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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
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No. 21-12402 ____________________
MEHEDI HASAN-NAYEM, Petitioner, versus U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A213-538-941 ____________________ USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 2 of 27
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Before LAGOA, BRASHER, and ED CARNES, Circuit Judges. LAGOA, Circuit Judge: Mehedi Hasan-Nayem, a native and citizen of Bangladesh, seeks review of the Board of Immigration Appeals’ (“BIA”) final or- der affirming the immigration judge’s denial of his application for asylum, withholding of removal, and relief under the United Na- tions Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). In the removal proceedings, the immigration judge made an adverse credibility de- termination against Hasan-Nayem based on (1) inconsistencies and omissions between his hearing testimony and the documentary ev- idence in the record and (2) his demeanor at the hearing. The BIA affirmed the immigration judge’s adverse credibility determina- tion, finding that it was not clearly erroneous and adopting much of the immigration judge’s reasoning. In his petition, Hasan-Nayem argues that the BIA’s affir- mance of the adverse credibility determination was error. He con- tends that the findings in support of that determination are not sup- ported by substantial evidence in the record and that the immigra- tion judge failed to cite examples in her analysis of his demeanor. After careful review and with the benefit of oral argument, we conclude that substantial evidence supports the adverse credi- bility determination against Hasan-Nayem. Accordingly, we deny his petition for review. I. FACTUAL AND PROCEDURAL BACKGROUND USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 3 of 27
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Hasan-Nayem, a native and citizen of Bangladesh, entered the United States near McAllen, Texas, in December 2019. After an asylum officer determined that Hasan-Nayem had a credible fear of political persecution, the Department of Homeland Security filed a notice to appear, charging him with removal under 8 U.S.C. § 1182(a)(6)(A)(i) and (a)(7)(A)(i)(I). Hasan-Nayem, who at the time was proceeding pro se, conceded the charges of removability during a master calendar hearing on April 21, 2020. After obtaining counsel, Hasan-Nayem filed an application for asylum, withhold- ing of removal, and CAT relief. Because this case concerns an adverse credibility determina- tion against Hasan-Nayem based on inconsistencies and omissions between his hearing testimony and the documentary evidence as well as his demeanor at the hearing, we discuss the relevant evi- dence and testimony below. A. The Credible Fear Interview After Hasan-Nayem entered the United States, an asylum of- ficer conducted a credible fear interview with him. In that inter- view, Hasan-Nayem stated the following. Hasan-Nayem was afraid to return to Bangladesh because of the actions of people in the Awami League (the “AL”)—the ruling political party in Bangladesh—and the actions of the police. He was threatened once and physically harmed three times in Bangla- desh. USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 4 of 27
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On July 30, 2018, AL members threatened Hasan-Nayem in person because he worked for the Liberal Democratic Party (the “LDP”). About two weeks later, on August 15, 2018, ten to twelve AL members “came up” to Hasan-Nayem and “punch[ed]” him while he was putting up LDP posters. They also “beat” him “with their sticks,” tore down his posters, and told him to stop working for the LDP. At least one of the attackers had been part of the group that previously threatened him. On December 16, 2018, AL members came to a “meeting with sticks” and “beat” Hasan-Nayem. When asked how he was harmed, Hasan-Nayem stated that he was hit on his “arms and legs with sticks.” His friends faced similar beatings by AL members. The last time Hasan-Nayem was harmed, he was out buying medicine for his brother when AL members stopped him, started hitting him, and then injured him “with their sticks and knife.” When asked how they injured him with a knife, he stated it was his “hand and legs,” explaining that the members had aimed for his chest but he had moved, resulting in the hand and leg injuries— two stab wounds. Hasan-Nayem reported this incident to the po- lice, but the police stated that the attackers worked for the ruling party so “they couldn’t do anything” and that if he came back to the police again, they would make a false case and put him in jail. Hasan-Nayem could not return to Bangladesh because the AL would kill him for his work for the LDP. The AL would learn if he returned to Bangladesh because they know his name, have a photograph of him, and know where he and his family live. He USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 5 of 27
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could not live safely in another part of Bangladesh because “the second and third time [he] was beaten[,] [he] ran away”—to his grandfather’s house, the second time, and to his sister’s house, the third time—but AL members still found him because they asked around with his photo. He did not believe that the police or gov- ernment in Bangladesh could protect him because they all worked for the AL and would look the other way if he was harmed. B. Asylum Application and Supporting Documents Hasan-Nayem subsequently applied for asylum, withhold- ing of removal, and CAT relief. In his asylum application, Hasan- Nayem stated that AL members threatened him and attacked him three times. In support of his application, Hasan-Nayem submitted his own declaration in which he stated the following. AL members threatened him on July 30, 2018. On August 15, 2018, AL members attacked him, beating him “with bamboo sticks and hands.” Eventually, people came to his rescue and took him to a nearby doctor for medical attention. On December 16, 2018, Hasan-Nayem was returning home with a colleague from an LDP meeting when AL members attacked him. After this attack, he went to his maternal grandparents’ house and then went to the police station with his father to lodge a complaint against the AL members. But the officers did not help Hasan-Nayem because AL was the political party in power. The officers threatened him and his father, stating that if they ever returned, the officers would have him “arrested in false charges” and placed in jail. Additionally, while hiding at his grandparents’ house, AL members continued to USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 6 of 27
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threaten and look for Hasan-Nayem. On April 11, 2019, Hasan- Nayem came back to see his brother and was attacked by eight AL members while he was out getting medicine for his brother. The members abused him in “slang language” and “started hitting” him with “bamboo and hockey sticks” because of his affiliation with the LDP. A passerby and others eventually came to his aid and took him to the hospital, where he stayed for four days. Then, Hasan- Nayem went to his sister’s house in Dhaka to “save” his life. While there, he kept receiving threatening phone calls from AL members, and his sister and brother-in-law arranged for him to come to the United States. Hasan-Nayem also submitted affidavits from several family members and friends in support of his application, as well as medi- cal records and other documents. The relevant portions of the sup- porting documentation are as follows. In his affidavit, Hasan-Nayem’s father attested to the follow- ing. On August 15, 2018, AL members assaulted and injured Ha- san-Nayem. On December 16, 2018, AL members attacked his son, “beat[ing] him.” After being taken to and discharged from the hos- pital, Hasan-Nayem went to the police station, where he was re- fused assistance. His father, however, did not attest that he accom- panied Hasan-Nayem to the police station. On April 19, 2019, AL members attacked Hasan-Nayem, “badly beat[ing] him.” After AL members came looking for Hasan-Nayem while he was at the hos- pital, his father sent Hasan-Nayem to his daughter’s house in Dhaka. USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 7 of 27
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Hasan-Nayem’s mother also provided an affidavit contain- ing similar testimony. She did not mention anyone other than Ha- san-Nayem going to the police station. She stated that AL mem- bers came to their house while Hasan-Nayem was in the hospital following the April 2019 attack and that she informed them that her son was not in the village and had gone to Dhaka. In her affidavit, Hasan-Nayem’s sister attested as follows. AL members had attacked Hasan-Nayem three times, and he came to her house in Dhaka after the April 2019 attack. After Hasan- Nayem continued to receive threats over the phone, his sister and her husband made arrangements for Hasan-Nayem to leave Bang- ladesh. His sister, however, did not mention that AL members were searching for Hasan-Nayem in Dhaka with his photograph. Hasan-Nayem also submitted the affidavit of Imran Srabon, his friend and an LDP member. Srabon witnessed the December 2018 attack against Hasan-Nayem. Following the attack, Srabon stated that he went to the police station with Hasan-Nayem to re- port the attack; Srabon did not state whether Hasan-Nayem’s fa- ther accompanied them. Hasan-Nayem also provided the following medical records: (1) August 2018 records, which stated that he sustained multiple bruises on his face and other parts on his body; (2) December 2018 records, which stated that he suffered from a severe concussion and had various injury marks and swelling on his hands, legs, and other parts of the body due to physical assault; and (3) April 2019 records, which stated that he had multiple wounds, exhibited signs of USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 8 of 27
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trauma with blunt force (and objects), had a severed artery to his back causing internal hematoma and massive swelling, and had in- juries to his face, hands, and legs. He also submitted various docu- ments in support of his application: (1) a 2019 Human Rights Watch report on Bangladesh; (2) several news articles about har- assment and killings of LDP members; and (3) the U.S. State De- partment’s 2018 Human Rights Report for Bangladesh. C. Merits Hearing On January 13, 2021, Hasan-Nayem appeared with the assis- tance of counsel at a hearing before an immigration judge. He tes- tified as follows. Hasan-Nayem came to the United States in December 2019 to “save [his] life” because he was “a victim of political terrorism.” He was threatened by AL members one time face to face and many times over the phone and was attacked three times. At this point in the hearing, the immigration judge noticed that Hasan-Nayem was looking down at his hands before he re- sponded and ordered him to take off his jacket and put it behind his chair. The immigration judge told him to look at her when he was testifying so she could make sure that he was not looking at any- thing in front of him. She asked if he had anything written on his arms, hands, or the sleeves of the shirt he was wearing, and he said he did not. Hasan-Nayem then continued to testify as follows. AL members first threatened Hasan-Nayem on July 30, 2018, because he was an LDP member. AL members then attacked USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 9 of 27
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him on August 15, 2018, while he was putting up posters for the LDP. They kicked him and beat him up, and he received injuries on his arms, back, and legs. On December 16, 2018, AL members attacked Hasan- Nayem as he was coming back from an LDP meeting. The AL members kicked him, punched him, and beat him with their hands and bamboo sticks; he sustained injuries to his back, arms, and legs. Srabon helped him escape from the attackers. Both his father and Srabon went to the police station with him. The police stated that they supported the AL, would not help Hasan-Nayem, and would put him in jail if he came back to “file a case.” After the second attack, Hasan-Nayem went to his grandfather’s house for about four months, during which he received threats via the telephone. The third attack occurred on April 11, 2019, after Hasan- Nayem had returned to his own home because his brother was sick. As he was going to get medication for his brother, AL mem- bers approached him and started beating him up. Hasan-Nayem was rescued by a group of people, including one of his neighbors. They took Hasan-Nayem to the hospital, where he stayed for four days. He had “some cuts and bruises” and received stitches on his forehead and bandages. After this third attack, Hasan-Nayem went to his sister’s house in Dhaka, where he stayed for two months. While in Dhaka, he received threatening phone calls, and AL mem- bers came to the area near his sister’s house, showing people a pho- tograph of Hasan-Nayem and asking if they had seen him. His USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 10 of 27
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brother-in-law then arranged for Hasan-Nayem to go to the United States on June 24, 2019, to “save” his life. On cross-examination, the government asked Hasan- Nayem how he was harmed during the August 2018 attack, to which Hasan-Nayem first stated that he did not understand and then repeated his previous account of the attack. He then stated that the AL members kicked him, punched him, and hit him with sticks. His mother was threatened by AL members after the April 2019 attack. During the April 2019 attack, Hasan-Nayem sustained a cut to his forehead and a cut on his leg, and he had pain in his arms. The men used bamboo sticks, hockey sticks, their hands, and a knife during the April 2019 attack. He explained that he did not mention the knife in his declaration because the attackers mainly used bamboo sticks and hockey sticks. When asked why the April 2019 medical records did not mention stitches or bandages, Hasan- Nayem responded that he did not understand and that the medical records showed he received stitches and bandages. Hasan-Nayem believed that the AL members discovered his phone number through his SIM card registration and phone payment and that they could find him in Dhaka because AL members tell each other when people move. Hasan-Nayem testified that none of his family mem- bers told the AL members that he had gone to Dhaka. When asked why his mother had stated in her affidavit that she told the AL members that he had gone to Dhaka, Hasan-Nayem responded that he did not understand and, when asked again, he said that he did not know. When asked why his family members did not USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 11 of 27
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mention that he hid at his grandparents’ house in their affidavits, Hasan-Nayem responded that he did not understand and, when asked again, he responded he did not know. Upon questioning by the immigration judge, Hasan-Nayem further testified as follows. During the December 2018 incident, he sustained injuries to his arms, back, and legs, but did not recall why the medical record did not mention any injuries to his head. The immigration judge asked why he had not mentioned the con- cussion that was described in his medical records, and he said he did not remember. Hasan-Nayem also testified that he knew of other general LDP workers that were threatened and attacked by AL members. On redirect examination, Hasan-Nayem testified to the fol- lowing. While he was in the hospital after the April 2019 attack, AL members spoke to his mother at their home, but he did not know what she said to them. When Hasan-Nayem was staying with his sister, he was told that AL members were showing his pic- ture but did not know where they were showing it. D. The Immigration Judge’s and BIA’s decisions On January 19, 2021, the immigration judge issued an oral decision denying Hasan-Nayem’s application for relief from re- moval. The immigration judge stated that she had considered all the evidence presented in the case and that, after considering all the circumstances and all the relevant factors, found that Hasan- Nayem did not testify credibly. The immigration judge noted that, USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 12 of 27
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at “first blush,” Hasan-Nayem and the eye witnesses were con- sistent with respect to the dates of his three attacks and the tele- phonic threats. But, “upon closer examination,” she found that (1) Hasan-Nayem’s testimony “was at times inconsistent with the other evidence of record and internally inconsistent[,]” (2) there were “omissions and inconsistency between his testimony and the witnesses’ affidavits and the proffered medical evidence[,]” and (3) “[s]ome of the corroborating evidence [did] not support [his] testi- mony or [was] inconsistent with other evidence.” Further, the im- migration judge had “plausibility concerns regarding the crux of his claim that as a 20-year-old general worker for the LDP he was tar- geted with death by AL supporters.” And, “with respect to his de- meanor,” the immigration judge found that Hasan-Nayem “gave the impression at times that he was recalling words or phrases that had been memorized rather than describing events fully as they ac- tually happened to him,” e.g., he “repeated his prior response ver- batim rather than respond to the question asked.” The judge found that this “came across as evasive and nonresponsive.” As to the inconsistencies and omissions, the immigration judge found “significant discrepancies” between Hasan-Nayem’s prior statements and hearing testimony about the injuries that he sustained during the December 2018 and April 2019 attacks. While Hasan-Nayem testified he was cut on the forehead (and required stitches) after the April 2019 attack, he testified during the credible fear interview that he was stabbed with a knife twice on his hand and legs. But, in his declaration, he omitted the knife, describing USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 13 of 27
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only being hit with bamboo and hockey sticks. Further, at the hear- ing, Hasan-Nayem never mentioned being stabbed or cut any- where else than his forehead. And the hospital’s “injury certificate” omitted any mention of stab wounds or Hasan-Nayem being treated for cuts or receiving sutures and bandages for those inju- ries. Rather, the certificate stated that he “suffered multiple wounds with signs of trauma with blunt force” and “had a severed artery to his back causing internal hematoma and massive swell- ing.” But, the immigration judge explained, Hasan-Nayem did not mention such back injuries or swelling. As to the December 2018 attack, the immigration judge found that Hasan-Nayem’s testi- mony was inconsistent with the letter from the medical services and eye treatment clinic. Hasan-Nayem did not mention the se- vere concussion noted in the clinic’s letter; he simply mentioned injuries to his back, arms, and legs. The immigration judge also found Hasan-Nayem’s testi- mony about who accompanied him to the police station internally inconsistent as well as inconsistent with the corroborating evi- dence. Hasan-Nayem testified that he went to the police station with his father and Srabon, but Hasan-Nayem’s declaration af- firmed that he went only with his father. By contrast, Srabon’s af- fidavit reflected he and Hasan-Nayem went to the police station alone, not accompanied by Hasan-Nayem’s father. And the fa- ther’s affidavit mentioned only that Hasan-Nayem went to the po- lice station; it did not state that he accompanied his son nor did it mention Srabon. USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 14 of 27
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Additionally, the immigration judge noted that, while Ha- san-Nayem claimed he was residing at his grandfather’s house, none of the affidavits from his family members corroborated that he was in hiding at that house. The immigration judge also noted that, while Hasan-Nayem claimed that AL members showed his photograph near his sister’s house, his sister’s affidavit did not men- tion that fact. And the immigration judge also noted that Hasan- Nayem’s testimony was inconsistent with his mother’s affidavit— while his mother attested that she told the AL members that her son went to Dhaka, Hasan-Nayem testified that no one had told the AL of his whereabouts. Considering the totality of the circumstances, the immigra- tion judge found that Hasan-Nayem was not credible given the dis- crepancies between his testimony and the corroborating evidence that he submitted. 1 The immigration judge therefore denied Ha- san-Nayem’s application for asylum and withholding of removal because he could not meet his burden of proof given the adverse credibility finding, and also denied his CAT claim.
1 The immigration judge also had additional concerns with other supporting documents that caused her to question the plausibility of Hasan-Nayem’s claim—whether Hasan-Nayem, as an LDP general worker, was specifically targeted for harm by the AL. The BIA did not rely on this reasoning in affirm- ing the immigration judge’s decision, and we therefore do not consider it when reviewing Hasan-Nayem’s petition. See Jathursan v. U.S. Att’y Gen., 17 F.4th 1365, 1372 (11th Cir. 2021). USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 15 of 27
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Hasan-Nayem appealed to the BIA and challenged the im- migration judge’s adverse credibility finding, arguing that, under the totality of the circumstances, he had presented a detailed and credible claim of past harm and a well-founded fear of future harm on account of his political opinion and that the adverse credibility finding was not supported by the record. The BIA upheld the immigration judge’s credibility finding on the basis that it was not clearly erroneous and dismissed the ap- peal. The BIA, citing the immigration judge’s order, explained that the immigration judge “properly based her adverse credibility de- termination on inconsistencies between [Hasan-Nayem’s] testimo- nial and documentary evidence, as well as his in-court demeanor.” As to the April 2019 attack, the BIA noted that the immigration judge found that Hasan-Nayem inconsistently described the inju- ries he sustained. During his credible fear interview, he stated he was stabbed, but omitted that fact during his testimony and in his declaration. And, the BIA explained, the medical record did not reflect a stabbing; rather, it noted a “wound.” The BIA rejected Hasan-Nayem’s argument that the immigration judge failed to mention the extent of his injuries, noting that the immigration judge considered the totality of the evidence and found inconsist- encies in his statements. Further, as to the wound versus stabbing distinction, the BIA explained that it was reasonable for the immi- gration judge to doubt that the words were synonymous given that the medical report did not use wound synonymously with other injuries like blunt force trauma. The BIA also noted the USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 16 of 27
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immigration judge found that Hasan-Nayem was inconsistent in describing the weapons used during that attack, explaining there were contradictions in his testimony. The BIA then explained that the immigration judge also found inconsistencies regarding the December attack, e.g., who ac- companied Hasan-Nayem to the police station, and rejected Ha- san-Nayem’s argument that these were minor omissions. The BIA explained that the immigration judge “may base an adverse credi- bility determination on any inconsistencies in the applicant’s state- ments, without regard to whether they go to the heart of the asy- lum claim.” The BIA further noted that Hasan-Nayem’s testimony about his stay at his grandfather’s house contradicted his family members’ affidavits, all of which omitted that fact. The BIA ex- plained that there were “several plausible explanations for where the respondent could have been when his family said he was away, yet there is no corroborating evidence that he was at his grandfa- ther’s house as he claims.” And the BIA recognized that the immi- gration judge had found significant facts omitted from his sister’s affidavit, e.g., the AL members showing his photo in Dhaka. While Hasan-Nayem argued that it was because affidavits usually lack such intricate detail, the BIA did not find clear error as to this point. The BIA also noted the immigration judge’s finding of incon- sistency as to whether Hasan-Nayem’s mother had told AL mem- bers of his location in Dhaka and determined that the finding was not clearly erroneous. USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 17 of 27
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As to the immigration judge’s finding that Hasan-Nayem “was not credible because he was unresponsive to questions asked of him and gave the impression that he was recalling words and phrases he had memorized,” the BIA rejected Hasan-Nayem’s ar- gument that the immigration judge was not specific enough for him to challenge her demeanor observations. The BIA noted that there were specific instances of evasiveness and nonresponsiveness in the record, citing to specific pages of the hearing transcript. And, as the BIA explained, it deferred to the immigration judge for de- meanor observations because she had a unique advantage in deter- mining whether the testimony was true. Finally, the BIA found that the documentary evidence provided was not sufficient to re- habilitate Hasan-Nayem’s credibility, given some of it conflicted with his testimony. Therefore, after considering the totality of the circum- stances and all relevant factors, the BIA found that Hasan-Nayem failed to establish that the adverse credibility finding was clearly er- roneous and affirmed the denial of the application for asylum and withholding of removal and the denial of CAT relief. This petition for review followed. II. STANDARD OF REVIEW We review only the BIA’s decision, except where “the BIA expressly adopted or agreed with the immigration judge’s deci- sion.” Jathursan v. U.S. Att’y Gen., 17 F.4th 1365, 1372 (11th Cir. 2021); see also Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir. 2010). Additionally, where, as here, the BIA issues an opinion USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 18 of 27
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relying on the immigration judge’s decision and reasoning without expressly adopting that decision, we review the immigration judge’s decision to the extent that the BIA found the immigration judge’s reasoning was supported by the record, and we review the BIA’s decision as to issues on which it rendered its own opinion and reasoning. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We review the BIA’s legal conclusions de novo, Jathursan, 17 F.4th at 1372, and we review the BIA’s factual determinations under the substantial evidence test. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Under the substantial evidence test, “we will not disturb an immigration judge’s factual findings so long as they are ‘supported by reasonable, substantial, and proba- tive evidence on the record considered as a whole.’” Jathursan, 17 F.4th at 1372 (quoting Lopez v. U.S. Att’y Gen., 914 F.3d 1292, 1297 (11th Cir. 2019)); accord Adefemi v. Ashcroft, 386 F.3d 1022, 1026– 27 (11th Cir. 2004) (en banc). Additionally, “[u]nder the substantial evidence test, we review the record evidence in the light most fa- vorable to the agency’s decision and draw all reasonable inferences in favor of that decision.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) ) (alteration in original) (quoting Adefemi, 386 F.3d at 1027). And we reverse factual findings “only if the record compels reversal, and the mere fact that the record may support a contrary conclusion is insufficient to justify reversal.” Jathursan, 17 F.4th at 1372 (quoting Lopez, 914 F.3d at 1297); accord Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009). USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 19 of 27
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“As with other factual findings, ‘[c]redibility determinations likewise are reviewed under the substantial evidence test.’” Forgue, 401 F.3d at 1286 (alteration in original) (quoting D-Mu- humed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004)). As to credibility determinations, “[t]he trier of fact must determine credibility, and this court may not substitute its judgment for that of” the BIA and immigration judge with respect to credibility find- ings. Id. (alteration in original) (quoting D-Muhumed, 388 F.3d at 818). III. ANALYSIS In his petition, Hasan-Nayem argues that the BIA erred in affirming the immigration judge’s denial of his application for asy- lum and withholding of removal. 2 Specifically, Hasan-Nayem con- tends that the BIA erred in affirming the immigration judge’s ad- verse credibility determination, which was based on (1) inconsist- encies and omissions between his hearing testimony and documen- tary evidence in the record and (2) his observed demeanor at the hearing, because it is not supported by substantial evidence. 3 In
2Hasan-Nayem does not challenge the denial of his application for CAT relief and has therefore abandoned this issue. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 3 Additionally, Hasan-Nayem raisesan “unfair surprise” or lack of notice argu- ment as to the immigration judge’s adverse credibility determination about inconsistencies and omissions between his testimony and other evidence in the record. He contends that he was unaware of such inconsistencies and omissions before the immigration judge issued her decision. As the govern- ment notes, however, he did not make such an argument before the BIA. USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 20 of 27
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response, the government contends that the record contains sub- stantial evidence that supports the adverse credibility determina- tion.4 Under 8 U.S.C. § 1158(b)(1), the Attorney General has dis- cretion to grant asylum to an alien who qualifies as a “refugee.” To establish eligibility for asylum, the applicant bears the burden of proving his statutory “refugee” status. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006). To do so, the applicant “must, with specific and credible evidence, establish (1) past persecution on account of race, religion, nationality, membership in a particu- lar social group, or political opinion; or (2) a well-founded fear of future persecution on account of a statutorily-protected ground.” Id. To meet his burden, the applicant must offer “credible, direct,
Rather, in his brief to the BIA, Hasan-Nayem merely sought to explain or min- imize any omissions and inconsistencies between his testimony and the other record evidence. Thus, Hasan-Nayem failed to exhaust this argument before the BIA. And we lack “jurisdiction to consider a claim raised in a petition for review unless the petitioner has exhausted his administrative remedies with respect thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); accord 8 U.S.C. § 1252(d)(1). Accordingly, this Court lacks jurisdiction to consider this lack of notice argument. 4 The government also raises the immigration judge’s findings about inconsist-
ences in Hasan-Nayem’s testimonial and documentary evidence about the in- juries he sustained in the December 2018 attack. But the BIA did not explicitly discuss the immigration judge’s findings on this aspect of the December attack. Because the BIA did not expressly adopt or rely on this portion of the immi- gration judge’s decision, we will not review this aspect of the immigration judge’s findings. See Gonzalez, 820 F.3d at 403. USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 21 of 27
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and specific evidence” into the record. Forgue, 401 F.3d at 1287 (quoting Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)). If the applicant’s testimony is credible, “it may be sufficient, without corroboration, to satisfy his burden of proof in establishing his eligibility for relief from removal.” Kueviakoe, 567 F.3d at 1304; see also D-Muhumed, 388 F.3d at 818–19. But an immigration judge’s denial of asylum relief “can be supported solely by an ad- verse credibility determination, especially if the alien fails to pro- duce corroborating evidence.” Kueviakoe, 567 F.3d at 1304–05 (cit- ing Forgue, 401 F.3d at 1287). When the immigration judge explicitly determines that an applicant lacks credibility, he “must offer specific, cogent reasons for the finding.” Id. In doing so, the immigration judge, consider- ing “the totality of the circumstances, and all relevant factors”: may base a credibility determination on the de- meanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the appli- cant’s or witness’s written and oral statements (when- ever made and whether or not under oath, and con- sidering the circumstances under which the state- ments 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 state- ments, without regard to whether an inconsistency, USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 22 of 27
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inaccuracy, or falsehood goes to the heart of the ap- plicant’s claim, or any other relevant factor. . . . 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). Once the immigra- tion judge does so, the burden shifts to the applicant to show that the adverse credibility determination was either not supported by “specific, cogent reasons” or not based on substantial evidence. Chen, 463 F.3d at 1232 (quoting Forgue, 401 F.3d at 1287). It mat- ters not if the inconsistencies, omissions, or discrepancies are “triv- ial” or “irrelevant to the dispositive issues.” Id. at 1233. But even if the immigration judge finds an applicant not credible, the immi- gration judge still has a duty to consider other evidence produced by an asylum applicant. Forgue, 401 F.3d at 1287. While the immigration judge and BIA must consider all the evidence presented by the applicant, they need not “address specif- ically each claim the petitioner made or each piece of evidence the petitioner presented.” Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011) (quoting Ayala, 605 F.3d at 948). They simply “must consider the issues raised and announce their decision in terms sufficient to enable a reviewing court to perceive that they have heard and thought and not merely reacted.” Id. (quoting Ayala, 605 F.3d at 948). Further, even where an applicant’s expla- nations for implausible aspects of his claim are tenable—e.g., expla- nations for inconsistencies and omissions—that alone generally does not compel a reasonable fact-finder to reverse an adverse cred- ibility determination. See Chen, 463 F.3d at 1233 (noting the lack of corroborating evidence to support the petitioner’s “tenable” USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 23 of 27
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explanations). Indeed, we “must be mindful too that the agency, like any reasonable factfinder, is free to ‘credit part of [a] witness’ testimony without’ necessarily ‘accepting it all.’ It does not matter whether the agency accepts all, none, or some of the alien’s testi- mony; its reasonable findings may not be disturbed.” Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021) (quoting Banks v. Chi. Grain Trimmers Ass’n, 390 U.S. 459, 467 (1968)). And when the immi- gration judge bases an adverse credibility determination on his as- sessment of the applicant’s demeanor, we afford great deference to that assessment, although the determination still must rest on sub- stantial evidence. Todorovic v. U.S. Atty. Gen., 621 F.3d 1318, 1325 (11th Cir. 2010). For example, in Xia v. U.S. Att’y Gen., 608 F.3d 1233 (11th Cir. 2010), an immigration judge rendered an adverse credibility determination against the petitioner, which was affirmed by the BIA. Id. at 1237–38. While the petitioner argued that the adverse credibility determination was not supported by substantial evi- dence, this Court disagreed, concluding that the immigration judge offered specific, cogent reasons, supported by the record, for the determination such that the record did not compel reversal. Id. at 1240–41. In doing so, this Court explained that the immigration judge “listed several discrepancies and omissions that rendered it less than believable,” e.g., the petitioner’s testimony included “at least one internal inconsistency (how old she was when she had [an] abortion) and one omission (identifying data on the abortion operations certificate).” Id. at 1240. This Court also noted that the USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 24 of 27
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petitioner “did not provide corroborating evidence that would have rebutted these inconsistencies and omissions.” Id. Applying these standards and reviewing the totality of the record, we conclude that substantial evidence supports the BIA’s decision affirming the immigration judge’s adverse credibility find- ing based on inconsistencies and omissions between Hasan- Nayem’s hearing testimony and his supporting documentary evi- dence. For example, as to who accompanied Hasan-Nayem to the police station following the December 2018 attack, Hasan-Nayem testified that both his father and Srabon accompanied him. But Ha- san-Nayem’s declaration only mentioned that his father accompa- nied him to the police station; Srabon’s affidavit only mentioned that he accompanied Hasan-Nayem to the police station; and his father’s affidavit did not state that anyone accompanied Hasan- Nayem. While Hasan-Nayem argues that none of the statements explicitly contradict one another on this topic and that any omis- sions are not significant, “the mere fact that the record may support a contrary conclusion,” see Jathursan, 17 F.4th at 1372 (quoting Lopez, 914 F.3d at 1297), or that Hasan-Nayem has offered a “ten- able” explanation for the inconsistencies, see Chen, 463 F.3d at 1233, does not compel reversal. Further, contrary to Hasan- Nayem’s argument, it matters not whether the inconsistencies and omissions forming the basis of the adverse credibility determina- tion are “trivial” or “irrelevant to the dispositive issues” so long as they are supported by substantial evidence. See id. USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 25 of 27
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Beyond the inconsistencies in the record evidence as to who accompanied Hasan-Nayem to the police station, the other incon- sistencies and omissions identified by the immigration judge and the BIA are supported by substantial evidence. For example, Ha- san-Nayem testified that no one in his family had informed the AL that he had fled to Dhaka following the April 2019 attack. But his mother attested that she had informed AL members of this fact. While Hasan-Nayem argued to the BIA that “his mother did not technically reveal his location because he was at the hospital” when the AL members asked about Hasan-Nayem, the BIA rejected this argument, concluding that it was not clear error for the immigra- tion judge to find that there were contradictions in the testimony and evidence on this fact, especially when Hasan-Nayem had ac- cess to his mother’s affidavit before testifying. For similar reasons, we find Hasan-Nayem’s argument unavailing—even if his explana- tion is “tenable,” substantial evidence nonetheless supports the BIA’s finding. These inconsistencies and omissions alone are “specific, co- gent reasons,” supported by the record, for the adverse credibility determination against Hasan-Nayem. See Xia, 608 F.3d at 1240. But we note that the BIA and immigration judge found further in- consistencies and omissions as to (1) the nature of the weapon used against Hasan-Nayem and the type of injuries he suffered in the April 2019 attack, (2) Hasan-Nayem’s location in the time between the December 2018 and April 2019 attack, and (3) the AL showing a photograph of Hasan-Nayem around Dhaka after the April 2019 USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 26 of 27
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attack. While Hasan-Nayem offers tenable explanations for these inconsistencies and omissions, those explanations are not enough to compel reversal of the adverse credibility finding where, as here, substantial evidence supports those additional findings of the BIA and the immigration judge. See Chen, 463 F.3d at 1233. Finally, the immigration judge partially based her adverse credibility determination on her assessment of Hasan-Nayem’s de- meanor at the hearing as evasive and nonresponsive, stating that he “gave the impression at times that he was recalling words or phrases that had been memorized rather than describing events fully as they actually happened to him.” We have explained that the immigration judge “alone is positioned to make determinations about demeanor—by observing the alien and assessing his or her tone and appearance—and in that sense is ‘uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.’” Todorovic, 621 F.3d at 1324 (quoting Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003)). While Hasan-Nayem contends that the immigration judge’s demeanor analysis failed to cite spe- cific examples, the BIA, in affirming the immigration judge’s deci- sion, found that there were several instances of evasiveness and nonresponsiveness in the record, e.g., when the immigration judge interrupted Hasan-Nayem’s testimony while he was looking down at his hands when responding to questions from counsel. Thus, there is substantial evidence in support of the demeanor determi- nation. See id. at 1325. USCA11 Case: 21-12402 Document: 39-1 Date Filed: 12/07/2022 Page: 27 of 27
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In sum, the immigration judge and the BIA offered “specific, cogent reasons,” supported by substantial evidence in the record, for determining that Hasan-Nayem’s testimony was not credible, and this record does not compel us to reverse that adverse credibil- ity determination. See Xia, 608 F.3d at 1240–41. Accordingly, we affirm the BIA’s decision and deny Hasan-Nayem’s petition for re- view. IV. CONCLUSION For these reasons, we deny Hasan-Nayem’s petition for re- view. PETITION DENIED.