[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13560 ELEVENTH CIRCUIT
MAY 1, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A97-959-370,
A98-858-818
EDNER SMITH,
BERTHA BRUTUS SMITH,
NELLY BERLEY SMITH,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 1, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Edner Smith, his wife, Bertha Brutus Smith, and their daughter, Nelly Berley
Smith (collectively, “Petitioners”), through counsel, seek review of the decision
from the Board of Immigration Review (“BIA”), affirming the Order of the
Immigration Judge (“IJ”), finding them removable and denying their applications
for asylum, withholding of removal, and relief under the United Nations
Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”).
First, the Petitioners argue that the BIA adopted the IJ’s reasoning, and thus,
we should review the IJ’s decision. When the BIA issues a decision, we review
only that decision, except to the extent that the BIA expressly adopts the IJ’s
decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “Insofar as
the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Id.
Here, because the BIA relied upon the reasons identified in the IJ’s order, we
review both decisions. Because the BIA did not expressly adopt the IJ’s order,
however, we review only the reasons for denial given in the BIA’s order. As such,
we will not consider the Petitioners’ contention that the IJ erred by finding that he
did not suffer past persecution and did not have a well-founded fear of future
persecution. Rather, we will only review the BIA’s adverse credibility finding and
its denial of relief under the CAT.
Second, the Petitioners argue that it is more likely than not that they will be
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tortured upon return to Haiti and that the IJ’s adverse credibility finding was not
supported by substantial evidence because any inconsistencies between Mr.
Smith’s testimony, the asylum application, and Mrs. Smith’s asylum application
were minor, as the husband offered specific, plausible, and detailed testimony.
We review the BIA’s and IJ’s factual determinations under the substantial
evidence test, and we will affirm if those decisions are “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Mejia v.
U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (citation omitted). Under
the substantial evidence test, we can reverse a finding of fact by the BIA “only
when the record compels a reversal; the mere fact that the record may support a
contrary conclusion is not enough to justify a reversal of the administrative
findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
Like any finding of fact, a credibility determination may not be overturned unless
the record compels it. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005) (quotation marks and citation omitted).
If credible, an alien’s testimony alone may be sufficient to sustain his burden
of proof in establishing his eligibility for relief from removal. Id. “Conversely, an
adverse credibility determination alone may be sufficient to support the denial of
an asylum application.” Id; see also Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231
(11th Cir. 2006) (per curiam) (“An IJ’s denial of asylum relief . . . can be supported
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solely by an adverse credibility determination, especially if the alien fails to
produce corroborating evidence.”). “If the IJ explicitly determines that the alien
lacks credibility, the IJ must offer specific, cogent reasons for the finding.” Chen,
463 F.3d at 1231. “The burden then shifts to the alien to show that the IJ’s
credibility decision was not supported by ‘specific, cogent reasons’ or was not
based on substantial evidence.” Id.
Pursuant to 8 U.S.C. § 1158(b)(1)(B)(iii), as amended by the REAL ID Act
of 2005, Pub. L. No. 109-13, 119 Stat. 302, § 101(a) (2005), the IJ may find an
alien incredible based on the “totality of the circumstances” and may deny a claim
based on inconsistencies, inaccuracies, and falsehoods contained in the evidence,
without regard to whether they go to the “heart” of the claim. “Indications of
reliable testimony include consistency on direct examination, consistency with the
written application, and the absence of embellishments.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1255 (11th Cir. 2006) (per curiam).
Upon review of the record and the parties’ briefs, we discern no reversible
error. The record does not compel overturning the IJ’s and BIA’s credibility
determinations because they were supported by the totality of the circumstances,
including (1) Mr. Smith’s failure to file for asylum until he was detained for having
a fraudulent stamp in his passport notwithstanding the fact that he knew of the
asylum process before that time; (2) inconsistencies between Mr. Smith’s asylum
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application and his testimony;1 and (3) the Petitioners failure to provide any
documentation corroborating their claims. For example, the Petitioners failed to
include documentation regarding Mr. Smith’s work in Haiti or Mr. Smith’s need
for medical attention following the incident in July 2001 when Lavalas party
supporters allegedly attacked him, which forms the basis of their application. See
Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (“The weaker an
applicant’s testimony . . . the greater the need for corroborative evidence.”).
Because the Petitioners have failed to meet their burden of showing that the
adverse credibility determination was not supported by substantial evidence, that
determination is sufficient to sustain the denial of asylum, withholding of removal,
and CAT relief.
PETITION DENIED.
1
For example, Mr. Smith’s asylum application and his testimony contained different
dates with regard to when he worked at the Presbyterian and Baptist Missions and when he lived
at his Thomassin 25 address.
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