Case: 18-12709 Date Filed: 05/09/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12709 Non-Argument Calendar ________________________
Agency No. A208-310-896
MD JHILLUR RAHMAN, a.k.a. Jhillur Rahman,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(May 9, 2019)
Before NEWSOM, BRANCH and BLACK, Circuit Judges.
PER CURIAM: Case: 18-12709 Date Filed: 05/09/2019 Page: 2 of 6
Jhillur Rahman seeks review of the Board of Immigration Appeals’ (BIA’s)
decision affirming the order of the Immigration Judge (IJ) denying his applications
for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT)1 based on an adverse credibility finding. Rahman argues the BIA
erred in affirming the IJ’s adverse credibility finding because the discrepancies the
IJ cited were either not significant or not actual discrepancies, and both the IJ and
BIA ignored important supporting documents that substantiated his claims. After
review, 2 we deny Rahman’s petition.
We review the BIA’s factual determinations, including credibility
determinations, under the substantial evidence test. Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1254-55 (11th Cir. 2006). Under the substantial evidence test, we
review the record evidence in the light most favorable to the BIA’s decision and
draw all reasonable inferences in favor of that decision. Id. at 1255. We “must
affirm the . . . decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole,” and we do not substitute our own
1 Because Rahman failed to raise an argument regarding the denial of his CAT claim before the BIA, he has not exhausted his administrative remedies and we lack jurisdiction to review the denial of his CAT claim. See 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). 2 We review the BIA’s decision only, except to the extent that it expressly adopts the IJ’s opinion or IJ’s reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). 2 Case: 18-12709 Date Filed: 05/09/2019 Page: 3 of 6
judgment for that of the BIA with respect to credibility findings. Id. at 1254-55.
The BIA may base a credibility determination on the following:
. . . the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
“[A]n adverse credibility determination alone may be sufficient to support
the denial of an asylum application.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1287 (11th Cir. 2005). However, an adverse credibility finding “does not alleviate
the IJ's duty to consider other evidence produced by an asylum applicant,” and the
IJ may not “rely solely on an adverse credibility determination” where the
applicant produced “other evidence of persecution.” Id.
The record does not compel reversal of the BIA’s findings. See id. (stating we
will only reverse a credibility determination when the record compels reversal).
The BIA made its adverse credibility finding using “specific, cogent reasons” from
evidence in the record, not based “solely on speculation and conjecture,” or “on
personal perception or whim.” See Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d 486,
494 (11th Cir. 2013) (explaining where the IJ makes a determination based “solely
3 Case: 18-12709 Date Filed: 05/09/2019 Page: 4 of 6
on speculation and conjecture,” or “on personal perception or whim,” it is enough
to compel this Court to reverse an adverse credibility determination); Forgue, 401
F.3d at 1287 (providing when an adverse credibility finding is made, “the burden is
on the applicant alien to show that the IJ’s credibility decision was not supported
by specific, cogent reasons or was not based on substantial evidence”). The BIA
clearly articulated the five discrepancies it found using specific examples from
Rahman’s statement compared to his testimony. See Ruiz, 440 F.3d at 1254-55.
These inconsistencies and omissions noted by the BIA are supported by the record,
and even while Rahman provided tenable explanations for such discrepancies and a
contrary conclusion could be made, such is not enough to compel this Court to
overturn the BIA’s decision. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233
(11th Cir. 2006) (holding “while [the petitioner’s] explanations of the implausible
aspects of his claim are tenable, we cannot say, especially given the relative lack of
corroborating evidence, that these explanations would compel a reasonable fact
finder to reverse the IJ’s credibility determination”); 8 U.S.C. § 1158(b)(1)(B)(iii).
Next, Rahman’s additional supplementary evidence failed to corroborate his
claims on its own. The evidence Rahman submitted to corroborate his specific
claims giving rise to his asylum application—his brother’s and uncle’s affidavits
and the Liberal Democratic Party (LDP) certificates—contained inconsistencies
and omissions supporting the BIA’s adverse credibility finding. The Country
4 Case: 18-12709 Date Filed: 05/09/2019 Page: 5 of 6
Reports failed to specifically state the LDP suffered from Bangladesh Awami
League (BAL) oppression. While Rahman’s medical reports corroborate the dates
of his hospital visits, neither report states how Rahman was injured or why.
Rahman argues on appeal the BIA failed to consider the news articles he
submitted that stated he was attacked for being part of the LDP, and thus, the BIA
“cherry-picked omissions which were minor and for which [he] had plausible
explanations.” The BIA did not “rely solely on an adverse credibility
determination,” but rather, it looked to the totality of Rahman’s additional
evidence. See Forgue, 401 F.3d at 1287. However, the BIA need not “address
specifically each claim the petitioner made or each piece of evidence the petitioner
presented, but [it] must consider the issues raised and announce [its] decision in
terms sufficient to enable a reviewing court to perceive that [it has] heard and
thought and not merely reacted.” See Ayala v. U.S.
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Case: 18-12709 Date Filed: 05/09/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12709 Non-Argument Calendar ________________________
Agency No. A208-310-896
MD JHILLUR RAHMAN, a.k.a. Jhillur Rahman,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(May 9, 2019)
Before NEWSOM, BRANCH and BLACK, Circuit Judges.
PER CURIAM: Case: 18-12709 Date Filed: 05/09/2019 Page: 2 of 6
Jhillur Rahman seeks review of the Board of Immigration Appeals’ (BIA’s)
decision affirming the order of the Immigration Judge (IJ) denying his applications
for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT)1 based on an adverse credibility finding. Rahman argues the BIA
erred in affirming the IJ’s adverse credibility finding because the discrepancies the
IJ cited were either not significant or not actual discrepancies, and both the IJ and
BIA ignored important supporting documents that substantiated his claims. After
review, 2 we deny Rahman’s petition.
We review the BIA’s factual determinations, including credibility
determinations, under the substantial evidence test. Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1254-55 (11th Cir. 2006). Under the substantial evidence test, we
review the record evidence in the light most favorable to the BIA’s decision and
draw all reasonable inferences in favor of that decision. Id. at 1255. We “must
affirm the . . . decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole,” and we do not substitute our own
1 Because Rahman failed to raise an argument regarding the denial of his CAT claim before the BIA, he has not exhausted his administrative remedies and we lack jurisdiction to review the denial of his CAT claim. See 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). 2 We review the BIA’s decision only, except to the extent that it expressly adopts the IJ’s opinion or IJ’s reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). 2 Case: 18-12709 Date Filed: 05/09/2019 Page: 3 of 6
judgment for that of the BIA with respect to credibility findings. Id. at 1254-55.
The BIA may base a credibility determination on the following:
. . . the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
“[A]n adverse credibility determination alone may be sufficient to support
the denial of an asylum application.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1287 (11th Cir. 2005). However, an adverse credibility finding “does not alleviate
the IJ's duty to consider other evidence produced by an asylum applicant,” and the
IJ may not “rely solely on an adverse credibility determination” where the
applicant produced “other evidence of persecution.” Id.
The record does not compel reversal of the BIA’s findings. See id. (stating we
will only reverse a credibility determination when the record compels reversal).
The BIA made its adverse credibility finding using “specific, cogent reasons” from
evidence in the record, not based “solely on speculation and conjecture,” or “on
personal perception or whim.” See Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d 486,
494 (11th Cir. 2013) (explaining where the IJ makes a determination based “solely
3 Case: 18-12709 Date Filed: 05/09/2019 Page: 4 of 6
on speculation and conjecture,” or “on personal perception or whim,” it is enough
to compel this Court to reverse an adverse credibility determination); Forgue, 401
F.3d at 1287 (providing when an adverse credibility finding is made, “the burden is
on the applicant alien to show that the IJ’s credibility decision was not supported
by specific, cogent reasons or was not based on substantial evidence”). The BIA
clearly articulated the five discrepancies it found using specific examples from
Rahman’s statement compared to his testimony. See Ruiz, 440 F.3d at 1254-55.
These inconsistencies and omissions noted by the BIA are supported by the record,
and even while Rahman provided tenable explanations for such discrepancies and a
contrary conclusion could be made, such is not enough to compel this Court to
overturn the BIA’s decision. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233
(11th Cir. 2006) (holding “while [the petitioner’s] explanations of the implausible
aspects of his claim are tenable, we cannot say, especially given the relative lack of
corroborating evidence, that these explanations would compel a reasonable fact
finder to reverse the IJ’s credibility determination”); 8 U.S.C. § 1158(b)(1)(B)(iii).
Next, Rahman’s additional supplementary evidence failed to corroborate his
claims on its own. The evidence Rahman submitted to corroborate his specific
claims giving rise to his asylum application—his brother’s and uncle’s affidavits
and the Liberal Democratic Party (LDP) certificates—contained inconsistencies
and omissions supporting the BIA’s adverse credibility finding. The Country
4 Case: 18-12709 Date Filed: 05/09/2019 Page: 5 of 6
Reports failed to specifically state the LDP suffered from Bangladesh Awami
League (BAL) oppression. While Rahman’s medical reports corroborate the dates
of his hospital visits, neither report states how Rahman was injured or why.
Rahman argues on appeal the BIA failed to consider the news articles he
submitted that stated he was attacked for being part of the LDP, and thus, the BIA
“cherry-picked omissions which were minor and for which [he] had plausible
explanations.” The BIA did not “rely solely on an adverse credibility
determination,” but rather, it looked to the totality of Rahman’s additional
evidence. See Forgue, 401 F.3d at 1287. However, the BIA need not “address
specifically each claim the petitioner made or each piece of evidence the petitioner
presented, but [it] must consider the issues raised and announce [its] decision in
terms sufficient to enable a reviewing court to perceive that [it has] heard and
thought and not merely reacted.” See Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948
(11th Cir. 2010) (stating the BIA need not “address specifically each claim the
petitioner made or each piece of evidence the petitioner presented, but [it] must
consider the issues raised and announce [its] decision in terms sufficient to enable
a reviewing court to perceive that [it has] heard and thought and not merely
reacted” (quotations omitted)). Thus, while the BIA did not comment on the news
reports Rahman submitted, which did tend to support his claims, the BIA clearly
detailed the inconsistencies and omissions it found through the entirety of
5 Case: 18-12709 Date Filed: 05/09/2019 Page: 6 of 6
Rahman’s statement, testimony, and supporting evidence such that review of its
decision sufficiently demonstrates that it heard and gave thought to Rahman’s
claims. Id. The BIA did not find inconsistencies that were not supported by the
record, which coupled with selective inclusion of supplemental evidence, could be
grounds for vacating its finding. See Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1280-81 (11th Cir. 2009) (vacating an adverse credibility finding when the IJ
found inconsistencies that were not truly inconsistent, coupled with only
selectively including supplemental evidence). Nor did the news reports constitute
such overwhelming import that remand is necessary in the face of the BIA’s
specific, cogent reasoning. See Kazamzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1355 (11th Cir. 2009) (holding “a remand is necessary when the record suggests
that the Board failed to consider important evidence in th[e] record”).
Accordingly, reversal of the BIA’s findings is not compelled and we deny
Rahman’s petition.
PETITION DENIED.