Bobokalonov v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MAY 16, 2011
No. 10-14187 JOHN LEY
Non-Argument Calendar CLERK
________________________

Agency No. A96-486-390

FARRUKH BOBOKALONOV,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________

(May 16, 2011)

Before BARKETT, WILSON and FAY, Circuit Judges.

PER CURIAM:
 Farrukh Bobokalonov, a native of Tajikistan and citizen of Russia, petitions

for review of the denial of his application for asylum, withholding of removal

under the Immigration and Nationality Act (“INA”), and relief under the

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment

or Punishment (“CAT”). 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.16. He

argues, first, that his administrative remedies with respect to the CAT claim should

be deemed exhausted and, thus, we should exercise jurisdiction to review the

merits of the claim. He further argues that the Board of Immigration Appeals’s

(“BIA”) adverse credibility determination was not supported by substantial

evidence.1 For the reasons set forth below, we dismiss the petition with respect to

the CAT claim and deny the petition with respect to the asylum and withholding-

of-removal claims.

I.

Bobokalonov entered the United States in May 2002 on a J-1 exchange

visitor visa. In 2006, he was served with a Notice to Appear alleging that he had

1
In addition, Bobokalonov argues that the BIA incorrectly held that the REAL ID Act of
2005 applied to his claim and, thus, incorrectly applied the REAL ID Act’s totality-of-the
circumstances standard to his credibility determination rather than a heart-of-the-claim standard.
Bobokalonov is correct that his claim is not governed by the REAL ID Act, which became effective
in May 2005, approximately two years after he filed his application. See Pub. L. No. 109-13,
§ 101(h)(2), 119 Stat. 305. Yet, as discussed below, Bobokalonov’s credibility determination
satisfies either standard. Therefore, the BIA’s misstatement of the law was harmless, and we decline
to address the novel question of whether the totality-of-the-circumstances or heart-of-the-claim
standard should apply to claims initiated prior to the effective date of the REAL ID Act.

2
overstayed his visa and charging him under INA § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B). He admitted the allegations and the Immigration Judge (“IJ”)

sustained the charge of removability.

In 2003, Bobokalonov applied for asylum on the basis of his religion. He

stated that he was born in Tajikistan and was Muslim by birth, though he did not

practice the religion. He alleged that his father had refused to fight on the side of

either of two Muslim groups during Tajikistan’s civil war in the 1990s, so the

groups put the Bobokalonov family on a list of people to be killed. The family

obtained refugee status in Russia in 1991. However, the people from Tajikistan

had found the family in Russia and were trying again to kill them. In the past few

years, people had come to the family’s house in Russia and shot at it with various

kinds of weapons, but no one had been killed yet.

In 2006, Bobokalonov prepared a typed statement in support of his asylum

application. He stated that he and his family lived in Tajikistan until 1992, the

year in which civil war broke out. The war was characterized by bloody revenge,

vendettas, and “liquidation” of political figures and their families. A mullah with

power in the government made a list enumerating all active political figures and

members of two opposition parties, who were denounced as enemies of the people.

The opposition was based in the Kuibishev district, where Bobokalonov’s family

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lived, and his uncle, Anvar, was active in one of the opposition groups. Anvar’s

activity caused him and his relatives, including Bobokalonov’s family, to be

placed on the mullah’s list. In May 1992, the entire extended family left for

Dushanbe, the capital. When Anvar checked Bobokalonov’s grandmother’s house

to make sure everyone had left, he found that the house had been attacked.

Mirrors were broken and the walls had been shot with guns. After arriving in

Dushanbe, Anvar left in search of more family members. After hearing nothing

from him for eight years, Bobokalonov’s family learned that Anvar had migrated

to Afghanistan and had been killed when trying to return home to Tajikistan. As

the war spread throughout Tajikistan, the family had no choice but to migrate to

Russia in December 1992. The government forces eventually won the civil war,

and the opposition members and the people on the mullah’s list became social

outcasts who had difficulty finding work.

Bobokalonov further stated that his mother was unable to find employment

in Russia, and the benefits his father received as a forced immigrant were not

enough to support the entire family. After graduating from high school,

Bobokalonov moved to a large city to attend the university. There, aggressive

gangs of teenage radicals had real power and the support of the general

population. Those groups were very dangerous to immigrants from Central Asia.

4
One of the most serious extremist groups, the skinheads, had huge support among

young people. When Bobokalonov had the opportunity to travel to the United

States, he took it immediately. He added that, in May 2005, his sister was cruelly

beaten at a bus station. The only explanation given by the participants was that

one of the men could not find a job because of “this kind of people.”

In support of his application, Bobokalonov submitted the U.S. State

Department’s 2008 Country Report on Russia, which stated that there was some

governmental discrimination and widespread societal discrimination, as well as

racially motivated attacks, against ethnic minorities and dark-skinned immigrants

or guest workers. There was a steady rise in xenophobic, racial, and ethnic attacks

and hate crimes, particularly by skinheads, nationalists, and right-wing extremists.

The report particularly described violence and discrimination against Tajik

workers and other immigrants from Central Asia and the Caucasus, and the fact

that police often failed to record infractions against minorities or to issue a written

record to the alleged perpetrators.

At the asylum hearing, Bobokalonov testified that his mother and older

sister were residing in the United States, whereas his younger brother and sister

remained in Russia. He stated that it was dangerous for him to be in Russia due to

“a series of events” that had happened there. He testified that he was nine years

5
old in 1992 when the family immigrated from Tajikistan to Russia. His uncle was

active in politics, and his father helped his uncle. The family left Tajikistan

because of the civil war, and because oppression of the opposition made it

dangerous for his uncle and the family to stay. Bobokalonov became a Russian

citizen and carried a Russian passport. He did not want to return to Russia

because of the nationalist groups that surfaced while he was in high school. He

had experienced physical fights and violence, which did not have any

consequences for the perpetrators. He had to go to the hospital at least five times.

He testified that he experienced the first violent incident in 1998, when he

was in tenth grade. He was leaving school when a large group of people on the

street approached him and started asking questions about his mother in order to

provoke a fight. He recognized three fellow students who were participants in the

new skinhead movement. The people hit him in the face and elsewhere on his

body, knocking him off his feet. He did not seek treatment after this incident, and

he did not report it to the authorities, as he thought it was just an ordinary fight.

In February 1999, when Bobokalonov was in eleventh grade, people beat

him, insulted him, and said that it was high time for him to go back to his

motherland. He was hospitalized for one or two days for a concussion. He said

that he reported the incident to the authorities and that some other fights happened

6
in the presence of authorities. When he asked authorities whether they could help

and whether he had grounds to open up a case, they would tell him that the

criminal had disappeared and could not be found. The fights continued and he had

to seek treatment at hospitals, but the police refused to protect him.

Bobokalonov also recalled an occasion in 2000, just before he enrolled at

the university, when people pushed him off a staircase. His leg was not broken,

but it was very seriously bruised and required an operation. He was in the hospital

for two days and had to stay at home for two or three weeks. He reported the

incident to the police, but he was told that there was no criminal offense because

he could have merely fallen off the staircase. He testified that these were the

“most vivid” incidents, but “there were too many incidences of oppression and

physical violence” to be able to enumerate them. He constantly heard people

talking about him, either in class or on the street, and saying that it was time for

him to “go back.”

Bobokalonov added that, when he was in high school, the skinhead

movement was only just starting and skinheads treated the movement like a hobby

or lifestyle. Around the time he went away to university, skinhead groups became

more serious and organized. There was no violence directed at his parents. Other

members of his family got into fights, but none as serious and traumatic as he had

7
experienced during high school. He was afraid to go back to Russia because he

did not think he would survive for a month, due to the increase in armed, officially

registered groups that seek to purge Russia of immigrants from Central Asia.

Bobokalonov further testified that his younger sister, Madina, worked as an

interpreter in Russia. Because she was hired for that position over other

candidates who belonged to skinhead groups, she was attacked in the street as she

left a class at the university. She was beaten and suffered serious injuries,

including a concussion, which required her to be hospitalized briefly. When

security guards arrived at the scene, the attackers told the guards that Russians do

not have jobs because of people like Madina. Bobokalonov also said that his

brother, a professional chess player, competed in a tournament for the opportunity

to come to the United States. His brother defeated a player who belonged to a

nationalist group. Because he had deprived that player of the trip, the brother was

beaten severely and his kidneys were injured. He was hospitalized for two weeks.

When asked on cross-examination why he had not mentioned the attacks

and hospitalizations in his original asylum application, Bobokalonov said that the

statement was written down by a paralegal. He told his story to the paralegal, who

just wrote what the paralegal thought was important. Bobokalonov acknowledged

that he speaks fluent English himself, so he would have known what he was

8
submitting with the application, but he said that he signed it without reading it

because he assumed that the paralegal had written down everything he said. He

indicated that he had prepared the typed supplemental statement, which he took to

his asylum interview, by himself.

Bobokalonov reiterated that his first beating occurred during high school.

He sought medical treatment by himself for the attacks during high school, but an

attack at the university was the first occasion that required others to take him to a

hospital. His longest period of hospitalization occurred in Winter 2002. The 2002

incident was the main reason that he took part in the exchange program. As he

walked from the university to a train station, he went through an underground

crossing, where groups of people blocked his way and asked him questions that

were intended to provoke a fight. During the fight, he suffered some sort of brain

injury. He did not remember how he got to the hospital, but he knew “they” took

him there. He spent approximately a month in the hospital.

Bobokalonov stated that his brother’s victory in the chess tournament was

only a pretext for the beating. If someone else had won, that person would not

have been beaten. He added that the family began to discuss moving back to

Tajikistan in 1994 or 1995. News of Anvar’s death in 2001 caused the family to

decide not to return to Tajikistan. Bobokalonov added that he cannot return to

9
Tajikistan because, during the civil war, two Russian peacekeeping divisions were

shot by government troops. Since that time, relationships between the countries

and within Tajikistan had deteriorated.

Bobokalonov testified that he was in regular contact with his mother and

older sister, who are in the United States, but that he had not asked them to write

letters describing what happened to him in Russia. He said that he had tried for

six years to obtain copies of his medical records, but that the older records did not

exist because a Russian citizen obtains a new medical-history booklet when he

moves from one city to another. He had obtained a note or certificate that he was

beaten while at the university, but he had not brought that note with him to the

United States and it was problematic to obtain a copy. Whenever he had tried to

file a police report or to take legal action against his attackers, he was always told

that there was no criminal offense or that he should go back to his country.

The IJ noted that the bulk of the typed statement discussed the Tajikistan

civil war, and he asked why the statement did not mention any of the incidents of

beatings by skinheads. Bobokalonov said that the statement would have been six

or seven pages long, and it was simpler just to tell the asylum officer about those

incidents. The IJ also noted that Bobokalonov had told the officer that he had a

copy of a newspaper report describing his younger sister’s beating, and that the

10
officer had given him time to provide a copy, but Bobokalonov had not done so.

Bobokalonov told the IJ that the officer had given him time to produce his medical

records, but that the central medical facility had said they would need time to

search the archive. He also said that the newspaper report about his sister was

available online, as were the many comments on the article that proved the attitude

of Russians toward Central Asian immigrants, and that he could print out a copy

of the article at any time.

The IJ denied all of Bobokalonov’s requests for relief and ordered him

removed to Russia, based on the finding that Bobokalonov’s testimony was

incredible. The IJ noted major discrepancies among Bobokalonov’s asylum

application, supplemental typed statement, asylum interview, and testimony. He

did not find it reasonable that Bobokalonov simply did not think it necessary to

mention the beatings in the statement as long as he mentioned them during the

interview and in court, and Bobokalonov had told the asylum officer and IJ that

the application was complete and correct. It was not reasonable that Bobokalonov

would not have told either the asylum officer or the court that he had deliberately

omitted from his application all of the information about the alleged attacks.

Further, Bobokalonov had told the asylum officer that he “was beaten a bunch and

it was no big deal,” and that he “did not pay attention because it was a long time

11
ago.” This explanation was not reasonable, but it suggested that Bobokalonov did

not have much fear of returning to Russia. The IJ added that corroborating

evidence “would have been helpful” in light of the weakness of Bobokalonov’s

testimony, but that he had failed to provide such evidence, and his testimony

regarding his alleged hospital stays lacked specific detail about his injuries and the

treatments he received.

On appeal, Bobokalonov argued pro se that he had testified credibly and,

thus, had established past persecution. He asked the BIA to grant him asylum or

withholding of removal under the INA.

The BIA stated that Bobokalonov’s testimony was insufficiently detailed,

consistent, or believable to provide a plausible and coherent account of the basis

for his fears and, thus, required corroborating evidence. It referred to the IJ’s

finding of a lack of detail in Bobokalonov’s testimony about his hospitalizations,

including the treatment he had received and the injuries he had suffered. It found

that this cast doubt on the credibility of his claim that he had suffered violence in

the past or would suffer violence in the future. It further noted the inconsistencies

between the original, handwritten application and statement, the typed

supplemental statement, the asylum interview, and the testimony on events that

were central to Bobokalonov’s claim. In particular, it noted that Bobokalonov’s

12
original application claimed only a fear of returning to Tajikistan. His

supplemental statement primarily discussed a fear of returning to Tajikistan, and it

only briefly mentioned his fear of the Russian skinheads without suggesting that

he had been attacked in Russia. By contrast, he had told the asylum officer that he

was physically attacked by skinheads 50 times. The BIA agreed with the IJ that it

was not reasonable that Bobokalonov would have omitted information about the

attacks from his statements simply because he intended to discuss his fear in the

interview and in his testimony. The BIA also agreed that it did not seem

reasonable that Bobokalonov would have failed to tell either the asylum officer or

the IJ that he had deliberately omitted all of those details.

Additionally, the BIA found that Bobokalonov had failed to present

sufficient corroborating evidence in support of his claim. He had not presented

the alleged newspaper article about the attack on his younger sister, copies of his

medical records, or statements by his mother and older sister, with whom he was

in constant contact. Accordingly, he had not established eligibility for asylum or

withholding of removal. Finally, the BIA concluded that Bobokalonov had not

shown that he was more likely than not to be tortured by or with the acquiescence

of the Russian government.

II.

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 Absent a cognizable excuse or exception, we lack jurisdiction to review an

argument unless the petitioner has first exhausted his administrative remedies. See

Amaya-Artunduaga v. U.S. Attorney Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

Where the BIA addresses an issue sua sponte that was not raised in the alien’s

notice of appeal or supporting brief, “we cannot say the BIA fully considered the

petitioner’s claims, as it had no occasion to address the relevant arguments.” Id. at

1250-51. Accordingly, we lack jurisdiction to review such arguments. See id.

Bobokalonov’s appeal to the BIA argued only that he had proved his claims

for asylum and withholding of removal under the INA. He did not suggest that he

had similarly proved his eligibility for CAT relief. Therefore, he failed to exhaust

his administrative remedies with respect to the denial of CAT relief. See Amaya-

Artunduaga, 463 F.3d at 1250-51. Although Bobokalonov asks us to depart from

Amaya-Artunduaga, we cannot do so unless that case is overruled by the Supreme

Court or by this Court sitting en banc. See De la Rosa v. U.S. Attorney Gen., 579

F.3d 1327, 1337 n.14 (11th Cir. 2009), cert. denied, 130 S.Ct. 3272 (2010).

Accordingly, we lack jurisdiction to review his claim for CAT relief.

III.

We review the BIA’s decision, except to the extent that the BIA expressly

adopts the IJ’s opinion or relies upon his reasoning. Al Najjar v. Ashcroft, 257

14
F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA wrote a separate opinion that

concurred with the IJ’s opinion but did not rely upon it. Thus, we review only the

BIA’s decision. Credibility determinations are reviewed under the substantial-

evidence test, Chen v. U.S. Attorney Gen., 463 F.3d 1228, 1230-31 (11th Cir.

2006), under which “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,”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). “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. at 1027 (quotation

marks omitted). “We will not reverse unless the record compels a contrary

conclusion.” De Santamaria v. U.S. Attorney Gen., 525 F.3d 999, 1006 (11th Cir.

2008).

To establish eligibility for asylum based on past persecution, the applicant

must prove (1) that he was persecuted, and (2) that the persecution was on account

of a protected ground. Id. at 1007. To meet the more stringent standard for

withholding of removal under the INA, the alien must show that his “life or

freedom would be threatened” in the country of removal on the basis of a

protected ground. Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1232 (11th

Cir. 2005). “The alien bears the burden of demonstrating that it is more likely than

15
not [he] will be persecuted or tortured upon being returned to [his] country.” Id.

(quotation marks omitted). An alien who cannot meet the standard for asylum

generally cannot satisfy the higher standard for withholding of removal. Id. at

1232-33.

Credible, uncorroborated testimony can be sufficient to satisfy the

applicant’s burden of proof of eligibility, whereas an adverse credibility

determination alone can be sufficient to support a denial of asylum. Ruiz v. U.S.

Attorney Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). Once the factfinder has

made an adverse credibility determination, the applicant bears the burden of

showing that the finding was not supported by specific, cogent reasons or was not

based on substantial evidence. Id. If the applicant produces evidence in addition

to his otherwise incredible testimony, the factfinder has a duty to review that

evidence. Id. The weaker the applicant’s testimony, the greater the need for

corroborating evidence. Yang v. U.S. Attorney Gen., 418 F.3d 1198, 1201 (11th

Cir. 2005).

We may not substitute our judgment for that of the factfinder when

reviewing credibility findings. Ruiz, 440 F.3d at 1255. “Indications of reliable

testimony include consistency on direct examination, consistency with the written

application, and the absence of embellishments.” Id. We have held that an

16
adverse credibility determination was supported by substantial evidence where the

applicant testified implausibly as to attacks on his home, there were numerous

inconsistencies among the asylum application, testimony, and documentary

evidence, and he failed to mention “a significant part of his claim” in his asylum

application. D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 819 (11th Cir.

2004).

Bobokalonov’s 2003 asylum application explicitly stated that he sought

asylum solely on the basis of religion, specifically his Muslim heritage. It alleged

that, as a result of his father’s refusal to fight with either Muslim faction in the

civil war, the family was placed on a list of people to be killed. He claimed that

people from Tajikistan had recently found the family in Russia and resumed the

attempt to kill them.

In his 2006 typed supplemental statement, Bobokalonov alleged that his

uncle, Anvar, was active in the opposition, and it was Anvar’s political activity

that caused the family to be placed on the enemies list. The typed statement

described the destruction of his grandmother’s former home shortly after the

family’s evacuation for the capital, the family’s eventual flight to Russia from the

spreading civil war, and his parents’ difficulty in supporting the family in Russia.

The statement briefly mentioned that, in the city where his university was located,

17
aggressive groups of nationalists and skinheads had power and support, especially

among young people, and that his sister was beaten at a bus station in May 2005

because one of the attackers blamed “this kind of people” for his inability to find a

job.

At the 2009 asylum hearing, Bobokalonov testified that Anvar was active in

Tajikistan politics, and that his father helped Anvar in those endeavors. He did

not mention the civil war except to say, on cross-examination, that he could not

return to Tajikistan because two Russian peacekeeping divisions were shot by

Tajikistan troops during the war. He stated that he was afraid to return to Russia

because of the nationalist groups that had surfaced while he was in high school,

which sought to purge Central Asian immigrants. He said that he had to go to the

hospital at least five times due to physical altercations with nationalists, and he

described the three “most vivid” of those incidents, all of which occurred while he

was in high school or just before he left for university. He noted briefly that the

skinhead groups had grown in criminality and power around the time he went

away to university. He described the attack on his younger sister as specific

retribution for having secured the interpreter position over other candidates who

happened to be skinheads, and he claimed for the first time that his brother had

been attacked for defeating a chess opponent who also happened to belong to a

18
nationalist group. He indicated that both his brother and his sister suffered serious

injuries that required hospitalization. On cross-examination, he mentioned for the

first time that he was attacked at the university in 2002 and was hospitalized for a

month due to a brain injury. He described this incident as the main reason that he

took part in the exchange program that brought him to the United States.

Thus, over the course of the six-year application process, and within

Bobokalonov’s testimony on the day of the hearing, the asserted grounds for his

asylum claim and his evidence in support of that claim changed dramatically. His

assertion that he signed the paralegal’s work on the original application without

reading it is an unpersuasive explanation for the application’s complete failure to

assert a claim based on his Tajik nationality or to mention any violence by Russian

nationalists, including the 2002 attack that he described as his main reason for

leaving the country. It also fails to explain the change in the purported reasons for

his family’s presence on the enemies list and their flight to Russia, or to explain

why he did not mention, at any later point in the proceedings, the purported attack

on the family’s Russian home by Tajik enforcers of the list. Furthermore, the

inconsistencies among the application, typed statement, and testimony went to

issues that were central to Bobokalonov’s claim. Accordingly, substantial

evidence supports the BIA’s finding that Bobokalonov’s testimony was incredible.

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See Chen, 463 F.3d at 1230-31; D-Muhumed, 388 F.3d at 819.

The incredibility of Bobokalonov’s testimony created a great need for

corroborating evidence. See Yang, 418 F.3d at 1201. He introduced a copy of the

Country Report, which generally verified that Russian nationalists have engaged

in violence toward Central Asian immigrants, but he did not introduce any

corroboration of his personal experiences. He stated only that the newspaper

report about the attack on his sister was available online, and that when he asked

for copies of his medical records, he was told that the archives would need to be

searched. He did not explain why six years had been an insufficient amount of

time to produce any of those documents, nor did he explain why he failed to obtain

supporting statements from any of his family members. As Bobokalonov did not

support his application with any evidence other than his incredible testimony and

the general description of country conditions in the Country Report, the record

does not compel the conclusion that Bobokalonov met his burden of proof of

eligibility for asylum or withholding of removal. See De Santamaria, 525 F.3d at

1006; Ruiz, 440 F.3d at 1255; Sepulveda, 401 F.3d at 1232-33.

For the foregoing reasons, we dismiss the petition as to the CAT claim and

deny the petition as to the asylum and withholding-of-removal claims.

DISMISSED IN PART AND DENIED IN PART.

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