[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14905 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 31, 2012
________________________ JOHN LEY
CLERK
Agency No. A099-392-485
ALABA JEFFERY IGBINOGHENE,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 31, 2012)
Before TJOFLAT, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Petitioner Alaba Igbinoghene, a native and citizen of Nigeria, entered the
United States with a false name and with a fraudulent British passport under the
Visa Waiver Pilot program. On November 2, 2006, he applied for asylum,
withholding of removal under Immigration and Nationality Act (“INA”)
§ 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the United Nations
Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). An Immigration
Judge (“IJ”), following a hearing at which Petitioner testified and introduced
documentary evidence, denied his application in full and ordered his removal. He
appealed the decision to the Board of Immigration Appeals’s (“BIA”), and it
dismissed the appeal. He now petitions this court for review.
The IJ denied Petitioner’s application for asylum as time-barred and,
alternatively, on the merits, because he was not credible. Among other things, his
testimony was often internally inconsistent and vague, and included numerous
facts and events that he did not include in his asylum application. In appealing the
IJ’s decision to the BIA, Petitioner did not challenge the IJ’s determination that his
asylum application was untimely. Given that circumstance, we must dismiss the
part of his petition that seeks review of the timeliness of his application for
asylum. See INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). What remains for review,
then, are the BIA’s withholding of removal and CAT rulings.
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Petitioner urges us to reverse those rulings because the record before the
BIA shows (1) that it is “more likely than not” that he will be persecuted if
returned to Nigeria; thus, he is entitled to withholding of removal, and (2) that his
testimony concerning government agents harassing, beating, and detaining him, in
combination with the reports of political violence in Nigeria, establish that he is
also entitled to CAT relief.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th
Cir. 2007). When the BIA explicitly agrees with the findings of the IJ, we review
the decision of both the BIA and the IJ as to those issues. Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010). Here, the BIA issued its own decision and
explicitly agreed with several findings of the IJ. Accordingly, we review the
decisions of both the BIA and the IJ.
Factual determinations, which include credibility determinations, are
reviewed under the substantial evidence test. Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1254-55 (11th Cir. 2006). A credibility determination is due to be affirmed
“if it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. (quotation omitted). This means that we will “not
substitute [our] judgment for that of the BIA with respect to credibility findings.”
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D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). Accordingly,
to reverse a finding of fact, we must determine that the record “compels” reversal.
Ruiz, 440 F.3d at 1255 (quotation omitted). In all, we take “the record evidence in
the light most favorable to the agency’s decision and draw all reasonable
inferences in favor of that decision.” Id. at 1255 (quotation omitted).
An applicant for asylum must meet the INA’s definition of a refugee. INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). The definition of “refugee” includes:
any person who is outside any country of such person’s nationality
. . . and who is unable or unwilling to return to, and 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 . . . .
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Thus, in order to meet the
definition of a refugee, the applicant must, “with specific and credible evidence,
demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a
well-founded fear that the statutorily listed factor will cause future persecution.”
Ruiz, 440 F.3d at 1257 (quotation omitted).
Under the INA, an alien seeking withholding of removal must show that his
“life or freedom would be threatened in [his] country [of origin] because of [his]
race, religion, nationality, membership in a particular social group, or political
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opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The alien seeking
withholding of removal bears the burden of showing that it is “more likely than
not” that he will be persecuted upon returning to his country. D-Muhumed, 388
F.3d at 819 (quotation omitted). “This standard is more stringent than the
‘well-founded fear’ standard for asylum.” Id. An alien cannot meet the higher
standard for withholding of removal if he does not meet the lower asylum
standard. Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001).
To be entitled to CAT relief, an applicant must establish that it is “more
likely than not that he . . . would be tortured if removed to the proposed country.”
8 C.F.R. § 208.16(c)(2). Torture is the intentional infliction of severe pain or
suffering by, or with the acquiescence of, a person acting in an official capacity. 8
C.F.R. § 208.18(a)(1). The burden of proof for an applicant seeking relief under
CAT, like that for an applicant seeking withholding of removal, “is higher than the
burden imposed on an asylum applicant.” Al Najjar, 257 F.3d at 1303.
An applicant’s testimony, if credible, may be sufficient to sustain his burden
of proof, without corroborating evidence. Ruiz, 440 F.3d at 1255. Conversely, if
the applicant relies solely on his testimony, an adverse credibility determination
may alone be sufficient to support the denial of an application. Forgue v. U.S.
Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). If the applicant produces other
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evidence of persecution, the IJ must consider that evidence, and the IJ cannot rely
solely on an adverse credibility determination. The IJ must offer specific, cogent
reasons for an adverse credibility determination, and upon such a determination,
the applicant bears the burden of demonstrating that it was not supported by
specific, cogent reasons or that it was not based upon substantial evidence. Id. To
be considered an adverse credibility determination, the IJ or BIA must make
“clean determinations of credibility,” and state explicitly that the applicant’s
testimony was not credible. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th
Cir. 2005) (quotation omitted). The weaker the applicant’s testimony, the greater
the need for corroborating evidence. Id. Indications of reliable testimony include
consistency on direct examination, consistency with the written application, and
the absence of embellishments. Ruiz, 440 F.3d at 1255.
Under the REAL ID Act of 2005, Pub. L. No. 109-13, § 101(h)(2), 119 Stat.
302 (2005), as codified in the U.S. Code, factfinders are to consider the totality of
the circumstances when making credibility determinations. See INA
§ 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii). Those circumstances can
include the witness’s demeanor, candor, and responsiveness, the inherent
plausibility of the account, the consistency among and within all oral and written
statements and other evidence, and any inaccuracies and falsehoods in the
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statements. Id. These determinations are to be made “without regard to whether
an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
claim.” Id.
In this case, the BIA’s adverse credibility determination is supported by
specific, cogent reasons, including the inconsistency of Petitioner’s oral and
written statements, his vague and non-responsive answers to questions during his
merits hearing, and his material omissions in his asylum application of events that
formed the basis of his claims for relief. Among other things, the record supports
the BIA’s rejection of Petitioner’s argument that the IJ erred in finding that his
testimony about his participation in the Movement of Social Justice (“MOJ”) was
inconsistent with a news article describing his participation. Not only was his
testimony inconsistent with what the article stated, it was altogether internally
inconsistent and confusing. Additionally, his answers to questions about his
alleged arrests and detentions by Nigerian authorities were vague and non-
responsive. The medical records and police reports he submitted in proof of his
claim that he would be tortured if returned to Nigeria taken together only
established that he had two encounters with police, two years apart, after being
arrested for demonstrating. This evidence fell far short of supporting the
testimony he gave of beatings, harassment, and detention at the hands of the
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authorities. As the IJ properly found, the treatment he received was not so
extreme or persistent in nature as to rise to the level of “past persecution.”
In sum, substantial evidence in the record supports the agency’s adverse
credibility decision and its removal decision. The BIA’s decision is, accordingly,
PETITION DISMISSED, in part, and DENIED, in part.
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