[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 08-14055 ELEVENTH CIRCUIT APRIL 3, 2009 Non-Argument Calendar THOMAS K. KAHN ________________________ CLERK
Agency No. A98-359-656
SOUMITRA FAYAZI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals _________________________
(April 3, 2009)
Before BIRCH, DUBINA and ANDERSON, Circuit Judges.
PER CURIAM: Soumitra Fayazi (“Fayazi”), a native and citizen of Iran, seeks review of the
Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) denial of her 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 or Degrading
Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c).
Fayazi argues that the IJ and the BIA erred in finding that her testimony was not
credible and that the IJ erred in refusing to allow testimony from one of her
witnesses. We find both arguments to be without merit. We also note that Fayazi
advances several explanations that might have incorrectly influenced the IJ’s
adverse credibility determination. Because these claims were not raised before the
BIA, however, we are not at liberty to review them here. Accordingly, we DENY
the petition in part, and DISMISS it in part.
I. BACKGROUND
Fayazi entered the United States on or about 14 September 2004 with a
nonimmigrant K-1 fiancee visa granting her authorization to remain in the United
States until 13 December 2004. See Administrative Record (“AR”) at 281. Fayazi
filed an application for asylum and withholding of removal under the INA and
CAT on 7 December 2004. Id. at 265-74. She claimed eligibility based on her fear
2 of persecution in Iran on account of her conversion from Islam to Christianity. Id.
at 270.
In her application, Fayazi stated that she had worked for Tirdad
Transportation Company (“TTC”) in Iran until March 2004. Id. at 269. Her
asylum application included the following assertions, among others: (1) one of her
friends was arrested and tortured for three days after leaving an underground
church meeting; (2) the Iranian Revolutionary Guard (“IRG”) routinely checks the
identity of everyone who enters a church; (3) conversion from Islam to Christianity
is punishable by death in Iran; and (4) in 2004, based on a tip from her coworker,
the IRG searched Fayazi’s parents’ house in an effort to find her, confiscated all of
her books, and damaged her parent’s furniture in the process. Id. at 270-71.
At her initial hearing before the IJ, Fayazi, proceeding pro se, conceded her
removability. Id. at 110-11. Fayazi testified that she was baptized a Christian in
March 1999, after previously familiarizing herself with the faith through self-study
and interaction with two Christian neighbors. Id. at 127-31. According to Fayazi,
she traveled to Dubai in August 2004 in order to obtain her K1 visa. Id. at 133-34.
While there, Fayazi claimed that her mother in Iran called her and informed her
that the IRG had raided the family home and had confiscated all of her books,
including her Bible. Id. at 135. Fayazi’s testimony did not include any mention of
broken furniture, as detailed in her initial asylum application. 3 After the phone call, Fayazi informed her fiancee that she had converted to
Christianity, that the Iranian government knew of her conversion and was looking
for her, and that Christian converts are considered guilty of apostasy and executed
in Iran. Id. at 136. Nevertheless, she returned to Iran and stayed there, without
incident, until her departure for the United States about a month later. Id. at 137-
38. While in Iran, her fiancee broke off their engagement. Fayazi claimed to have
had no contact with him since the termination of the engagement in August 2004.
Id. at 138.
According to Fayazi, she encountered no problems when she flew out of
Tehran into Dubai and out of Tehran and into the United States, despite being
actively sought by the IRG. Id. at 142-43. When questioned about her decision to
return to Iran from Dubai in the face of possible execution by the Iranian
government, Fayazi claimed to have had nowhere else to go at the time. Id. at 144-
45, 149. When asked why she encountered no difficulties in Iran for almost four
years after her conversion, Fayazi stated that she kept her religious beliefs to
herself during that period. Id. at 146.
Fayazi then divulged her belief that the IRG raid on her family’s home in
August 2004 was triggered by a tip from a coworker with whom she had discussed
her conversion in August 2003. Id. at 146, 154. Fayazi stated that she was fired
from her job at TTC in the summer of 2004 as a result of being reported by this 4 coworker. Id. at 147-49. This account differs from that provided in her asylum
application. In her asylum application, Fayazi does not mention being fired from
her position at all but indicates only that her employment ended in March 2004.
Id. at 269. Fayazi ultimately conceded that she was fired from her job before she
made the trip to Dubai in August 2004. Id. at 149. Finally, Fayazi’s testimony
before the IJ did not include any reference to either the arrest and torture of her
friend in 1999 or Fayazi’s harassment by the IRG, although both events were
documented in her asylum application. Id. at 270.
The documentary evidence on record before the IJ consisted of the
following: 1) the 2003 Department of State International Religious Freedom
Report (“2003 Freedom Report”); 2) the 2005 Department of State International
Religious Freedom Report (“2005 Freedom Report”); 3) the 2005 Department of
State Country Report on Human Rights Practices for Iran (“2005 Human Rights
Report”); 4) three letters from members of Morningside Baptist Church in
Spartanburg, South Carolina; 5) a copy of Fayazi’s passport and I-94; 6) a copy of
her Iranian identification certificate; and 7) a copy of her university diploma. Id. at
173-234. In addition, Fayazi sought to have a friend from South Carolina testify
on her behalf. The IJ, after hearing the friend’s proffered testimony, determined
that the testimony would be repetitious and did not allow it. Id. at 82-83. After
consideration of the documentary evidence and Fayazi’s testimony, the IJ found 5 Fayazi not credible due to numerous inconsistencies in her testimony, omissions in
her asylum application and her testimony, implausibilities in her story, and
misrepresentations made to customs officials when entering the United States. Id.
at 90-101. Fayazi appealed the IJ’s decision to the BIA.
The BIA affirmed the IJ’s decision and dismissed Fayazi’s appeal. The BIA
did not adopt or affirm the IJ’s findings relating to certain inconsistencies in
Fayazi’s testimony, however. Id. at 3. Nevertheless, the BIA found no clear error
with the IJ’s adverse credibility determination due to Fayazi’s omission of certain
details in her persecution claim and her failure to adequately explain those
omissions in her testimony before the IJ. Id. In particular, the BIA noted the
following omissions: 1) Fayazi’s omission in her asylum application of the fact
that she was fired from her job as a result of her coworker reporting her conversion
to Christianity; and 2) her failure to provide details in her testimony concerning the
damage done to her family’s furniture during the IRG’s raid on her family’s house.
Id. Moreover, the BIA found “no evidence in the record that [Iranian] authorities
currently are looking for or otherwise have a continuing interest in [Fayazi].” Id.
Finally, the BIA determined that the record evidence did not establish that it was
more likely than not that Fayazi would be tortured if returned to Iran. Id.
6 II. DISCUSSION
Fayazi challenges the BIA’s affirmance of the IJ’s adverse credibility
determination and the denial of her application for asylum, withholding of removal
and relief under the CAT. Fayazi also contends that the IJ erred in precluding her
from calling a witness to testify on her behalf. Although not styled as such, we
will analyze her argument concerning the exclusion of evidence as a due process
challenge.
A. Standard of Review
We review administrative fact findings, including credibility determinations,
under the highly deferential substantial evidence test, which requires that the
record evidence be viewed in the light most favorable to the agency’s decision.
See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). Facts not
raised in the administrative forum will not be considered, nor will we “reweigh the
evidence from scratch.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc) (quotation marks and citation omitted). We review only the BIA’s
decision, unless the BIA expressly adopted the IJ’s decision. Ruiz v. Gonzales,
479 F.3d 762, 765 (11th Cir. 2007). “Insofar as the [BIA] adopts the IJ’s
reasoning, we will review the IJ’s decision as well.” Al Najjar v. Aschroft, 257
F.3d 1262, 1284 (11th Cir. 2001). As we have stated before, we lack jurisdiction
7 to review claims that were not raised before the BIA. Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam).
We are not permitted to substitute our judgment for that of the BIA with
respect to credibility findings, and we cannot overturn a credibility finding unless
the record compels it. See Forgue, 401 F.3d at 1287. When an applicant does not
produce any evidence of persecution other than her testimony, an adverse
credibility determination is sufficient to support the denial of an asylum
application, but, if she produces corroborating evidence of persecution, the IJ must
consider the evidence and cannot deny the application based solely on the
credibility determination.1 Id. The IJ is required to provide “specific, cogent
reasons” for making an adverse credibility finding, and the petitioner bears the
burden of demonstrating that the credibility finding was not supported by specific,
cogent reasons or was not based on substantial evidence. Id. As we have said in
the past, “[i]ndications of reliable testimony include consistency on direct
1 In Forgue, the petitioner, who sought political asylum, withholding of removal, and relief under CAT, testified at his asylum hearing that (1) he had been an election monitor in Haiti, (2) he refused to allow a group of individuals, including a candidate, to vote at the location that he was monitoring because it was not their assigned polling place, and (3) they responded by dousing him with acid, burning his house, and beating up his son. Id. at 1285. The IJ found that Forgue’s testimony was not credible because he did not include in his asylum application the facts that (1) he had been a poll worker, (2) he had been doused with acid, or (3) his son had been assaulted. Id. We concluded that the omission of these facts from Forgue’s asylum application provided substantial evidence to support the adverse credibility determination and, because he did not present corroborating evidence of his persecution, the IJ did not err in denying him relief based on the credibility determination. Id. at 1287-88.
8 examination, consistency with the written application, and the absence of
embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006)
(per curiam).
As regards Fayazi’s procedural due process rights, “[i]t is well settled that
individuals in deportation proceedings are entitled to due process of the law under
the Fifth Amendment.” Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir.
2007). We have held that in order “[t]o prevail on a procedural due process
challenge, the petitioner must show that [she] was substantially prejudiced by the
violation.” Id. In addition, we have also noted that “the deprivation of . . . the
ability to present evidence on one’s behalf in a removal proceeding would, under
certain circumstances, constitute a due process violation.” Id. at 1282.
B. Asylum, Withholding of Removal and CAT Framework
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1); 8 U.S.C. § 1158(a)(1). The Attorney General or
Secretary of the Department of Homeland Security has discretion to grant asylum
if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1); 8 U.S.C.
§ 1158(b)(1). A “refugee” is
any person who is outside any country of such person’s nationality . . ., and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, 9 religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of proving that
he or she qualifies as a “refugee.” 8 C.F.R. § 208.13(a). In order to meet this
burden, “the applicant must, with specific and credible evidence, establish (1) past
persecution on account of a statutorily protected ground or (2) a well-founded fear
of future persecution on account of a protected ground.” Mejia v. U.S. Att’y Gen.,
498 F.3d 1253, 1256 (11th Cir. 2007).
“Persecution” is not defined in the INA, but we have described it as “an
extreme concept, requiring more than a few isolated incidents of verbal harassment
or intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.
2005) (per curiam) (quotations marks and citation omitted). We have also noted
that “mere harassment does not amount to persecution.” Id. (quotation marks,
alteration, and citation omitted). In determining whether an alien has suffered past
persecution, we consider the cumulative impact of the alleged incidents of
persecution. Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861-62 (11th Cir. 2007)
“An applicant who has demonstrated past persecution is presumed to have a
well-founded fear of future persecution.” Mejia, 498 F.3d at 1257. The
presumption can be rebutted by a showing that “[t]here has been a fundamental
10 change in circumstances such that the applicant no longer has a well-founded fear
of persecution” or the “applicant could avoid future persecution by relocating to
another part of the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(1)(i).
To establish a well-founded fear of future persecution, an alien “need only
show that there is a reasonable possibility of suffering such persecution if he or she
were to return to that country.” Mejia, 498 F.3d at 1256 (quotation marks,
alteration, and citation omitted). The alien must establish a fear that is both
“subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.
“The subjective component is generally satisfied by the applicant’s credible
testimony that he or she genuinely fears persecution.” Id. “[T]he objective prong
can be fulfilled either by establishing past persecution or that he or she has a good
reason to fear future persecution.” Id. (quotation marks omitted). An alien must
establish a nexus between a statutorily protected ground and the feared persecution
and can do so by presenting “specific, detailed facts showing a good reason to fear
that he or she will be singled out for persecution on account of” such ground.
Sepulveda, 401 F.3d at 1231 (quotation marks and citation omitted). An alien does
not have to prove he or she would be singled out if he or she can establish a pattern
or practice of persecution of a group of which he or she is a member. 8 C.F.R.
§ 208.13(b)(2)(iii). If the applicant makes an initial showing of a fear of future
persecution, “the government may rebut the applicant’s evidence by 11 demonstrating, based upon a preponderance of the evidence, that the applicant
could avoid future persecution by relocating within the country if, under all the
circumstances, it would be reasonable to expect the applicant to do so.” De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008) (quotation
marks and citation omitted).
To qualify for withholding of removal, an alien must show that it is more
likely than not that if returned to his or her country, the alien’s life or freedom
would be threatened on account of a statutorily protected ground. See INA §
241(b)(3), 8 U.S.C. § 1231(b)(3)(A); Sepulveda, 401 F.3d at 1232. A failure to
meet the lower burden for asylum necessarily amounts to a failure to meet the more
stringent burden for withholding of removal. See Sepulveda, 401 F.3d at 1232-33.
Finally, CAT relief requires that a petitioner show that she “more likely than not”
will be tortured upon return to her country of origin and that such torture will be
“inflicted by or at the instigation of or with the consent or acquiescence of a public
official.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004)
(quotation marks and citation omitted).
C. Findings
In this case, we conclude that the BIA provided specific, cogent reasons for
affirming the IJ’s adverse credibility finding. The BIA highlighted two key
omissions in Fayazi’s testimony before the IJ: 1) being fired from her job because 12 of her religious conversion, and 2) the destruction of her family’s furniture by the
IRG. These omissions contrast sharply with the information that Fayazi provided
in her initial asylum application. Indeed, Fayazi claims to have suffered only two
major incidents of persecution because of her religious convictions and the two
glaring omissions noted by the BIA concern those same two incidents. As we have
said before, where the IJ and the BIA have express concerns about the credibility
of a petitioner “on key elements of the claim” and the petitioner “fail[s] to rebut
these [concerns] with sufficient corroborating evidence and explanation,” we
cannot say that the record compels overturning the credibility determination.
Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1369 (11th Cir. 2005).
We do recognize that Fayazi did advance several explanations for her
omissions in her brief on appeal, including the fact that she was proceeding pro se,
she was nervous, and she had difficulty understanding the interpreter at her
proceeding before the IJ. However, given that none of these grounds were raised
before the BIA, we lack jurisdiction to consider them here. See Amaya-
Artunduaga, 463 F.3d at 1250.
As far as Fayazi’s due process argument goes, we are not convinced that
Fayazi was prejudiced by the IJ’s exclusion of her witness. At her hearing, the IJ
listened to the proffered testimony of Fayazi’s witness and then asked Fayazi if her
witness would add anything “new or different” from Fayazi’s testimony. AR at 13 164-65. Fayazi indicated that her witness would testify about the “present situation
of Iran” – a topic already covered in some detail by Fayazi herself. Id. at 164. The
IJ determined that such testimony would be repetitious and excluded the witness.
Fayazi responded, “That’s fine. Okay.” Id. at 165. We conclude that the IJ did
not err in excluding the witness.
In sum, we find that substantial evidence supports the BIA’s affirmance of
the IJ’s adverse credibility determination. We conclude that the IJ provided
specific, cogent reasons for his decision and, given the highly deferential nature of
our review, we are not compelled to disturb it. Moreover, our review of the record
reveals no other evidence of persecution other than Fayazi’s testimony. As such,
Fayazi has not met her burden of demonstrating that the credibility finding was not
supported by specific, cogent reasons or was not based on substantial evidence.
Because Fayazi did not produce corroborating evidence for the IJ to consider and
the IJ found her testimony to be incredible, substantial evidence also supports the
IJ’s denial of Fayazi’s asylum application. Likewise, “it is axiomatic that where an
applicant fails to meet the burden for asylum, [she] necessarily cannot meet the
more stringent burden for withholding of removal.” Amaya-Artunduaga, 463 F.3d
at 1249 n.3. Finally, because the record contains no evidence in support of
Fayazi’s petition for relief under the CAT, we conclude that the BIA did not err in
affirming the IJ’s denial of such relief. 14 III. CONCLUSION
Fayazi seeks review of the BIA’s decision affirming the IJ’s denial of her
application for asylum and withholding of removal and relief under the CAT. We
conclude that the IJ and the BIA did not err in finding that her testimony was not
credible and that the IJ correctly refused to allow testimony from one of her
witnesses. We also note that Fayazi advances several claims not yet fully
exhausted before the BIA. Accordingly, we DENY the petition in part, and
DISMISS it in part.
DENIED, in part and DISMISSED, in part.