[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 22, 2008
No. 07-12547 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-271-060
FERDINANT SHAMO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 22, 2008)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Ferdinant Shamo, proceeding pro se, seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming and adopting the Immigration
Judge’s (“IJ”) removal order and denial of his applications for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), and
relief under the United Nations Convention on Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R.
§ 208.16(c). Shamo argues that the BIA and IJ erred in finding his testimony not
to be credible and denying his applications for asylum, withholding of removal,
and CAT relief. Shamo also claims that the BIA erred by failing to review the
record thoroughly.
We “review only the [BIA]’s decision, except to the extent that it expressly
adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
Because the BIA expressly adopted the IJ’s decision and also wrote a decision
itself, we review both the BIA’s decision and the IJ’s decision. See Najjar, 257
F.3d at 1284.
We review credibility determinations under the substantial evidence test, and
“may not substitute [our] judgment for that of the BIA with respect to credibility
findings.” D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 818 (11th Cir. 2004).
Likewise, we also review the IJ’s findings of fact under the substantial evidence
test, and must affirm the IJ’s decision “if it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Antipova v. U.S.
Attorney Gen., 392 F.3d 1259, 1261 (11th Cir. 2004) (quotation omitted).
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I. Adverse Credibilty And Asylum
The IJ’s credibility determination must be “clean,” which means that the IJ
must state clearly whether he believed the petitioner. Yang v. U.S. Attorney Gen.,
418 F.3d 1198, 1201 (11th Cir. 2005). Furthermore,
the IJ must offer specific, cogent reasons for an adverse credibility
finding. Once an adverse credibility finding is made, the burden is on
the applicant alien to show that the IJ’s credibility decision was not
supported by specific, cogent reasons or was not based on substantial
evidence. A credibility determination, like any fact finding, may not
be overturned unless the record compels it.
Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (citations and
quotations omitted). In this case, Shamo has failed to demonstrate that the IJ’s
credibility decision was not supported by substantial evidence and, therefore, we
will not overturn it. See Forgue, 401 F.3d at 1287. Accordingly, because the IJ
found that Shamo was not credible in his testimony to support his eligibility for
asylum and the documents he presented likewise do not compel a finding of
eligibility, the petition for asylum must be denied.
II. Withholding of Removal and CAT Relief
To qualify for withholding of removal under the INA, an alien must show
that if returned to his country, the alien’s life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or
political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). “An alien bears the
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burden of demonstrating that he more-likely-than-not would be persecuted or
tortured upon his return to the country in question.” Mendoza v. U.S. Attorney
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). However, as in asylum cases, the
alien does not need to prove that he or she would be “singled out” for persecution
if (1) there is a “pattern or practice of persecution” against similarly situated
individuals and (2) his or her inclusion within that group of individuals makes it is
more likely than not that his or her life or freedom would be threatened if returned
to that country. See 8 C.F.R. § 208.13(b)(2)(iii). Generally, when an alien fails to
meet the “well-founded fear” standard for establishing asylum eligibility, the alien
cannot establish the higher burden for withholding of removal. Najjar, 257 F.3d at
1292-93.
To be entitled to relief under CAT, an applicant must establish that it is
“more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2). “Torture” is defined as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person 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). The burden of proof for an applicant seeking relief under
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CAT, like that for an applicant seeking withholding of removal under the INA, is
higher than the burden imposed on an asylum applicant. Najjar, 257 F.3d at 1303.
An individual who fails to establish a claim of asylum on the merits necessarily
fails to establish eligibility for CAT relief. Forgue, 401 F.3d at 1288 n.4.
Because Shamo failed to satisfy his burden of showing either past
persecution or a well-founded fear of future persecution in order to establish his
eligibility for asylum, he also has failed to satisfy the higher burden required for
withholding of removal. See Najjar, 257 F.3d at 1292-93. Likewise, Shamo’s
failure to carry his asylum and withholding of removal burdens shows that he also
has not met the burden for CAT relief. See Forgue, 401 F.3d at 1288 n.4.
Therefore, we deny the petition as to Shamo’s applications for withholding of
removal and CAT relief.
III. BIA’s Consideration of the Record
We have indicated that the BIA’s failure to review the facts of the case
before it may violate a petitioner’s due process rights. See Mendoza, 327 F.3d at
1289 (holding that the BIA’s summary affirmance procedure does not violate an
alien’s due process rights because the fact “[t]hat a one-sentence order was entered
is no evidence that the BIA member did not review the facts of [the alien’s] case”).
In this case, however, there is no evidence indicating that the BIA did not review
the record. In fact, the BIA’s written opinion discussing the facts of Shamo’s case
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indicates that the BIA did review the record. Therefore, we find this claim
meritless.
PETITION DENIED.
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