USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 1 of 6
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10467 Non-Argument Calendar ____________________
FALI PEPOCHI, Petitioner, versus U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A203-821-333 ____________________ USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 2 of 6
2 Opinion of the Court 21-10467
Before JORDAN, GRANT, and MARCUS, Circuit Judges. PER CURIAM: Fali Pepochi appeals the Board of Immigration Appeals’ (“BIA”) decision to uphold an Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal based on an adverse-credibility determination. The IJ found several aspects of Pepochi’s testimony and record evidence to be inconsistent, and found other parts of his testimony to not be believable, lead- ing to the adverse-credibility finding, and also denied his applica- tions on alternate grounds. The BIA agreed with the IJ’s reason- ing for the adverse-credibility finding and did not reach the merits of the IJ’s alternative findings. After careful review, we deny the petition. In petitions for review of BIA decisions, we review factual determinations under the substantial evidence test. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Under this test, we view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007). The mere fact that the record may support a different conclusion is insufficient to justify a reversal of administrative findings; instead, to warrant reversal, the record must compel a contrary conclusion. Id. The BIA is not required to specifically discuss each and every piece of evidence presented by the petitioner. Point du Jour v. U.S. Att’y Gen., 960 F.3d 1348, USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 3 of 6
21-10467 Opinion of the Court 3
1351 (11th Cir. 2020). We review questions of law de novo, Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir. 2008), including claims that the agency failed to give reasoned considera- tion to an issue, Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018). We only review the BIA’s decision as the final agency deci- sion unless it expressly adopted the IJ’s opinion or agreed with the IJ’s reasoning. Perez Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). When the BIA adopts or agrees with IJ’s reasoning, we review the decisions of both the BIA and the IJ. Id. We will not consider arguments raised for the first time on ap- peal. Zhuang Ping Lin v. U.S. Att’y Gen., 555 F.3d 1310, 1316 n.5 (11th Cir. 2009). An IJ is permitted, after considering the totality of the cir- cumstances, to base a credibility finding on various factors, in- cluding: the consistency between the applicant’s written and oral statements, whenever made and whether or not under oath; the internal consistency of each such statement; and the consistency of an applicant’s statements with other record evidence -- without regard to whether an inconsistency or inaccuracy goes to the heart of the applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii). Under the REAL ID Act, there is no presumption of credibility for an asylum applicant. Id. § 1158(b)(1)(B)(iii). The trier of fact must determine credibility, and we may not substitute our judgment for that of the BIA with respect to credibility findings. Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d 486, USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 4 of 6
4 Opinion of the Court 21-10467
493 (11th Cir. 2013). While, a credibility determination may not be based on speculation and conjecture, an IJ has broad discretion to assess an applicant’s credibility, and the IJ need only provide specific and cogent reasons supporting an adverse-credibility de- termination. Id. at 493–94. As little as one inconsistency and one omission may justify an adverse-credibility determination. Xia v. U.S. Att’y Gen., 608 F.3d 1233, 1240 (11th Cir. 2010). Further, the IJ and BIA may consider inaccuracies and falsehoods in the appli- cant’s evidence regardless of whether they go to the heart of their claim. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006). Even a tenable explanation for inconsistencies does not compel reversal of an adverse-credibility determination. Id. Here, Pepochi sought asylum and withholding of removal based on alleged threats he received in Albania from socialist ex- tremists due to his father-in-law’s membership in the Democratic Party. On appeal, Pepochi says that enough evidence exists to show that his claims are credible. However, the IJ found multiple inconsistencies in support of the adverse-credibility determination -- all of which are supported by substantial evidence -- and as we’ve held, this is more than sufficient to justify an adverse- credibility determination. Xia, 608 F.3d at 1240. One inconsistency involved a discrepancy between an arti- cle presented by the government showing that Zyber Lita -- Pe- pochi’s common-law father-in-law -- ran as a candidate for the Party for Justice, Integration, and Unity in Albania, and Pepochi’s testimony, which claimed that Lita ran as a candidate for the USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 5 of 6
21-10467 Opinion of the Court 5
Democratic Party.1 There was another inconsistency concerning the date Pepochi started receiving threats -- at his credible fear in- terview, Pepochi claimed they began in 2013, while at the merits hearing, he testified they began in 2011. Yet another inconsisten- cy the IJ identified was between Lita’s affidavit stating Pepochi was arrested in 2011, and Pepochi’s testimony that his arrest was in 2013. The IJ also observed that Pepochi presented a false pass- port to immigration authorities, but his application for asylum did not indicate that he had used a different name before. Beyond these inconsistencies, the IJ cited several other spe- cific reasons for the adverse-credibility finding. Xiu Ying Wu, 712 F.3d at 493–94. The IJ found that Pepochi’s testimony about So- cialist Party control over everything -- from the police to the civil registry system -- to be implausible since a Democratic Party member had held the Presidency until recently and was in office when Pepochi first received threats. The IJ also found incredible Pepochi’s claim that he had not applied for asylum in London be- cause he had received threats there in 2019 for being the son-in- law and a political supporter of Lita. The IJ noted that Pepochi had lived in London for four years without incident and provided little detail about the attackers and no evidence of the attack.
Free access — add to your briefcase to read the full text and ask questions with AI
USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 1 of 6
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10467 Non-Argument Calendar ____________________
FALI PEPOCHI, Petitioner, versus U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A203-821-333 ____________________ USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 2 of 6
2 Opinion of the Court 21-10467
Before JORDAN, GRANT, and MARCUS, Circuit Judges. PER CURIAM: Fali Pepochi appeals the Board of Immigration Appeals’ (“BIA”) decision to uphold an Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal based on an adverse-credibility determination. The IJ found several aspects of Pepochi’s testimony and record evidence to be inconsistent, and found other parts of his testimony to not be believable, lead- ing to the adverse-credibility finding, and also denied his applica- tions on alternate grounds. The BIA agreed with the IJ’s reason- ing for the adverse-credibility finding and did not reach the merits of the IJ’s alternative findings. After careful review, we deny the petition. In petitions for review of BIA decisions, we review factual determinations under the substantial evidence test. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Under this test, we view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007). The mere fact that the record may support a different conclusion is insufficient to justify a reversal of administrative findings; instead, to warrant reversal, the record must compel a contrary conclusion. Id. The BIA is not required to specifically discuss each and every piece of evidence presented by the petitioner. Point du Jour v. U.S. Att’y Gen., 960 F.3d 1348, USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 3 of 6
21-10467 Opinion of the Court 3
1351 (11th Cir. 2020). We review questions of law de novo, Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir. 2008), including claims that the agency failed to give reasoned considera- tion to an issue, Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018). We only review the BIA’s decision as the final agency deci- sion unless it expressly adopted the IJ’s opinion or agreed with the IJ’s reasoning. Perez Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). When the BIA adopts or agrees with IJ’s reasoning, we review the decisions of both the BIA and the IJ. Id. We will not consider arguments raised for the first time on ap- peal. Zhuang Ping Lin v. U.S. Att’y Gen., 555 F.3d 1310, 1316 n.5 (11th Cir. 2009). An IJ is permitted, after considering the totality of the cir- cumstances, to base a credibility finding on various factors, in- cluding: the consistency between the applicant’s written and oral statements, whenever made and whether or not under oath; the internal consistency of each such statement; and the consistency of an applicant’s statements with other record evidence -- without regard to whether an inconsistency or inaccuracy goes to the heart of the applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii). Under the REAL ID Act, there is no presumption of credibility for an asylum applicant. Id. § 1158(b)(1)(B)(iii). The trier of fact must determine credibility, and we may not substitute our judgment for that of the BIA with respect to credibility findings. Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d 486, USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 4 of 6
4 Opinion of the Court 21-10467
493 (11th Cir. 2013). While, a credibility determination may not be based on speculation and conjecture, an IJ has broad discretion to assess an applicant’s credibility, and the IJ need only provide specific and cogent reasons supporting an adverse-credibility de- termination. Id. at 493–94. As little as one inconsistency and one omission may justify an adverse-credibility determination. Xia v. U.S. Att’y Gen., 608 F.3d 1233, 1240 (11th Cir. 2010). Further, the IJ and BIA may consider inaccuracies and falsehoods in the appli- cant’s evidence regardless of whether they go to the heart of their claim. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006). Even a tenable explanation for inconsistencies does not compel reversal of an adverse-credibility determination. Id. Here, Pepochi sought asylum and withholding of removal based on alleged threats he received in Albania from socialist ex- tremists due to his father-in-law’s membership in the Democratic Party. On appeal, Pepochi says that enough evidence exists to show that his claims are credible. However, the IJ found multiple inconsistencies in support of the adverse-credibility determination -- all of which are supported by substantial evidence -- and as we’ve held, this is more than sufficient to justify an adverse- credibility determination. Xia, 608 F.3d at 1240. One inconsistency involved a discrepancy between an arti- cle presented by the government showing that Zyber Lita -- Pe- pochi’s common-law father-in-law -- ran as a candidate for the Party for Justice, Integration, and Unity in Albania, and Pepochi’s testimony, which claimed that Lita ran as a candidate for the USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 5 of 6
21-10467 Opinion of the Court 5
Democratic Party.1 There was another inconsistency concerning the date Pepochi started receiving threats -- at his credible fear in- terview, Pepochi claimed they began in 2013, while at the merits hearing, he testified they began in 2011. Yet another inconsisten- cy the IJ identified was between Lita’s affidavit stating Pepochi was arrested in 2011, and Pepochi’s testimony that his arrest was in 2013. The IJ also observed that Pepochi presented a false pass- port to immigration authorities, but his application for asylum did not indicate that he had used a different name before. Beyond these inconsistencies, the IJ cited several other spe- cific reasons for the adverse-credibility finding. Xiu Ying Wu, 712 F.3d at 493–94. The IJ found that Pepochi’s testimony about So- cialist Party control over everything -- from the police to the civil registry system -- to be implausible since a Democratic Party member had held the Presidency until recently and was in office when Pepochi first received threats. The IJ also found incredible Pepochi’s claim that he had not applied for asylum in London be- cause he had received threats there in 2019 for being the son-in- law and a political supporter of Lita. The IJ noted that Pepochi had lived in London for four years without incident and provided little detail about the attackers and no evidence of the attack. As for Pepochi’s claim that his name was not on the birth certificate
1 As for Pepochi’s challenge on appeal to the IJ’s consideration of this article, we do not consider arguments raised for the first time on appeal. Zhuang Ping Lin, 555 F.3d at 1316 n.5. USCA11 Case: 21-10467 Date Filed: 10/22/2021 Page: 6 of 6
6 Opinion of the Court 21-10467
of Lita’s grandson because he had feared entering the hospital in London during the birth, the IJ found this to be incredible too. According to the IJ, a document from the Albanian embassy ex- plained that a father’s name is not given when paternity is not recognized. Although Pepochi might have tried to offer explana- tions for each of these inconsistencies and other reasons for the finding, even tenable explanations are not enough to overcome an adverse-credibility finding, and the IJ found his explanations were not tenable. Chen, 463 F.3d at 1233. Pepochi adds that the IJ failed to establish a sufficient basis for his ruling because he did not mention all other sources Pe- pochi provided with his application. However, the agency need not discuss each piece of evidence, and the IJ has broad discretion to make a credibility determination in the first instance, so the BIA did not err when it upheld the credibility determination. Point du Jour, 960 F.3d at 1351; Xiu Ying Wu, 712 F.3d at 493–94. Moreover, even if Pepochi’s claims were reasonable, the mere fact that the record could support a different conclusion is not suf- ficient; rather, the record must compel a reversal of the agency decision. Sanchez Jimenez, 492 F.3d at 1230. Accordingly, sub- stantial evidence supports the adverse-credibility finding, and we deny the petition for review. PETITION DENIED.