Shamil Guseynovich Gaziev v. U.S. Attorney General

562 F. App'x 881
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 8, 2014
Docket13-13297
StatusUnpublished

This text of 562 F. App'x 881 (Shamil Guseynovich Gaziev v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shamil Guseynovich Gaziev v. U.S. Attorney General, 562 F. App'x 881 (11th Cir. 2014).

Opinion

PER CURIAM:

Shamil Guseynovich Gaziev, a Russian citizen of Avar ethnicity, seeks review of the Board of Immigration Appeals’s (“BIA”) order denying his application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”). The BIA *883 concluded that Gaziev waived his CAT claim, and rejected his claim for asylum and withholding of removal, accepting the Immigration Judge’s (“IJ”) adverse credibility finding and determining that Gaziev failed to show persecution on account of a protected ground. On appeal, Gaziev argues that: (1) the adverse credibility determination was erroneous; (2) the IJ and BIA made errors concerning his documentary evidence; (3) he was entitled to asylum and withholding of removal; and (4) he was entitled to CAT relief. After careful review, we deny the petition in part, and dismiss it in part.

We review the BIA’s decision, unless the BIA has expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.2007). Here, the BIA accepted and relied on parts of the IJ’s decision and reasoning; we review those parts of the IJ’s decision in addition to reviewing the BIA’s decision in full.

We review the BIA and IJ’s legal determinations de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.2004). We review the BIA and IJ’s fact determinations, including credibility determinations, for substantial evidence, which means we will affirm if the decision is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id. at 817-18. We will reverse only if the evidence compels a reasonable fact-finder to find otherwise. Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir.2009).

First, we are unpersuaded by Ga-ziev’s claim that the IJ and BIA erred in making an adverse credibility determination. Under the REAL ID Act of 2005, credibility determinations are based upon the totality of the circumstances, including: (1) the demeanor, candor, and responsiveness of the applicant; (2) the plausibility of the applicant’s account; (3) the consistency between the applicant’s written and oral statements; (4) the internal consistency of each statement; (5) the consistency of the applicant’s statements with other record evidence, including country reports; and (6) 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. See 8 U.S.C. § 1158(b)(l)(B)(iii); Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir.2006). The BIA must offer specific, cogent reasons for an adverse credibility determination, and the applicant bears the burden of proving that the determination was not supported by specific, cogent reasons, or was not based upon substantial evidence. Chen, 463 F.3d at 1231. A petitioner’s tenable explanations of the implausibility of his claim do not necessarily compel a reasonable fact finder to reverse the credibility determination. Id. at 1233.

Here, substantial evidence supports the adverse credibility determination. As the record shows, Gaziev presented conflicting accounts of a particular incident, indicating in his asylum application that he and two other individuals were arrested, indicating in his asylum interview that he and three other individuals were arrested, and indicating at his hearing that he and two other individuals were arrested. He was questioned about the inconsistencies, and each time, asserted that whatever he had said previously was incorrect and that his current statement was the correct account of the event. Furthermore, he provided conflicting explanations for the inconsistencies — first that his statement in his asylum application was a mistake in translation, and later that his statement at the asylum interview was an error. Finally, although it is not necessary that the inconsistencies go to the “heart of the claim,” in this case, they do relate to one of the more significant incidents alleged by Gaziev. Thus, *884 based on the inconsistencies in his different accounts, and his failure to provide a reasonable explanation for these discrepancies, substantial evidence supports the adverse credibility determination. We deny Gaziev’s petition in this respect.

We also reject Gaziev’s claim that he was not given an opportunity to address missing documentation, and that the BIA erred in discounting his corroborating documents. It is well settled that an asylum applicant has the burden of proving the “refugee” status that entitles him to be considered for asylum. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290 (11th Cir.2006); 8 C.F.R. § 208.13(a). An adverse credibility determination may be sufficient to deny relief where there is no other evidence of persecution. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.2005). However, even if an IJ finds an applicant not credible, he must consider all evidence introduced by the applicant. Id. Generally, “[t]he weaker an applicant’s testimony ... the greater the need for corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.2005).

In this case, Gaziev’s claim that he was not given the opportunity to address potentially missing documents is not supported by the record because the IJ discussed the lack of supporting documents, on the record and at length, noting specific issues related to Gaziev’s submission of documents. Plus, Gaziev misconstrues the BIA’s decision when he says that the BIA discounted medical documents and statements from law enforcement because they did not contain information about why Ga-ziev was beaten. Rather, the record shows that the BIA merely concluded that these documents could not be used to show that Gaziev was beaten due to his ethnicity. Gaziev had the burden to establish persecution based on his ethnicity, whether through the documents in question or through other evidence, and he failed to do so. We also deny Gaziev’s petition in this respect.

Next, we are unconvinced by Ga-ziev’s claim that he demonstrated a well-founded fear of persecution. To establish eligibility for asylum relief, the alien must, with specific and credible evidence, establish (1) past persecution on account of a statutorily listed factor, or (2) a well-founded fear that the statutorily listed factor will cause future persecution. 8 C.F.R. § 208

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Bluebook (online)
562 F. App'x 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shamil-guseynovich-gaziev-v-us-attorney-general-ca11-2014.