Mohammed v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 5, 2008
No. 07-11605 THOMAS K. KAHN
________________________ CLERK

Agency No. A97-458-215

HAMED MOHAMMED,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(November 5, 2008)

Before WILSON, PRYOR and COX, Circuit Judges.

PRYOR, Circuit Judge:

The key question presented by this petition is whether an applicant for

asylum whose testimony about past persecution is incredible and who, by his own

admission, lived peaceably for three years after his military service before his
arrival in the United States conclusively proved a well-founded fear of future

persecution by presenting evidence that some other persons have been forcibly

conscripted and tortured in his native country. Hamed Mohammed, a native and

citizen of Eritrea, petitions for review of the denial of his application for asylum

and withholding of removal by the Board of Immigration Appeals. The

Immigration Judge found that Mohammed’s testimony about past persecution in

the Eritrean military was incredible because it contained inconsistencies and

implausibilities and was not corroborated by reliable evidence. The Immigration

Judge also found that Mohammed did not have a well-founded fear of persecution

because it is undisputed that Mohammed was not persecuted during the three years

that he lived and worked in Eritrea after he finished his military service. The

Board affirmed. Because substantial evidence supports the findings of the

Immigration Judge and the Board, we deny Mohammed’s petition.

I. BACKGROUND

In April 2005, Mohammed arrived in the United States as a stowaway

aboard a cargo ship. An asylum officer conducted a credible-fear interview, and

Mohammed alleged past persecution and fear of future persecution by the Eritrean

military. The asylum officer referred Mohammed to an Immigration Judge to

determine his eligibility for asylum. In July 2005, Mohammed filed his application

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for asylum, 8 U.S.C. § 1158(a)(1), withholding of removal, id. § 1231(b)(3), and

relief under the Convention Against Torture, 8 C.F.R. § 208.16(c)(2).

Mohammed alleged that he was conscripted into the Eritrean military in

1999, when he was in the seventh grade. He alleged that he was tortured on three

occasions because he was suspected of planning to desert. He alleged that soldiers

tied his hands behind his back, hung him from a tree by his hands, and beat him in

front of other men. On another occasion, soldiers allegedly tied his feet and arms

together and placed him in “the 8” position, chest-down on the ground, for an hour

a day during the hottest part of the day for four or five days. On a third occasion,

soldiers allegedly beat him with a stick on his leg. Mohammed also alleged that

the military suppressed his religion by refusing to allow him “to do his prayers.”

Mohammed stated that he escaped from the military “at the end of 2001” and hid

in Massawa. Mohammed stated that he had “no doubt at all” that if he went back

to Eritrea, he would lose his life. Mohammed included with his application news

articles and publications regarding Eritrea and human rights abuses there.

In October 2005, Mohammed filed a memorandum in support of his

application. Mohammed’s filing included the country profile for Eritrea published

by the State Department, more news articles, and reports from private

organizations regarding human rights abuses in Eritrea. The memorandum also

contained new allegations of abuse. Mohammed described an incident in which
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the military tied his body in “the 8” position and beat him for an hour a day for two

weeks after he disobeyed an order to arrest the elderly mother of a military

deserter. Mohammed also alleged that while he was in the United States, he

learned that the military had visited his parents’ house to search for him. He

alleged that the military detained and beat his father.

In April and May 2006, Mohammed filed three submissions of additional

evidence to support his application. The first submission included letters to

Mohammed from his brother and father, a photograph of Mohammed, and copies

of personal identification cards issued to him by his school, the Massawa Port, a

national students’ organization, and the Eritrean government. The letter allegedly

written by his brother described the detention of Mohammed’s father and referred

to Mohammed as the writer’s son. The identification cards bore his true name and

photograph but stated different dates of birth. The second submission included

background information on Eritrea from the State Department and an affidavit and

book chapter from Professor Dan Connell. The third submission included a

medical report dated May 3, 2006, by Dr. Sudha Reddy of Atlanta, Georgia, that

described scars on Mohammed’s back and injuries to his rotator cuffs. In the

patient history section, the medical report included Mohammed’s assertion about

the cause of his injuries.

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 On August 16, 2006, Mohammed and his counsel appeared for a hearing

before the Immigration Judge. Mohammed testified that he was taken from his

school in 1999 when he was in the seventh grade and forced to serve in the Eritrean

military. He testified that his responsibilities included harvesting crops and

standing watch for enemies. He testified that soldiers beat him while his body was

tied in “the 8” position for an hour a day for two weeks after he disobeyed an order

to arrest the elderly mother of a military deserter. He testified that he was

physically abused by members of the military on three occasions because he was

suspected of planning to desert and because he worked slowly.

Mohammed testified that “toward the end of 2001” he escaped from the

military. After his supervisor had left the base and while other officers slept,

Mohammed placed his weapon under his mattress, walked off the base, and

traveled by bus to the home of his family in Massawa. He stated that he spent “two

to three months” with his family before he obtained a government-issued

identification card to find a job. Mohammed stated that the military did not look

for him at the home of his family during this time.

Mohammed testified that he secured a job as a crane operator at the port in

Massawa, which was owned by the government. Mohammed testified that he

moved into a house that he shared with other crane operators, reenrolled in the

school from which he had been conscripted by the military, occasionally went into
5
town, and visited his relatives at least once every two weeks. Mohammed testified

that, during this period, the military conducted at the port monthly “roundups” of

those who deserted or evaded military service and he was able to hide from the

authorities in the crane or in ships or containers at the port. Mohammed testified

that he worked at the port for approximately three years before leaving for the

United States. Mohammed also testified that, after he left Eritrea, his father was

beaten by the Eritrean military and his brothers were conscripted.

Mohammed offered explanations for the discrepancies in his prehearing

submissions. He testified that the four identification cards stated different birth

dates because he gave false birth dates to the authorities to prevent the military

from locating him. He testified that the letter allegedly written by his brother,

which described the detention of their father and referred to Mohammed as the

writer’s son, explained what happened to their father from their father’s

perspective. Mohammed also submitted information about human rights abuses in

Eritrea in reports published by the government of the United Kingdom, and an

additional report about abuses in Eritrea published by the State Department.

On cross-examination, Mohammed testified that he waited approximately

one month after arriving at his parents’ home before he obtained his identification

card and began to look for a job. In response to questions about this delay,

Mohammed testified that he waited to apply for the card to spend time with his
6
family and to determine whether the military would attempt to follow him. He

stated that when he “found out that they were not going to [he] decided to go get

the ID card.” In response to questions about his alleged inability to practice his

Muslim faith in the military, Mohammed testified that he was never punished on

the basis of his religion because he “was not really at the age where [he]

worshipped.” Finally, when asked to give the “urgent reason” he left Eritrea,

Mohammed testified that “it’s a country where human rights is not respected” and

that he “had to flee to save [his] life.”

The Immigration Judge found that Mohammed’s testimony was not credible

because there were inconsistencies between Mohammed’s oral and written

statements, his testimony was implausible, and the documentary evidence did not

corroborate his testimony. The Immigration Judge explained that Mohammed

failed to mention in either his credible-fear interview or his asylum application the

incident when he allegedly was placed in “the 8” position and beaten after refusing

to detain the elderly woman. The Immigration Judge found that the notes from the

credible-fear interview did not mention any incident in which Mohammed alleged

that he was punished for failing to obey an order with which he disagreed. The

Immigration Judge also found inconsistencies regarding Mohammed’s ability to

practice his religion in the military. In his asylum application, Mohammed stated

that he was “not allowed to do [his] prayers,” but at his hearing, Mohammed
7
testified that he did not practice his religion while he was in the military.

Mohammed testified that he was not at the age where he was worshiping and that

he was never punished on the basis of his religion. The Immigration Judge found

implausible Mohammed’s contention that he was under constant surveillance as a

possible deserter because Mohammed testified that he escaped by walking away

from his barracks and boarding a bus on the street. The Immigration Judge also

found implausible Mohammed’s allegation that, after he escaped the military, he

immediately returned to his hometown, where he had been conscripted. The

Immigration Judge found implausible Mohammed’s allegation that the military

was actively searching for him while he was in “hiding” in Massawa because

Mohammed openly worked for the government at the port and applied in person

for a government identification card. The Immigration Judge found that

Mohammed’s explanation for the disparate birth years on his identification cards

“defies credulity.” The Immigration Judge found that Mohammed’s testimony

suggested that, although the military may have engaged in random roundups, it had

not singled out and actively searched for Mohammed.

In addition to making an adverse credibility determination, the Immigration

Judge found that Mohammed had not provided other credible evidence that he had

been persecuted on account of his religion or political opinion. The letter allegedly

written by Mohammed’s brother referred to Mohammed as the author’s son, and
8
the letter allegedly written by Mohammed’s father stated that the father had been

jailed and released, not beaten, after Mohammed left Eritrea. The medical report

Mohammed submitted did not provide any medical evidence of how Mohammed’s

rotator cuffs were injured. The Immigration Judge also found that the

identification cards Mohammed submitted were unreliable because Mohammed

admitted that the cards contained false information.

Because the Immigration Judge found that Mohammed had not proved that

he was persecuted in the past, the Immigration Judge did not presume that

Mohammed had a well-founded fear of persecution in the future. See 8 C.F.R. §

1208.13(b)(1). The Immigration Judge found that Mohammed had not proved a

well-founded fear of future persecution because Mohammed failed to establish a

reasonable probability that he would have to serve in the military if he returned to

Eritrea.

The Immigration Judge denied Mohammed’s application for asylum and

withholding of removal. Mohammed appealed to the Board of Immigration

Appeals, which dismissed the appeal. The Board found that the inconsistencies,

discrepancies, and implausibilities in Mohammed’s testimony and evidence

supported the adverse credibility finding and denial of asylum and withholding of

removal by the Immigration Judge.

II. STANDARD OF REVIEW
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 We review the decision of the Board, Reyes-Sanchez v. U.S. Att’y Gen., 369

F.3d 1239, 1242 (11th Cir. 2004), and we review the decision of the Immigration

Judge to the extent that the Board expressly adopted the opinion of the

Immigration Judge. Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1312 (11th Cir.

2006); Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Because the

Board agreed with the adverse credibility determination and the findings that

Mohammed did not suffer past persecution, we review the decisions of both the

Immigration Judge and the Board regarding those findings. See Al Najjar, 257

F.3d at 1284. Because the Board did not comment on the decision of the

Immigration Judge regarding Mohammed’s alleged fear of future persecution, we

review the findings of the Immigration Judge about that issue.

We review factual findings, including credibility determinations, under the

substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th

Cir. 2005). We “affirm [the decision of the Board] if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Al

Najjar, 257 F.3d at 1284 (internal quotation marks omitted). The REAL ID Act

provides that a trier of fact may base an adverse credibility determination on the

inherent implausibility of an applicant’s testimony, the inconsistency of his

testimony with other evidence, or the internal inconsistency of his testimony,

regardless of whether any implausibilities or inconsistencies go to the heart of the
10
applicant’s allegations of past persecution or fear of future persecution. Pub. L.

No. 109-13, 119 Stat. 231, 303 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)).

Our standard is highly deferential. Because the Immigration Judge made an

adverse credibility determination, “the burden is on the applicant alien to show that

the . . . credibility decision [of the Immigration Judge] was not supported by

specific, cogent reasons or was not based on substantial evidence.” Forgue, 401

F.3d at 1287 (internal quotation marks omitted). “[W]e review the record evidence

in the light most favorable to the agency’s decision and draw all reasonable

inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004). We may reverse a finding of fact “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.” Id.; see also 8 U.S.C. §

1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary[.]”). We

“may not substitute [our] judgment for that of the [Board] with respect to

credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th

Cir. 2004).

III. DISCUSSION

11
 To establish asylum eligibility, an applicant must prove that he is a

“refugee” under the Immigration and Nationality Act. See 8 U.S.C. § 1158(b)(1);

see also Al Najjar, 257 F.3d at 1284. A “refugee” must either have suffered

persecution or have a well-founded fear of future persecution “on account of race,

religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A). To establish that he has suffered past persecution, an

applicant must “prove (1) that []he was persecuted, and (2) that the persecution was

on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236

(11th Cir. 2006). To establish a well-founded fear of future persecution, an

applicant must “present detailed, specific facts showing a good reason to fear that

he . . . will be singled out for persecution on account of such opinion.” Al Najjar,

257 F.3d at 1287 (quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994))

(internal quotation marks omitted). An applicant may be able to meet his statutory

burden by providing uncorroborated but credible testimony, and in the absence of

corroborating evidence, an adverse credibility determination may be sufficient to

support the denial of an application. See 8 C.F.R. § 208.13; see also Forgue, 401

F.3d at 1287; D-Muhumed, 388 F.3d at 819. An applicant who cannot meet the

standard for asylum cannot meet the standard for withholding of removal. D-

Muhumed, 388 F.3d at 819; see also Al Najjar, 257 F.3d at 1292–93.

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 We address Mohammed’s petition in two parts. First, we discuss whether

substantial evidence supports the finding that Mohammed failed to prove past

persecution. Second, we discuss whether substantial evidence supports the finding

that Mohammed failed to prove a well-founded fear of future persecution.

A. Substantial Evidence Supports the Finding That Mohammed Failed To Prove
Past Persecution.

The record does not compel a finding that Mohammed suffered past

persecution. Extensive evidence supports the adverse credibility determination of

the Immigration Judge and the Board, and substantial evidence supports the

finding that Mohammed’s other evidence was unreliable.

Numerous inconsistencies and implausibilities in Mohammed’s testimony

regarding past persecution taint both his account of his service in the military and

his description of his experiences in Eritrea after he left the military. Mohammed

testified that he was punished after he refused to arrest the elderly mother of a

deserter, but he did not mention this incident or any other incident in which he was

punished for disobeying an order in either his credible-fear interview or asylum

application. Mohammed alleged that he was under constant surveillance while in

the military, but he also alleged that he left the military by walking away from his

barracks and using public transportation to travel to the home of his family.

Mohammed stated in his application that the military did not allow him to practice

13
his religion, but he testified at his hearing that he was never punished on the basis

of his religion. Mohammed testified that, after he deserted the military in 2001,

soldiers constantly searched for him and he was forced to go into hiding, but he

also testified that he lived with his parents without incident for about three months

after his desertion; obtained employment in a government-owned port; lived at the

port without incident for three years; obtained in person a government-issued

identification card; returned to the same school from which he had been

conscripted; and visited his family at least every two weeks. We conclude, and the

dissent agrees, that substantial evidence supports the finding of the Immigration

Judge and the Board that Mohammed’s testimony was incredible.

Mohammed argues that his letters, medical report, and identification cards

substantiate his claims of past persecution, but the record supports the finding of

the Immigration Judge that this evidence is unreliable. The letter allegedly written

by Mohammed’s brother about the abuse of their father referred to Mohammed as

the writer’s son. Although Mohammed testified that his father was detained and

beaten by the military after Mohammed left Eritrea, the letter allegedly written by

his father does not mention any beating. Each of Mohammed’s four identification

cards bore a different date of birth, and Mohammed failed to offer a plausible

explanation for the disparity. The medical report confirmed Mohammed’s injuries

14
to his rotator cuffs and, in the patient history section, included Mohammed’s

assertion about the cause of his injuries.

B. Substantial Evidence Supports the Finding That Mohammed Does Not Have a
Well-Founded Fear of Persecution.

The record also does not compel a finding that Mohammed presented

“specific, detailed facts showing a good reason to fear that he . . . will be singled

out for persecution. . . .” Al Najjar, 257 F.3d at 1287 (quoting Faddoul, 37 F.3d at

188) (internal quotation marks omitted). Mohammed submitted evidence that

abuses of human rights occur in Eritrea, but that evidence is not specific to

Mohammed. None of that evidence compels a finding that Mohammed has a well-

founded fear that he will be singled out for persecution if he returns to Eritrea.

The dissent contends that Mohammed established a well-founded fear of

persecution based on the reasonable possibility of forced service in the Eritrean

military, but we disagree. Mohammed had to prove either that he would be

disproportionately punished for refusing to serve in the Eritrean military or that he

would be forced to join an internationally condemned military. Mekoukh v.

Ashcroft, 358 F.3d 118, 126 (1st Cir. 2004). The likelihood of punishment for

refusal to serve is just as essential to the latter burden of proof as it is to the former:

“An alien’s claim to asylum based on his objection to serving in an internationally

condemned military requires proof that there is a reasonable possibility that the

15
alien will have to serve or be punished for refusing to serve.” Id. at 127 (citing

Mojsilovic v. INS, 156 F.3d 743, 747 (7th Cir. 1998)).

The dissent contends that Mohammed met both burdens of proof, but

because the record does not compel a conclusion that Mohammed will have to

serve in the Eritrean military if he returns to Eritrea, much less that he will be

punished for failing to serve, Mohammed has met neither burden of proof.

Substantial evidence supports the finding of the Immigration Judge that

Mohammed failed to prove that he would be forced to join the military if he

returned to Eritrea. Mohammed’s evidence that the military has searched for him

at the home of his family since his arrival in the United States is unreliable, and

Mohammed’s testimony about his experiences during the three years before he left

Eritrea does not compel a finding that he will be conscripted if he returns. Before

he left Eritrea, Mohammed, without incident, obtained a government-issued

identification card, worked in a government-owned facility in his hometown,

reenrolled in the school from which he had been conscripted, and regularly visited

his family at their home. Viewed in the light most favorable to the decision of the

Immigration Judge, the record supports a finding that Mohammed lived an open

and peaceful life after his service in the military. The record does not compel a

finding that Mohammed would be unable to return to a similar life.

16
 The dissent contends that the Immigration Judge “made his determination

solely on Mohammed’s testimony, effectually punishing Mohammed for stories

that the [Immigration Judge] deemed implausible and that, in the . . . mind [of the

Immigration Judge], did not add up,” but this accusation is unpersuasive. First, the

accusation is incorrect. The Immigration Judge considered both Mohammed’s

testimony and his documentary evidence, and the Immigration Judge denied relief

on the basis of both the adverse credibility determination and his finding that

Mohammed had not offered any reliable corroborative evidence: “[T]here is no

reliable evidence on the record to conclude that [Mohammed] deserted the army or

refused conscription on account of his opinions or beliefs.” Second, the accusation

that the Immigration Judge denied relief on the basis of testimonial implausibilities

identifies no defect in the decision of the Immigration Judge. The Immigration

Judge was entitled to deny relief on the basis of internal inconsistencies and

implausibilities in Mohammed’s testimony. Although the Immigration Judge was

obligated to consider Mohammed’s documentary evidence, the Immigration Judge

was under no obligation to credit it or assign it decisive weight. The regulations

permit the Immigration Judge to deny relief upon finding that Mohammed failed to

corroborate incredible testimony. “Th[e] language [in 8 C.F.R. § 208.13] plainly

indicates that if the trier of fact either does not believe the applicant or does not

know what to believe, the applicant’s failure to corroborate his testimony can be
17
fatal to his asylum application.” Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir.

2000).

The dissent also contends that the Immigration Judge engaged in “personal

speculation,” “idle musings,” “guesswork” and “supposition[s]” about the

likelihood that Mohammed would be conscripted upon return to Eritrea, but these

allegations misconstrue the findings of the Immigration Judge. The Immigration

Judge found that Mohammed may have been released from the military and that he

is unlikely to be conscripted upon return to Eritrea directly on the basis of

Mohammed’s own testimony. In the light of Mohammed’s various admissions

that, after he left the military, he lived with his family, applied for and received and

worked a government job, reenrolled in school, later lived in government housing,

and regularly visited his family, all without incident, the finding of the

Immigration Judge that Mohammed would not likely face continued military

service upon return to Eritrea cannot be described fairly as a “theory.”

The dissent contends that it is “fundamentally unfair” for us to rely on

Mohammed’s various admissions to affirm the finding of the Immigration Judge

because we credit testimony that we have found incredible, but this argument

misses the mark. The law permits a trier of fact to base an adverse credibility

determination on internal inconsistencies in an applicant’s testimony, 8 U.S.C. §

1158(b)(1)(B)(iii), and the point of an internal inconsistency is that the trier may
18
believe one part of an applicant’s story and not believe others. The Immigration

Judge and the Board are entitled to credit some parts of Mohammed’s testimony

and to discredit others.

The dissent also contends that Mohammed’s evidence of abuses of others in

Eritrea compels a finding that he will be conscripted or punished upon his return,

but the Immigration Judge and the Board assigned greater weight to the substantial

testimonial and documentary evidence that was specific to Mohammed.

Regardless of whatever persecution others have suffered, we know that

Mohammed was not recalled into service or persecuted in the three years he

remained in Eritrea after he left the military. Mohammed admitted it, and the

Immigration Judge was entitled to rely on that admission. The Immigration Judge

was also entitled to find that the evidence that the military has searched for

Mohammed since he left Eritrea is unreliable.

The dissent places decisive weight on objective evidence in the record, but

we cannot undertake a de novo review. “Whether we, like the dissent, would have

made different findings, if faced with [Mohammed’s] application for asylum and

live testimony, is irrelevant.” Silva, 448 F.3d at 1243. Our standard of review is

based on the understanding that “the Immigration Judge is in a superior position to

make findings of fact.” Id. at 1242.

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 The dissent also objects that requiring Mohammed to prove that he will be

singled out for persecution if he returns to Eritrea “neglects to appreciate” that

some groups may be systematically persecuted on the basis of their religion or

political opinions and “fails to engage in [the] weighing that the complex

relationship between group and individual targeting requires[,]” but again, the law

does not permit the approach the dissent suggests. The law provides that

Mohammed bore the burden of proving his fear of future persecution. Al Najjar,

257 F.3d at 1287. Our review is limited to deciding whether the evidence, viewed

in the light most favorable to the Immigration Judge, compels a reversal. Adefemi,

386 F.3d at 1027. Evidence of group membership, standing alone, cannot compel

a finding of a well-founded fear of persecution when the record contains ample

evidence to support the contrary finding by the Immigration Judge.

IV. CONCLUSION

Mohammed’s petition for review is denied.

PETITION DENIED.

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WILSON, Circuit Judge, dissenting:

The majority in effect punishes Mohammed for testimony the Immigration

Judge (IJ) deemed incredible. I cannot subscribe to the majority’s reasoning. Even

without relying on Mohammed’s testimony, there is sufficient objective evidence

of Eritrea’s human rights record and serious abuses to support Mohammed’s claim

that he will be persecuted if he is returned to Eritrea. At the very least, I would

vacate the BIA’s decision and remand to the agency for consideration of the other

compelling objective evidence presented by Mohammed in support of his petition.

I. B ACKGROUND

Mohammed entered the United States on April 15, 2005, as a stowaway.

Upon his arrival, Mohammed requested asylum and withholding of removal. In

his credible fear interview, he stated that he was forcibly recruited into the Eritrean

military in 1999. While serving, Mohammed claims that the military suspected

him as a potential deserter, tied him to a tree, and beat him. He stated that he

escaped from the military in 2001 and that he fears harm should he return to Eritrea

because of his desertion and refusal to serve in the army.

In July 2005, Mohammed filed an application for asylum and withholding of

removal under the Immigration and Nationality Act (INA) and Convention Against

Torture Act (CAT) based on political opinion persecution and a threat of torture.

Mohammed states that he was forcibly recruited into the Eritrean military in
seventh grade. He describes incidents of physical abuse at the hands of the

military, including (1) being hung from a tree with his arms tied behind his back

and beaten; (2) having his arms and feet tied together behind his back for an hour

each day for several days; and (3) being beaten on his leg with a stick.

Mohammed also attached to his application various articles and reports on

Eritrea. An Amnesty International press release confirms that all citizens between

the ages of 18 to 40 are conscripted into the Eritrean military for an indefinite

period of time. Several reports state that military conscripts, evaders, and deserters

were arbitrarily detained, tied up in various positions, and routinely tortured.

Another report indicates that applying for asylum abroad is seen as an act of

disloyalty to the Eritrean government, for which an applicant, if relief is denied,

may be detained and tortured.

Three months after filing his asylum application, Mohammed filed a

supplemental affidavit repeating several of the events in the asylum application and

adding the following. Mohammed states that he was forced by the military to

detain an old woman because her son was a military deserter. When he saw the old

woman, he claims he could not bring himself to arrest her. As a result, Mohammad

says he was detained by officers for two weeks, during which time he was tied up

and beaten. Mohammed also states that after he escaped from the military in 2001,

he went into hiding in the port town of Massawa, where he stayed until hiding
22
aboard a ship bound for America in 2005. He asserts that, because he left Eritrea,

his father was arrested, detained for three weeks, and badly beaten. Mohammed

expresses his fears: “If I go back to Eritrea, I have no doubt I will be killed.”

Mohammed submitted several documents to support his application: (1) two

letters to Mohammed, allegedly from his brother and his father; (2) a photograph

of Mohammed and two other soldiers in military uniform; and (3) copies of several

identification cards with conflicting birth dates. The first letter, purporting to be

from Mohammed’s brother, describes someone coming to the house asking about

Mohammed. The letter was translated into English, and midway through, the

writer’s perspective changes from that of Mohammed’s brother to that of his

father. The letter reads, in part:

They came for [you] a second time, grabbed me, and asked me, “Where is
your son?” . . . . They told me that I should either bring my son or go to jail.
I replied, saying, ‘Where do you want me to bring him from, I don’t know
where he is, so I cannot tell you where he is. Do what you have to do.’
They took him and jailed him for three days . . . and he came back to us with
his head swollen.

The second letter, from Mohammed’s father, states, in part, that Mohammed’s

father was accused of “making you, my son, flee the country” and was jailed for

three weeks and forced to pay a fine.

Mohammed also submitted numerous articles on the conditions in Eritrea, a

2005 Country Report on Eritrea from the Bureau of Democracy, Human Rights,

23
and Labor, and an affidavit from an expert on the conditions in Eritrea. The affiant

states that government officials in Eritrea carefully monitor draft-aged youths and,

based on Mohammed’s account of his experiences, Mohammed would be singled

out due to his desertion from the army and would be almost certainly subject to

“official detention and physical violence.” He goes on to state that Mohammed’s

“personal history and his flight to the U.S. will be well-known to the authorities

there [and if] he arrived in Eritrea, government agents accessing his records would

immediately impute him as an Eritrean dissident and detain him.”

The Country Report confirms that Eritrean draft-evaders have been tortured,

beaten, and killed. The Report states that deserters and draft-evaders have been

subjected to punishments such as prolonged sun exposure, binding of the hands,

elbows, and feet for extended periods of time, and suspension from trees with their

arms tied behind their backs. The Report also confirms that the parents of military

evaders have been arrested and detained. A chapter on Eritrea states that all

Eritreans between the ages of 18 and 45 are required by law to serve 18 months of

national service, and since 1998, have been kept in service on a continuous basis.

Furthermore, the government engages in frequent, often brutal, house-to-house

roundups to capture military evaders.

Lastly, Mohammed submitted a medical report from the Atlanta Department

of Corrections stating that he had sustained rotator cuff injuries in both shoulders
24
and has numerous scars, including an “8-10cm area of heterogeneous scar tissue

and bony abnormality” on his left leg. The report notes in its history section that

an “[e]pisode of torture included long term injury to shoulders, bone infection and

continued pain in left leg.”

At Mohammed’s asylum hearing, he recounted much of the above history,

adding the following testimony. He testified that in late 2001 he escaped from the

military compound while officers were sleeping. From 2002 to 2005, Mohammed

went to school and worked as a crane operator for a private company at the port in

Massawa. He testified that during this time the military would come and roundup

groups of people to be forced into military service. He stated that he was able to

successfully hide from the military during this time, sometimes receiving advanced

warnings of the roundups. He hid from the authorities in the crane in which he

worked or in ships or containers at the port.

The IJ issued a written decision, finding that Mohammed’s testimony was

not credible, due to inconsistent statements and inherent implausibilities. Agreeing

with the IJ’s adverse credibility determination, the BIA affirmed the IJ’s denial of

all relief “[i]nasmuch as the Immigration Judge considered all of the evidence of

record in this case.”

II. D ISCUSSION

A. Mohammed’s Testimony
25
 As the majority noted, Mohammed has not met his burden of showing that

the IJ’s adverse credibility determination of his testimony was not based on

substantial evidence. The BIA found inconsistencies in the record and

implausibilities. Mohammed has not provided sufficient explanations for these

inconsistences and implausibilities. Thus, I agree with the majority that the IJ and

BIA did not err in making an adverse credibility determination and in disregarding

Mohammed’s testimony. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th

Cir. 2006) (per curiam).

B. Objective Evidence

Nevertheless, even disregarding his testimony, Mohammed presents

compelling evidence that he is entitled to asylum based on the remaining evidence

in the record. To be eligible for asylum, Mohammed must establish that he is a

“refugee” within the meaning of the INA. 8 U.S.C. § 1158(b)(1)(A). One way

Mohammed can establish refugee status is by demonstrating a well-founded fear of

future persecution on account of his “race, religion, nationality, membership in a

particular social group, or political opinion.” 8 C.F.R. § 208.13(b)(2); De

Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006-07 (11th Cir. 2008). A well-

founded fear of future persecution can be established by (1) past persecution on

account of one of the protected grounds, which creates a presumption of a well-

founded fear of future persecution; (2) a reasonable possibility of personal
26
persecution that cannot be avoided by relocating within the subject country; or (3)

a pattern or practice in the subject country of persecuting members of a statutorily

defined group of which the alien is a part. See 8 C.F.R. § 208.13(b)(1), (2). In

order to be well-founded, an applicant’s fear of persecution must be “subjectively

genuine and objectively reasonable.” De Santamaria, 525 F.3d at 1007.

While courts have not deemed it persecution for a country to require military

service of its citizens, several courts have recognized that forced military

recruitment may constitute persecution if the petitioner is refusing to join “a

military whose acts are condemned by the international community as contrary to

the basic rules of human conduct.” Mekhoukh v. Ashcroft, 358 F.3d 118, 126 (1st

Cir. 2004). See also Kibinda v. Att’y Gen., 477 F.3d 113, 121 (3d Cir. 2007);

Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir. 2005); Pelinkovic v. Ashcroft, 366

F.3d 532, 538 (7th Cir. 2004); M.A. v. INS, 899 F.2d 304, 312 (4th Cir. 1990) (en

banc); Matter of A-G-, 19 I. & N. Dec. 502, 506 (BIA 1987).

There are two exceptions to the general rule that compulsory military service

does not provide asylum seekers with adequate cause to claim persecution. “First,

an alien may be eligible for asylum if refusal to serve in the military results . . . in

disproportionately severe punishment” and “[s]econd, an alien is eligible for

asylum if the alien would be associated with a military whose acts are condemned

by the international community. . . .” Mekhoukh, 358 F.3d at 126.
27
 Mohammed demonstrated the elements of both claims. He presented

substantial evidence that there is a reasonable possibility that he would have to

serve in a military that commits human rights violations. Moreover, if he does not

serve, he presented substantial evidence that he will receive disproportionately

severe punishment. This substantial evidence compels a contrary finding to the

IJ’s. I will discuss each claim in turn.

1. Mohammed Would Be Forced to Join a Military Who Acts Are

Condemned by the International Community

To support a claim that he would be forced to join a “military whose acts are

condemned by the international community as contrary to the basic rules of human

conduct,” Mohammed must show that (1) the Eritrean military has been

condemned by the international community; (2) there is a reasonable possibility

that Mohammed will be forced to serve in the Eritrean military upon return; and (3)

he has a “genuine conscientious objection to service.” Mekhoukh, 358 F.3d at 128.

a. The Eritrean Military Has Been Condemned by the

International Community

To support a claim that Mohammed would be forced to join a “military

whose acts are condemned by the international community as contrary to the basic

rules of human conduct,” he must first show that the Eritrean military has been

condemned by the international community. Id. at 128. The IJ correctly concluded
28
that the Eritrean military has been condemned by the international community for

committing human rights abuses. The IJ relied on a United States State

Department Report noting the Eritrean military’s numerous human rights abuses.

The Report confirmed that the Eritrean military engages “in torture and physical

beatings of prisoners, particularly during interrogations” and that “during the year,

security forces severely mistreated and beat army deserters, draft evaders, and

members of particular social groups.” Therefore, Mohammed successfully showed

that the Eritrean military has been condemned by the international community. See

Mekhoukh, 358 F.3d at 128.

b. There Is a Reasonable Possibility that Mohammed Will Be

Forced to Serve in the Eritrean Military Upon Return

To support a claim that Mohammed would be forced to join a “military

whose acts are condemned by the international community as contrary to the basic

rules of human conduct,” he must next show that there is a reasonable possibility

that he will be forced to serve in the Eritrean military upon return to Eritrea.

Mekhoukh, 358 F.3d at 128. The IJ denied Mohammed relief based on its

conclusion that Mohammed failed to show he would be forced to rejoin the

military if he was returned to Eritrea. Without his testimony, the IJ reasoned,

nothing established how Mohammed left the military—without Mohammed’s

testimony, the evidence does not show whether Mohammed deserted the military
29
or whether he was voluntarily discharged. Thus, the IJ held that Mohammed failed

to establish a reasonable possibility that he would be forced to serve in the military

if he returns to Eritrea. The critical issue, therefore, is whether substantial

evidence supports the IJ’s finding regarding the possibility of forced military

service.

The IJ found that because Mohammed’s testimony was incredible, his claim

effectually failed. While it is true that “an adverse credibility determination alone

may be sufficient to support the denial of an asylum application,” an adverse

credibility determination is not dispositive in some cases. Forgue v. Att’y Gen.,

401 F.3d 1282, 1287 (11th Cir. 2005) (internal citations omitted) (emphasis

added). “If the applicant produces no evidence other than his testimony, an

adverse credibility determination is alone sufficient to support the denial of an

asylum application.” Id. This is not the case here. Indeed, Mohammed produced

other significant evidence in addition to his testimony.

As we noted in Forgue, “[o]f course[] an adverse credibility determination

does not alleviate the IJ’s duty to consider other evidence produced by an asylum

applicant.” Id. The IJ “must still consider all evidence introduced by the

applicant.” Id. If “the applicant produces other evidence of persecution, whatever

form it may take, the IJ must consider that evidence, and it is not sufficient for the

IJ to rely solely on an adverse credibility determination in those instances.” Id.
30
 Here, the IJ’s adverse credibility determination did not alleviate his duty to

consider the other objective reports and evidence produced by Mohammed. Even

though the IJ recognized that the Eritrean military has been condemned by the

international community for committing human rights abuses, the IJ made his

determination solely on Mohammed’s testimony, effectually punishing

Mohammed for stories that the IJ deemed implausible and that, in the IJ’s mind,

did not add up.

The IJ denied Mohammed asylum relief, finding that the “record fails to

establish that there is a reasonable possibility that [Mohammed] will have to serve

in the military if he returns to Eritrea.” While the IJ found that the record

established Mohammed’s prior service in the army, he found that Mohammed had

not demonstrated “how he left the army” or that he was a deserter. The IJ

theorized that Mohammed may have been “simply released from his military

service.” If this were the case, he concluded, Mohammed would not likely face

continued military service upon his return to Eritrea.

Considering the record as a whole, I conclude that the IJ’s supposition that

Mohammed may have simply been released from military service and, if so, would

not likely face military service upon return, is not supported by “reasonable,

substantial, and probative evidence.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 818 (11th Cir. 2004) (quotations omitted). The objective articles and reports
31
Mohammed submitted maintain that the Eritrean military does not simply “release”

conscripts from service, as the IJ supposed. On the contrary, the record establishes

that those conscripted into the Eritrean military are kept in service indefinitely.

While by law “[a]ll Eritreans between the ages of 18 and 45 are required . . . to

perform 18 months of national service,” in practice “conscripts have been kept in

service on a continuous basis” since 1998. Military conscripts are generally not

released from service but instead are kept in service indefinitely. The IJ’s theories

about military service in Eritrea “are little more than idle musings.” Don v.

Gonzales, 476 F.3d 738, 754 (9th Cir. 2007) (Wardlaw, J., dissenting). His

personal speculation about how the Eritrean military operates is no substitute for

substantial evidence. Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996). The

substantial evidence points to a conclusion contrary to the IJ’s.

Further, even if Mohammed were released, the IJ’s theory that Mohammed

would not likely face continued military service does not hold water. “Those who

complete[] national service . . . are subject to recall and reserve duties.” Moreover,

“[r]e-induction for those who have already served has been used as political

punishment for . . . [those] who have expressed public criticism of government

policy.” “There is no exception for conscientious objectors.” So even if

Mohammed were “simply released from his military service” as the IJ

contemplated, he could be recalled. Again, the IJ’s theory demonstrates that he
32
relied on guesswork about how a military operates and not on the substantial

objective evidence before him.

The majority engages in much of the same speculation as the IJ does

regarding forced military service and employs questionable logic. It finds that

“substantial evidence supports the finding of the [IJ] that Mohammed failed to

prove that he would be forced to join the military if he returned to Eritrea [because]

Mohammed’s evidence that the military has searched for him at the home of his

family since his arrival in the United States is unreliable, and Mohammed’s

testimony about his experiences during the three years before he left Eritrea does

not compel a finding that he will be conscripted if he returns.” I disagree with the

majority’s approach.

First, the majority bolsters its contention that the record supports the IJ’s

finding that Mohammed would not likely face continued military service based on

Mohammed’s testimony that “[b]efore he left Eritrea, Mohammed, without

incident, obtained a government-issued identification card, worked in a

government-owned facility in his hometown, reenrolled in the school from which

he had been conscripted, and regularly visited his family at their home.” In doing

this, the majority relies on the very testimony that the IJ deemed incredible. The IJ

called it “inherently implausible” and felt “compel[led] . . . to find that

[Mohammed] did not testify credibly.” Yet Mohammed’s incredible testimony
33
about his experiences during the three years before he left Eritrea are the basis of

the majority’s conclusion about forced military service.

Second, the majority cherry-picks evidence, disregarding Mohammed’s

testimony as incredible and yet simultaneously basing its conclusion on the very

evidence it was quick to throw out. The IJ never made a finding that those

particular parts of Mohammed’s testimony were credible. If the majority would

like to open up this box, I am happy to do so. But here, the majority is just having

its cake and eating it too—refusing to believe Mohammed when doing so would

support Mohammed’s asylum application and selectively relying on Mohammed’s

testimony when it suits the majority, effectively punishing Mohammed for

testimony the IJ deemed implausible. While the law does permit a trier of fact to

credit some parts of Mohammed’s testimony and discredit others, as the majority

points out, I find this approach to be fundamentally unfair. Mohammed is

penalized by his testimony either way—either it is incredible and thus cannot

support his asylum application, or it is selectively used to support removing him. I

cannot support such a methodology to well-founded fear determinations.

Should we look at Mohammed’s testimony in its totality, examining the

entire contents of the box that the majority has opened, it by no means supports the

IJ’s “finding that Mohammed lived an open and peaceful life after his service in

the military.” Mohammed did not testify that he “lived an open and peaceful life.”
34
On the contrary, he testified that he spent three years in hiding in order to avoid

military conscription. That Mohammed was able to avoid military conscription for

three years does not support a contention that his life was “open and peaceful.”

The majority’s ruminations on peaceful living in Eritrea are not compelling. Cf.

Don v. Gonzales, 476 F.3d 738, 754-55 (9th Cir. 2007) (Wardlaw, J., dissenting)

(finding the majority’s and IJ’s conjectures “little more than idle musings . . . [and]

speculation and not a substitute for substantial evidence”). If the majority would

like to give credence to Mohammed’s testimony about living and working in

Eritrea for three years, fairness requires a recognition of Mohammed’s testimony

that he was only able to do this because of his luck in hiding from the military. He

would hide in the crane in which he worked or in ships or containers at the port.

To say that Mohammed can return to an open life of peace begs the underlying

issue that Mohammed was avoiding military conscription the entire time, which

objective evidence makes clear will be a constant issue until Mohammed reaches

the age of 40, at which time he would no longer be of military age. Mohammed

has about 18 years of hiding to go. Sending an alien back so he may go into hiding

from a military that commits human rights abuses seems a backward solution when

the majority claims he is returning to “an open and peaceful life.”

Third, not only do I find the majority’s approach to be fundamentally unfair,

but I find its approach to be illogical. The majority relies on testimony the IJ
35
deemed incredible only when its incredibility flies in the face of objective evidence

in the record, and it relies on testimony deemed credible only when its credibility is

at odds with objective evidence. The majority relies on the incredibility

determination of Mohammed’s testimony about hiding from military conscription,

even though the objective evidence in the record consistently states that Eritreans

of military age are kept in service indefinitely or are subject to recall on a

continuous basis. Based on the objective evidence in the record, hiding seems one

of the only ways to succeed at avoiding military conscription. Moreover,

Mohammed’s testimony that leads the majority to contend that he led “an open and

peaceful life” is deemed credible, even though the objective evidence supports the

opposite of an open and peaceful life. While the majority is correct that a “trier [of

fact] may believe one part of an applicant’s story and not believe others,” this

approach defies logic. It is backwards—the approach to determining credibility

defies the objective evidence both ways.

The majority’s musings on Eritrean life and the military are no more a

substitute for substantial evidence than were the IJ’s musings. Because objective

evidence demonstrates that conscripts are generally kept in service continually and

may be subject to recall at any time, the record compels a finding that Mohammed

will have to serve in the military if he returns to Eritrea.

36
 c. Mohammed Has a Genuine Conscientious Objection to

Service

To support a claim that Mohammed would be forced to join a “military

whose acts are condemned by the international community as contrary to the basic

rules of human conduct,” he must lastly show that he has a “genuine conscientious

objection to service.” Mekhoukh, 358 F.3d at 128. Mohammed has a “genuine

conscientious objection to service.” This element requires little discussion. The IJ

himself never disputed this. He instead explicitly recognized that “opposition to

military conscription” is an “aspect of [Mohammed’s] asylum application [that]

appear[s] to be plausible in light of common logic and evidence.”

2. Refusal to Serve in the Eritrean Military Results in

Disproportionately Severe Punishment

Substantial objective evidence in the record supports that “[r]efusal to serve

in the [Eritrean] military results not in normal draft evasion penalties, but rather in

disproportionately severe punishment.” Mekhoukh, 358 F.3d at 126. First, torture

is used as “standard military punishment.” The methods of torture are heinous.

One of the various methods used is “the helicopter”:

[The victim is] tied with a rope by hands and feet behind the back, lying on
the ground face down, outside in the hot sun, rain or freezing cold nights,
stripped of upper garments. This is a punishment allocated for a particular
number of days, the maximum reported being 55 days . . . but is more often

37
 one or two weeks. The prisoner is tied in this position 24 hours a day,
except for two or three short breaks for meals and toilet functions.

Another is the “Jesus Christ”:

[The victim is] stripped to the waist, wrists tied, and standing on a block
with hands tied to a tree branch; the block is removed, leaving the victim
suspended with the feet just off the ground in a crucifix-like posture.
Beatings are inflicted on the bare back. This is said to be an extremely
severe torture, restricted to only 10 to 15 minutes to avoid serious lasting
injury.

Another is known as the “number eight”:

[I]nside a special torture room, the victim is tied by wrists behind the back
and with the feet bound; a stick is placed under the knees and supported on a
framework on both sides horizontally, and the body is turned upside down
with the feet exposed. The soles of the feet are beaten with sticks or
whipped.

Those who attempt to evade military service, or who are even suspected of

evading, may be detained and tortured. According to Amnesty International, “[t]he

penalty for evading conscription or protesting against military service is three

years’ imprisonment, but in practice those caught are tortured and arbitrarily

detained for several months with hard labor, before being forced back into the

army.” For example, in November 2004, Eritrean security forces “indiscriminately

arrested thousands of people suspected of evading military conscription. People

were arrested at places of work, in the street, at roadblocks and at home. Prisoners

were taken to [an] . . . army prison . . . . That night, . . . [s]oldiers opened fire and

38
shot dead at least a dozen prisoners and wounded many more.” Further, “[m]any

prisoners [are] kept in overcrowded metal shipping containers in unventilated, hot

and unhygienic conditions and denied adequate food and medical treatment.

Conditions in military prisons around the country [are] extremely harsh.” The

Country Report found that some who attempted to evade have been killed. The

great “likelihood that [Mohammed] will be punished” for refusal to serve is

beyond dispute. See Mojsilovic, 156 F.3d at 747 (quotation and citation omitted).

Accordingly, I conclude that Mohammed has established a well-founded

fear of persecution based on forced service in a military condemned by the

international community and that refusal to serve in the military results in

disproportionately severe punishment. See Mekhoukh, 358 F.3d at 126.

Mohammed is therefore entitled to asylum.

The majority finds that the evidence of human rights violations in Eritrea

does not compel a finding that Mohammed has a well-founded fear of future

persecution because he must present evidence “that he will be singled out for

persecution.” This reasoning neglects to appreciate “the complex relationship

between group targeting and individual targeting.” Kotasz v. INS, 31 F.3d 847,

854 (9th Cir. 1994). The Ninth Circuit has cautioned against use of the phrase

“singled out” for this very reason—“it is not surprising that the BIA’s reliance on

phrases such as ‘singling out’ occasionally results in error. While such phrases
39
may be useful to denote the existence of a particularized threat of persecution is

some circumstances, they are ill-suited to many others.” Id.

The majority claims that “the law provides that Mohammed bore the burden

of proving his fear of future persecution.” I disagree. First, there are “situations in

which members of an entire group . . . are systematically persecuted. In such

cases, group membership itself subjects the alien to a reasonable possibility of

persecution,” so that he can satisfy the well-founded fear standard “simply by

proving membership in the targeted group.” Id. at 852 (emphasis in original).

When there is such “a pattern or practice” in the subject country of persecuting

members of a statutorily defined group of which the alien is a part, 8 C.F.R. §

208.13(b)(2), the INS recognizes “group persecution as sufficient in itself to

establish eligibility for asylum in certain circumstances,” Kotasz, 31 F.3d at 852.

Second, in non-pattern or practice cases, while “members of the disfavored

groups are not threatened by systematic persecution of the group’s entire

membership, the fact of group membership nonetheless places them at some risk.”

Id. at 853. In these cases “there is a significant correlation between the asylum

petitioner’s showing of group persecution and the rest of the evidentiary showing

necessary to establish a particularized threat of persecution.” Id. In other words,

“the more egregious the showing of group persecution—the greater the risk to all

40
members of the group—the less evidence of individualized persecution must be

adduced.” Id.

The majority’s blanket statement that an alien must present evidence “that he

will be singled out for persecution,” fails to engage in this weighing that the

complex relationship between group and individual targeting requires.

Mohammed’s showing of the government’s human rights record and serious

abuses committed against draft-eligible Eritreans is egregious enough that a more

particularized threat of persecution against him was not necessary.

C ONCLUSION

We show deference to the IJ and the BIA, but we are not a mere rubber

stamp for their determinations. See de Santamaria v. U.S. Att’y Gen., 525 F.3d

999, 1013 (11th Cir. 2008) (vacating the BIA’s decision when substantial evidence

did not support the findings of the IJ). It seems as though the IJ decided on a result

before weighing the evidence before him, failing to consider the objective reports

and evidence produced by Mohammed in support of his application for asylum and

withholding of removal, basing his decision solely on an adverse credibility

determination. Since the IJ and the BIA neglected their duty to consider all of the

evidence in support of the petition, I would remand this matter back for

reconsideration. See Gonzales v. Thomas, 547 U.S. 183, 186, 126 S. Ct. 1613,

1615, 164 L. Ed. 2d 358 (2006) (“A court of appeals is not generally empowered to
41
conduct a de novo inquiry into the matter being reviewed and to reach its own

conclusions based on such an inquiry. Rather, the proper course, except in rare

circumstances, is to remand to the agency for additional investigation or

explanation.”) (citations and quotations omitted). See also Jean-Pierre v. U.S.

Att’y Gen., 500 F.3d 1315, 1326 (11th Cir. 2007).

I respectfully dissent.

42