[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 27, 2009
No. 08-16431 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A079-429-213
AMMAR ABBAS ABDALLA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 27, 2009)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Ammar Abbas Abdalla, a citizen of Sudan who was born and raised in
Egypt, petitions for review of the Board of Immigration Appeals’s (“BIA”)
decision affirming the Immigration Judge’s (“IJ”) order denying him asylum,
withholding of removal, and relief under the United Nations Convention Against
Torture (“CAT”). After review, we deny the petition for review.
I. BACKGROUND
Abdalla claims he suffered past persecution and has a well-founded fear of
future persecution in Sudan. Abdalla’s persecution claims rest on a trip he says he
took with his father to Sudan in 1990. According to Abdalla, he and his father
were detained by Sudanese officials at the airport upon their arrival. Sudanese
officials took them in handcuffs and blindfolds to another location where they were
held for a period of days and beaten and interrogated because the Sudanese
officials believed Abdalla’s father had cooperated with southern rebels in Darfur.
Abdalla says that when he and his father were released, they immediately returned
to Egypt.
On October 22, 2000, Abdalla entered the United States on a nonimmigrant
visa with authorization to remain until December 24, 2001. On November 5, 2001,
Abdalla filed his asylum application and a personal statement indicating that he
feared he would be killed or imprisoned for refusing to serve in the Sudanese
2
military. The asylum application and personal statement did not mention a 1990
trip to Sudan.
In October 2003, the Department of Homeland Security issued a Notice to
Appear charging Abdalla with overstaying his visa. At an initial hearing, Abdalla
conceded removability and renewed his application for asylum, withholding of
removal and CAT relief.
Later, Abdalla submitted two additional personal statements in which he
described his 1990 trip to Sudan with his father and their detention and
mistreatment at the hands of Sudanese officials. Abdalla also submitted three
medical reports, some photographs which he asserted showed his injuries suffered
in Sudan, his birth certificate, his passport, death certificates for his parents, a
picture of him with his father, and 79 reports and newspaper articles related to
conditions in Sudan and Egypt. The administrative record also included the State
Department’s 2005 Country Reports on Human Rights Practices for Sudan and
2006 Country Reports on Human Rights Practices for Egypt.
At the asylum hearing, Abdalla testified in detail about his 1990 trip to
Sudan with his father and their detention and mistreatment by Sudanese security
officials. Judith Barnes, the asylum officer who conducted Abdalla’s initial
asylum interview, also testified. According to Barnes, Abdalla told her that,
although he held a Sudanese passport, he was born and raised in Egypt and had
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never visited or lived in Sudan. Abdalla indicated to Barnes that he was seeking
asylum because Egyptian authorities had told him that he needed to get his
Sudanese passport renewed and that he feared that, in order to do so, he would be
forced to serve in the Sudanese military. Abdalla told Barnes he had not suffered
any physical harm before coming to the United States.
Following the hearing, the IJ found Abdalla not credible and denied all
requested relief. Specifically, the IJ found that Abdalla’s “claim [was] fraught with
inconsistencies and glaring omissions” and that Abdalla “appear[ed] to have
embellished his story with repeated telling.” The IJ pointed out that although
Abdalla testified at the hearing that he and his father were detained and tortured in
Sudan, Abdalla did not mention this incident in his asylum application, his first
personal statement or his initial asylum interview with Barnes. The IJ also
identified numerous inconsistencies between Abdalla’s hearing testimony and his
second and third personal statements as to the details of the 1990 trip to Sudan,
such as: (1) Abdalla’s reasons for accompanying his father to Sudan; (2) the date
of their trip to Sudan; (3) the precise details of his and his father’s mistreatment by
Sudanese officials; and (4) the length of their detention in Sudan.
The IJ also found that Abdalla had not submitted reliable corroborating
evidence. The IJ gave only “diminished weight” to the foreign medical reports
because, inter alia, (1) the reports were unauthenticated and only reported the
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patient’s complaints without any independent medical analysis; and (2) Abdalla
had not provided information as to the doctors’ identities or qualifications or made
the doctors available for cross-examination. The IJ found that the pictures of
Abdalla’s body showed only skin discoloration and not scars as he claimed, which
did not suggest the kind of torture Abdalla described. The IJ also pointed out that
Abdalla’s passport did not indicate that he had ever been to Sudan. The IJ
determined that the only evidence that Abdalla had been persecuted in Sudan was
his own testimony and statements, which the IJ found not credible. Thus, the IJ
concluded that Abdalla had not shown past persecution or a well-founded fear of
future persecution.
Abdalla appealed to the BIA, challenging the IJ’s credibility finding. The
BIA concluded that the IJ’s adverse credibility finding was not clearly erroneous
and affirmed the IJ’s decision. The BIA noted that although Abdalla had testified
that he and his father were detained, beaten and tortured in Sudan, Abdalla did not
mention this incident in his asylum application, his first personal statement or his
asylum interview with Barnes and that Abdalla’s explanations for this
inconsistency was not convincing. The BIA also rejected Abdalla’s argument that
the IJ’s credibility finding was an implicit frivolity determination for which the IJ
had failed to follow the proper procedures. Abdalla filed this petition for review.
II. DISCUSSION
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On appeal, Abdalla argues that the IJ’s adverse credibility finding is not
supported by substantial evidence.1 An asylum applicant has the burden to show,
with specific and credible evidence, either past persecution or a “well-founded
fear” of future persecution. Forgue, 401 F.3d at 1286-87. If the IJ finds an asylum
applicant not credible, the IJ must make an explicit adverse credibility finding and
offer “specific, cogent reasons” for the finding. Id. at 1287. “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).2 Although uncorroborated but credible
testimony may be sufficient to demonstrate asylum eligibility, “[t]he weaker an
applicant’s testimony, . . .the greater the need for corroborative evidence.” Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “Once an adverse
credibility finding is made, the burden is on the applicant alien to show that the IJ’s
1
Where, as here, the BIA adopts the IJ’s reasoning, we review the IJ’s and the BIA’s
decisions. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Credibility
determinations are reviewed under the substantial evidence test, and we will overturn them only
if the record compels it. Forgue v U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir. 2005).
2
The REAL ID Act of 2005 amended the Immigration and Nationality Act (“INA”) to
permit an adverse credibility determination based on inconsistencies that do not go “to the heart
of the applicant’s claim.” See Pub. L. No. 109-13, § 101(a)(3), (d)(4)(C), 119 Stat. 231, 303,
304-05 (codified at 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C) (effective May 11, 2005).
Because Abdalla’s application was filed before May 11, 2005, the REAL ID Act’s changes do
not apply to his claims. Nonetheless, we need not resolve whether adverse credibility
determinations in pre-REAL ID Act cases must go to the heart of the claim because the
inconsistencies identified by the IJ and the BIA in this case relate directly to Abdalla’s claims of
persecution.
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credibility decision was not supported by ‘specific, cogent reasons’ or was not
based on substantial evidence.” Forgue, 401 F.3d at 1287.
Here, the IJ and the BIA gave specific, cogent reasons for finding Abdalla
not credible, and those reasons are supported by the record. Specifically, the IJ and
the BIA both pointed out that, although Abdalla testified at the hearing that he and
his father had been detained, interrogated and beaten during a 1990 visit to Sudan,
he failed to mention this incident in his asylum application or his first personal
statement or his asylum interview with Barnes. Instead, during his asylum
interview, Abdalla denied ever visiting Sudan and claimed he had not been
physically harmed before arriving in the United States. Although Abdalla
explained that a friend advised him not to mention the 1990 Sudan incident in his
application or interview, we cannot say the explanation compels the conclusion
that his other testimony about Sudan is credible.
Furthermore, Abdalla’s explanation does not address the other
inconsistencies the IJ noted between Abdalla’s hearing testimony and his second
and third personal statements as to what happened during the 1990 Sudan trip. For
instance, although Abdalla testified that Sudanese officials hit him while they
traveled in the car from the airport to the place of detention, he did not include this
fact in his second or third personal statements. Abdalla’s second personal
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statement indicated that his father was strip searched and then severely beaten in
front of him, facts not mentioned in his third personal statement or at the hearing.
Abdalla’s story also changed with regard to precisely how he was
mistreated. For example, Abdalla’s second personal statement did not mention any
electrical shocks. His third personal statement indicated that Abdalla received
electrical shocks on two separate days. However, Abdalla testified at the hearing
that he was shocked only on the fifth day. Similarly, the manner in which he
claimed to have been tied up while being beaten and shocked changed. In his third
personal statement, he was suspended from the ceiling with his torso and head on
the floor. At the hearing, Abdalla said he was suspended by his right leg and the
rest of his body lay on the floor. In his second personal statement, he was tied by
his right leg; in his third personal statement, he was tied by his right hand and left
ankle; and at the hearing he said he was tied by his arms and legs.
Abdalla was also inconsistent about when and why he went to Sudan and
how long he stayed. According to Abdalla’s third personal statement, Abdalla
traveled to Sudan to settle permanently. He arrived in Sudan on January 17, 1990
and left five days later, on January 22, 1990. However, Abdalla testified at the
hearing that he only planned to visit Sudan, arrived on December 17, 1990 and was
then was detained for 37 days.
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For all of these reasons cumulatively, substantial evidence supports the IJ’s
adverse credibility finding.3 Furthermore, Abdalla does not argue that the other
evidence in the record, alone, compels a conclusion that he was persecuted or has a
well-founded fear of future persecution. Because Abdalla failed to establish
eligibility for asylum, he likewise failed to establish eligibility for withholding of
removal and CAT relief. See Al Najjar, 257 F.3d at 1292-93, 1302-04.
PETITION DENIED.
3
Although these inconsistencies are sufficient to support the IJ’s adverse credibility
finding, we also reject Abdalla’s challenge to the IJ’s finding that Abdalla’s documentary
evidence was not sufficiently corroborative. The IJ’s decision to give little weight to Abdalla’s
medical reports and photographs is supported by substantial evidence. We also find no merit to
Abdalla’s argument that the IJ’s adverse credibility finding constituted an implicit frivolity
finding pursuant to 8 U.S.C. § 1158(d)(6) and 8 C.F.R. § 1208.20. See Scheerer v. U.S. Att’y
Gen., 445 F.3d 1311, 1317-18 (11th Cir. 2006) (concluding that an adverse credibility finding
does not equate to a finding that an asylum application is frivolous). Accordingly, the IJ did not
deprive Abdalla of due process by failing to follow the procedures for making such a finding.
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