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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15780
Non-Argument Calendar
________________________
Agency No. A087-661-661
GULIIA TURGUNBEKOVNA TABALDIEVA,
Petitioner,
versus
US ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 1, 2013)
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Before TJOFLAT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Petitioner, Gulia Tabaldieva, a citizen of Kyrgyzstan, was admitted to the
United States on or about June 1, 2009, on a J-I non-immigrant visa, with
permission to remain until September 24, 2009. She remained here without
authorization, and on October 7, 2009 filed an application for asylum with the
Department of Homeland Security (“DHS”).
In her application, Petitioner asserted that she was physically attacked in
Kyrgyzstan on three occasions because of her political opinion. The first attack
occurred on October 15, 2008. After finishing her classes at university, Petitioner
met two classmates, Kristina and Marat, to go to the university library. The library
was closed, so Marat arranged to have his brother take them to the State Library.
Marat’s brother and two men picked them up, but took them to a house, instead of
the library. At this point, Marat disappeared, and the three men forced Petitioner
and Kristina into the house, where they beat them and Petitioner became
unconscious. Both women were in a hospital for two weeks. Petitioner’s parents
filed a complaint against the attackers, and the court required Marat’s brother to
pay a fee. Petitioner’s parents persuaded her to write an article about the attack
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for the newspaper. The article was published on February 1, 2009, and
criticized local law enforcement for failing to investigate the incident and for being
corrupt.
The second attack occurred on February 3, 2009. Two men dressed like
police officers came to Petitioner’s home and took her to another location, where
they questioned her about the article, convinced her that the police were not
corrupt as she claimed, and told her not to write any more articles. They caused
her “a lot of harm,” so she went to a hospital and did not return to university for
four weeks.
The third attack occurred on March 7, 2009. At 7:00 p.m., as she was going
home, a car approached her. The men in the car, one being Marat’s brother, seized
her, took her to an unknown house where girls were screaming, and said they
“were going to take advantage of her. A man struck her and she lost
consciousness. She awakened in a hospital. Her parents filed another complaint
against Marat’s brother, with no result.
Following an interview on her application, the DHS asylum officer declined
to grant asylum, referred her application to an Immigration Judge (“IJ”), and
commenced removal proceedings. Petitioner conceded removability, renewed her
application for asylum, and applied for withholding of removal.
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On August 16, 2011, the IJ held a merits hearing. After hearing Petitioner’s
testimony and considering the other evidence submitted, the IJ denied her
applications for asylum and withholding of removal— concluding that her
testimony was not credible, that she failed to provide reasonably available
corroborating evidence, and that she had not met her burden for relief—and
ordered her removal to Kyrgyzstan. On October 11, 2012, the Board of
Immigration (“BIA”) affirmed the IJ’s decision based on her lack of credibility and
failure to sufficiently corroborate her claim of persecution.
Petitioner now petitions this court to review the BIA’s decision, affirming
the IJ’s denial of her application for asylum under the Immigration and Nationality
Act (“INA”) § 208, 8 U.S.C. § 1158(a), and withholding of removal under INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3). 1 In her petition for review, she argues that the
BIA erred in affirming the IJ’s adverse credibility determination, because the
ruling was not supported by substantial evidence. She also argues that the BIA
erred in affirming the IJ’s alternative ruling that she was required to and failed to
corroborate her testimony with specific evidence.
As an initial matter, our review is limited to the decision of the BIA.
Therefore, we only address the adverse credibility determination and the necessity
1
Tabaldieva included Otabek Kamilov, a citizen of Uzbekistan, as a derivative spouse on
her application. However, the couple divorced on July 2, 2012, and Kamilov is not a party to the
petition for review.
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of corroborating evidence. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1232 n.4
(11th Cir. 2006) (refusing to address the merits of a claim because the IJ’s decision
was based on an adverse credibility determination). n.1 (11th Cir. 2011).
I.
Petitioner argues that the adverse credibility determination was not
supported by substantial evidence. She testified that she was raped during the
attacks giving rise to her application, and attempts to explain the inconsistency
between this testimony and the medical records of her hospital visits after each
attack, which do not indicate that she was diagnosed with or treated for sexual
assault. She argues that it is plausible that she did not report the rapes to the
doctors for the reasons given in the U.S. Department of State 2009 Country Report
for Kyrgyzstan, which states that rapes were underreported in the country due to
psychological pressure, cultural traditions, and apathy of law enforcement. She
also asserts that the inconsistencies in her testimony were too minor to support an
adverse credibility determination.
We review only the opinion of the BIA, except to the extent that the BIA
expressly adopted the IJ’s decision. Chen, 463 F.3d at 1230. We review
credibility determinations under the substantial evidence test, reversing “only if the
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evidence compels a reasonable fact finder to find otherwise.” Id. at 1230-31
(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). A “refugee” is
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).
An applicant for asylum must provide specific and credible evidence
demonstrating past persecution or a well-founded fear of future persecution based
on a statutorily listed factor. Chen, 463 F.3d at 1231. An applicant seeking
withholding of removal must show that her “life or freedom would be threatened
. . . because of [her] race, religion, nationality, membership in a particular social
group, or political opinion” if she returned to the country in question. INA
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). An applicant must demonstrate that it is
“more-likely-than-not” that she would be persecuted upon returning to her country.
Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1277 (11th Cir. 2009).
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Under the REAL ID Act of 2005, 2 credibility determinations are based on
the totality of the circumstances, which may include inconsistencies that do not go
to the “heart of the applicant’s claim.” INA § 208(b)(1)(B)(iii), 8 U.S.C.
§ 1158(b)(1)(B)(iii). Such rulings must be supported by the record rather than
“personal perceptions” or speculation and conjecture. Tang, 578 F.3d at 1278.
The BIA may base its determination on “the demeanor, candor, or responsiveness
of the applicant,” the plausibility of the applicant’s account, the consistency
between the applicant’s statements “considering the circumstances under which the
statements were made,” the internal consistency of the applicant’s statements, and
“the consistency of such statements with other evidence of record.” INA
§ 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii).
An adverse credibility determination alone may be sufficient to support the
denial of asylum, especially if the applicant’s testimony was not supported by
corroborating evidence. Chen, 463 F.3d at 1231. However, even if the applicant is
found to be incredible, the BIA must consider all of the evidence presented by the
applicant. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). The
BIA must offer specific, cogent reasons for its ruling. Id. To challenge an adverse
credibility determination, a petitioner to this Court must show that it was not
2
The Real ID Act applies to applications, such as Tabaldieva’s, that were filed after
May 11, 2005. See Chen, 463 F.3d at 1231.
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supported by “specific, cogent reasons” or was not based on substantial evidence.
Id. The fact that the petitioner provides “tenable” explanations for the doubtful
portions of her testimony does not compel reversal, particularly in the absence of
corroborating evidence. Chen, 463 F.3d at 1233.
The BIA relied on the IJ’s specific, cogent reasons for the adverse credibility
determination. See Forgue, 401 F.3d at 1287. Moreover, the evidence on the
record would not compel a reasonable fact finder to reverse the BIA’s ruling. See
Chen, 463 F.3d at 1230-31. Petitioner’s testimony regarding the newspaper article
that she allegedly wrote criticizing law enforcement was vague, inconsistent, and
implausible. She could not recall whether she ever saw a copy of the article or
even read it, whether her name appeared as its author, whether her name appeared
in the article, or whether her family had a copy of the article. Her testimony that
she was raped during the attacks was internally inconsistent, and inconsistent with
her prior statements to an asylum officer and her medical records. Finally, she
provided details of the attacks in a June 20, 2011 affidavit and during the August
16, 2011 merits hearing, but was unable to recall any details of the attacks when
she was interviewed by a social worker during that same time period.
On this record, substantial evidence supported the BIA’s conclusion that her
testimony was not credible. Petitioner argues that the inconsistencies in her
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testimony were too minor to support the BIA’s ruling. Her argument is without
merit, because an adverse credibility determination may be based on
inconsistencies that do not go “to the heart of the applicant’s claim.” See INA
§ 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii).
In light of the adverse credibility determination, Petitioner did not
sufficiently corroborate her claim that she was persecuted on account of her
political opinion so as to meet the burden for asylum and withholding of removal.
See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); Chen, 463 F.3d at 1231.
Besides her own testimony, her father’s written statement was the only other
evidence mentioning the newspaper article that allegedly motivated a retaliatory
attack against her for her political opinion about police corruption. She also relied
on her father’s statement that she was attacked because her father sued the
Kyrgyzstani government for reinstatement of his job. However, she provided no
evidence to corroborate her father’s statement, and it is unclear how his suit related
to her political opinion.
Because of the lack of evidence corroborating the essential elements of her
claims for relief, the BIA’s adverse credibility determination was sufficient to
support the denial of asylum. See Chen, 463 F.3d at 1231. Because Petitioner did
not sustain her burden as to asylum, she also did not meet the higher burden
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required for withholding of removal. See INA § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A); Tang, 578 F.3d at 1277.
II
Petitioner argues that the BIA erred in affirming the IJ’s alternative ruling
that, assuming her testimony was credible, she was required to corroborate it by
submitting a copy of the newspaper article that she wrote on police corruption.
She asserts that she was not required to corroborate her testimony, and the burden
of proof was less than a preponderance of the evidence.
“Where the trier of fact determines that the applicant should provide
evidence that corroborates otherwise credible testimony, such evidence must be
provided unless the applicant does not have the evidence and cannot reasonably
obtain the evidence.” INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii). We
only reverse a determination regarding corroborating evidence under INA
§ 208(b)(1)(B), if “a reasonable trier of fact [would be] compelled to conclude that
such corroborating evidence [was] unavailable.” INA § 242(b)(4)(D), 8 U.S.C.
§ 1252(b)(4)(D).
Petitioner’s testimony was the only evidence presented as to the availability
of the newspaper article. She testified that she did not have a copy of the article
because police visited and searched her home in Kyrgyzstan, leaving it in a mess.
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However, she later testified that she did not know if she had ever had a copy of the
article. She said that her parents contacted the editors of the newspaper to obtain a
copy, but she did not know where the newspaper office was located or whether it
was still in operation. Her brother’s wife tried to contact a person who worked for
the newspaper and had helped publish the article, but the person had left the
country. Petitioner’s testimony alone would not compel a reasonable fact finder to
conclude that the article was unavailable. See INA § 242(b)(4)(D), 8 U.S.C.
§ 1252(b)(4)(D).
Upon review of the record and consideration of the parties’ briefs, we deny
the petition for review.
PETITION DENIED.
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