totality of the circumstances and all relevant factors, regardless of whether they go
to the heart of the applicant’s claim. Id. (citing 8 U.S.C. § 1158(b)(1)(B)(iii)).
Substantial evidence supports the BIA’s adverse-credibility finding. As the
record shows, there was an inconsistency in Barry’s testimony placing her husband’s
first arrest on July 10, 2005, with an order releasing Diallo from prison dated June 17,
2005, and there were also various implausibilities regarding Barry’s claim, including
her and her husband’s inconsistent use of the Guinean court system. In addition, the
IJ noted, and the BIA expressly affirmed, that the late-filed arrest warrant for Barry’s
husband was not reliable because it was late-filed, contained handwritten portions,
and had a two-year delay in the dates. Thus, substantial evidence supports the BIA's
adverse-credibility finding, and a reasonable fact finder would not be compelled to
reverse the BIA’s finding that Barry’s testimony was not credible.
5
Next, we reject Barry’s claim that the IJ and BIA erred in finding that she did
not suffer persecution on account of a protected ground and could not establish a
well-founded fear of future persecution. An applicant for asylum who has established
past persecution on a protected ground is presumed to have a well-founded fear of
future persecution on the basis of the original claim. 8 C.F.R. § 208.13(b)(1). The
government may rebut this presumption by showing, by a preponderance of the
evidence, either (1) a change in the country’s conditions, or (2) that relocation within
the country would avoid future persecution and that it was reasonable to expect the
alien to do so. Id. § 208.13(b)(1)(i)(A), (B).
If the alien “cannot show past persecution, then the petitioner must demonstrate
a well-founded fear of future persecution that is both subjectively genuine and
objectively reasonable.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir.
2006). “The subjective component can be proved by the applicant’s credible
testimony that he or she genuinely fears persecution, while the objective component
can be fulfilled either by establishing past persecution or that he or she has a good
reason to fear future persecution.” Id. (citation and internal quotations omitted). The
petitioner must establish “that there is a reasonable possibility he or she would be
singled out individually for persecution, or that [she] is a member of, or is identified
6
with, a group that is subjected to a pattern or practice of persecution.” Djonda v. U.S.
Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (quotations omitted).
To establish eligibility for asylum, an alien must establish a nexus between a
statutorily protected ground and the persecution. Sepulveda, 401 F.3d at 1231. An
alien can meet this burden by presenting specific, detailed facts demonstrating a good
reason to fear that he will be singled out for persecution on account of such ground.
Id. An alien who alleges persecution on account of his political opinion must
establish that he was persecuted because of his own actual or imputed political
opinion, not because of the persecutor’s political motives. INS v. Elias-Zacarias, 502
U.S. 478, 482-83 (1992).
Even assuming her testimony was credible, Barry failed to meet her burden to
prove past persecution because she did not show that she was persecuted on account
of a protected ground. Barry’s testimony that she was raped by a prosecutor in
exchange for her husband’s release from jail undeniably demonstrated grievous harm
caused by general corruption, but did not show persecution on account of a protected
ground. Moreover, the harm done to her husband did not constitute persecution of
Barry because she was not concomitantly threatened. See De Santamaria v. United
States Att’y Gen., 525 F.3d 999, 1009 n.7 (11th Cir. 2008). Barry was never arrested
and she did not testify to any threats directed at her. Because Barry did not establish
7
past persecution with credible testimony or other corroborating documentation, she
was not entitled to a presumption of future persecution. See 8 C.F.R. § 208.13(b)(1).
Barry likewise failed to show a well-founded fear of future persecution because
she only established that she was a victim of a crime, and not that she was persecuted
on account of a protected ground. Ruiz, 440 F.3d at 1258. In addition, we lack
jurisdiction to consider her particular-social-group claim because she failed to
exhaust it before the agency. See Amaya-Artunduaga, 463 F.3d at 1251. Thus, the
BIA’s conclusion that Barry failed to demonstrate past persecution or a well-founded
fear of future persecution was supported by substantial evidence.
Finally, we are unpersuaded by Barry’s claim that she is entitled to withholding
of removal. To be eligible for withholding of removal, an “alien bears the burden of
demonstrating that it is ‘more likely than not’ she will be persecuted or tortured upon
being returned to her country.” Sepulveda, 401 F.3d at 1232 (citation omitted).
Because this is a more stringent standard than for asylum, “[i]f an applicant is unable
to meet the well-founded fear standard for asylum, [s]he is generally precluded from
qualifying for either asylum or withholding of deportation.” Id. at 1232-33
(alterations in original). Since Barry failed to demonstrate her eligibility for asylum
as discussed above, she also did not qualify for withholding of removal.
PETITION DENIED.
8