Emdadulhoque Bhuiyan v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 10, 2005
No. 03-12643
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency Docket Nos. A29-648-832,
A29-648-833

EMDADUL HOQUE BHUIYAN,
FATIMA KHATUN, et al.,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

No. 04-10295
Non-Argument Calendar
________________________

Agency Docket Nos. A29-648-832,
A29-648-833

EMDADUL HOQUE BHUIYAN,
FATIMA KHATUN,

Petitioners,
versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

Petitions for Review from Decisions
of the Board of Immigration Appeals
_________________________

(May 10, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Emdadul Hoque Bhuiyan (hereinafter “Emdadul”), Fatima Khatun

(hereinafter “Fatima”), and their children, Mojana Hoque Bhuiyan and Farana

Hoque Bhuiyan (hereinafter collectively referred to as “the petitioners”), through

counsel, petition for review of the decision of the Board of Immigration Appeals

(“BIA”) affirming the immigration judge’s (“IJ’s”) denial of their application for

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”). Additionally, Emdadul and Fatima petition for review of the BIA’s order

denying their motion to reopen their removal proceedings for consideration of

eligibility for relief under the United Nations Convention Against Torture and

Other Cruel, Inhumane or Degrading Treatment or Punishment (“CAT”).

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In an oral decision following the removal hearing, the IJ (1) found that

Emdadul’s testimony was not credible; (2) criticized the petitioners’ failure to

produce any significant evidence corroborating the substance of their allegations;

and (3) concluded that the petitioners had failed to meet their burden of proving a

well-founded fear of future persecution on account of a protected ground. After

the BIA affirmed the IJ’s decision, without opinion, the petitioners filed a timely

petition for review with this court. While that petition for review was pending, the

Emdadul and Fatima filed a motion with the BIA to reopen their removal

proceedings in order to allow them to apply for CAT relief. The BIA denied the

petitioners’ motion, finding that they had failed to meet their burden of

establishing a prima facie case of eligibility for CAT relief. Emdadul and Fatima

filed a timely petition for review of that decision. This court granted the

petitioners’ unopposed motion to consolidate their two pending cases.

A. Application for Asylum and Withholding of Removal under the INA

On appeal, the petitioners first argue that because Emdadul testified credibly

that he had suffered past persecution, there was no requirement that they present

corroborating evidence. According to the petitioners, because the IJ found

Emdadul’s testimony to be credible, they had met their burden of demonstrating

past persecution and were entitled to a presumption of a well-founded fear of

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future persecution, which the government failed to rebut. Additionally, citing this

court’s holding in Antipova v. U.S. Attorney Gen., 392 F.3d 1259 (11th Cir. 2004),

the petitioners argue that the IJ erred by failing to make a finding regarding past

persecution.

Because the petitioners’ removal proceedings commenced after April 1,

1997, the effective date of IIRIRA, this case is governed by the permanent

provisions of the INA, as amended by IIRIRA. Gonzalez-Oropeza v. U.S.

Attorney Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). When the BIA summarily

affirmed the IJ’s decision without opinion, the IJ’s decision became the final

removal order subject to review. See Mendoza v. U.S. Attorney Gen., 327 F.3d

1283, 1284 n.1 (11th Cir. 2003) (citing 8 C.F.R. § 3.1(a)(7), now found at 8 C.F.R.

§ 1003.1(a)(7)).

The IJ’s factual determinations are reviewed under “the highly deferential

substantial evidence test,” which requires us to “view the record evidence in the

light most favorable to the [IJ]’s decision and draw all reasonable inferences in

favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.

2004) (en banc), petition for cert. filed, (U.S. Oct. 28, 2004) (No. 04-7944). We

“must affirm the [IJ]’s decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft,

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257 F.3d 1262, 1284 (11th Cir. 2001) (quotation omitted). We may not reweigh

the evidence and may not reverse the IJ’s findings of fact unless the record

compels a contrary conclusion. See Farquharson v. United States Attorney Gen.,

246 F.3d 1317, 1320 (11th Cir. 2001). The question that we must answer is

whether the IJ’s interpretation of the evidence was reasonable, not whether

substantial evidence supports some alternative interpretation. Mazariegos v.

United States Attorney Gen., 241 F.3d 1320, 1324 (11th Cir. 2001).

The IJ’s credibility determinations are also reviewed under the substantial

evidence test. D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 818 (11th Cir.

2004). Although an alien’s credible testimony may itself be sufficient to satisfy

his burden of proof, the IJ is entitled to require corroboration where he provides

“cogent reasons” for an adverse credibility finding, and that finding is supported

by substantial evidence. See id. at 818-19. Although “an adverse credibility

determination does not alleviate the IJ’s duty to consider other evidence produced

by an asylum applicant[,] . . . [i]f the applicant produces no evidence other than his

testimony, an adverse credibility determination is alone sufficient to support the

denial of an asylum application.” Forgue v. U.S. Attorney Gen., 401 F.3d 1282,

1287 (11th Cir. 2005).

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An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has

discretion to grant asylum if the alien meets the INA’s definition of “refugee.”

INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA defines “refugee” as follows:

[A]ny person who is outside any country of such
person’s nationality or, in the case of a person having no
nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling to
return to, and who is unable or unwilling to avail himself
or herself of the protection of, that country because of
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

refugee status. Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the

alien must, with specific and credible evidence, establish (1) past persecution on

account of a statutorily listed factor, or (2) a “well-founded fear” that the

statutorily listed factor will cause such future persecution. 8 C.F.R. § 208.13(a),

(b); Al Najjar, 257 F.3d at 1287.

The inquiry as to whether an alien has a well-founded fear of future

persecution involves both an objective and subjective component. See Al Najjar,

257 F.3d at 1289. In general, the subjective prong is satisfied by the alien’s

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credible testimony that he actually fears future persecution. Id. The objective

prong requires a showing of either past persecution or “good reason to fear future

persecution.” Id. (citations and internal quotations omitted). To satisfy his burden

under this standard, an alien must present “specific, detailed facts,” demonstrating

a reasonable fear that she will be targeted for persecution on account of a

protected ground. Id. at 1287 (citations and internal quotations omitted).

After reviewing the record, we conclude that the IJ did not err in finding

that the petitioners failed to meet their burden of demonstrating eligibility for

asylum and withholding of removal under the INA. First, the IJ provided specific,

cogent reasons for discrediting Emdadul’s testimony, and those reasons were

supported by substantial evidence. Second, the corroborating evidence offered by

the petitioners would not compel a reasonable factfinder to conclude that they had

met their burden of proof. Accordingly, we deny the petition for review of the

BIA’s order affirming the IJ’s order denying their application for asylum and

withholding of removal.

B. Motion to Reopen

The petitioners next argue that BIA erred by denying their motion to reopen

removal proceedings in order to apply for CAT relief. According to the

petitioners, the BIA erroneously required them to prove that they would be

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subjected to torture if they returned to Bangladesh. Because they had proven that

Emdadul had been tortured by the BNP on previous occasions, the petitioners

argue, they were entitled to a rebuttable presumption that Emdadul again would be

tortured if he returned to Bangladesh.

“[W]e employ a very deferential abuse of discretion standard in reviewing

the BIA's decision on a motion to reopen ‘regardless of the underlying basis of the

alien's request’ for relief.” Al Najjar, 257 F.3d at 1302 (quoting INS v. Doherty,

502 U.S. 314, 323, 112 S.Ct. 719, 725, 116 L.Ed.2d 823 (1992)). A petitioner

seeking to have his removal proceedings reopened must meet a “heavy burden,”

and the BIA may deny a motion to reopen on one of three independent grounds:

“(1) failure to establish a prima facie case; (2) failure to introduce evidence that

was material and previously unavailable; and (3) a determination that despite the

alien's statutory eligibility for relief, he or she is not entitled to a favorable

exercise of discretion.” Id. at 1301-02.

The burden of proof for an applicant seeking withholding of removal under

CAT is higher than that of an applicant seeking asylum. Id. at 1303. “In making

out a claim under CAT, ‘[t]he burden of proof is on the applicant . . . to establish

that it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.’” Id. (quoting 8 C.F.R. § 208.16(c)(2)) (alterations

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in original). “The testimony of the applicant, if credible, may be sufficient to

sustain the burden of proof without corroboration.” 8 C.F.R. § 208.16(c)(2).

[F]or an act to constitute ‘torture’ under CAT, it must be: (1) an
act causing severe physical or mental pain or suffering; (2)
intentionally inflicted; (3) for an illicit or proscribed purpose;
(4) by or at the instigation of or with the consent or
acquiescence of a public official who has custody or physical
control of the victim; and (5) not arising from lawful sanctions.

Cadet v. Bulgar, 377 F.3d 1173, 1181 (11th Cir. 2004).

Given the speculative nature of the petitioners’ claims and the almost

complete lack of corroborating evidence, we conclude from the record that the

BIA did not abuse its discretion in denying the petitioners’ motion to reopen their

removal proceedings because they failed to meet their burden of establishing a

prima facie case of eligibility for CAT relief. Accordingly, we affirm the denial of

the petitioners’ motion to reopen.

PETITIONS DENIED; AFFIRMED.