[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-13998 JULY 27, 2011 JOHN LEY Non-Argument Calendar CLERK ________________________
Agency No. A088-685-712
SITA DEVI THAPA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(July 27, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM: Sita Devi Thapa, a citizen of Nepal, came to the United States on a tourist
visa and within a year of her arrival had applied for asylum and withholding of
removal based on her alleged persecution by Nepalese Maoist guerrillas. Thapa
was denied relief and now petitions for review of the Board of Immigration
Appeals’ (BIA’s) decision denying her application for asylum and petition for
withholding of removal under the Immigration and Nationality Act (INA).
On appeal Thapa argues that the BIA erred in affirming the Immigration
Judge’s (IJ’s) adverse-credibility determination, which was the basis for denying
her relief. Thapa also argues that the IJ’s conduct at the hearing denied her due
process.1 We deny Thapa’s petition in part as well as to her due process argument
and as to her argument that the BIA’s adverse-credibility finding was not
supported by substantial evidence. But because we conclude that the BIA failed to
consider corroborating evidence and denied relief based solely on its adverse-
credibility determination, we also grant Thapa’s petition in part and remand.
I.
1 Thapa also argues that the IJ’s determination that she was not entitled to asylum or withholding of removal because she had failed to establish past persecution was not supported by substantial evidence. But the BIA did not address the IJ’s past-persecution finding in its order, nor did it adopt the IJ’s finding. Consequently we do not consider Thapa’s argument on this point. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008).
2 Where the BIA issues its own opinion, as is the case here, we review only
that opinion. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir.
2008). In the event that the BIA expressly adopts the IJ’s decision, we will also
review the IJ’s decision to that extent. Id. We review any legal conclusions made
by the BIA de novo, but we may not reject its factual findings unless they are so
unsupported by evidence that the record compels it. Kazemzadeh v. U.S. Att’y
Gen., 577 F.3d 1341, 1350–51 (11th Cir. 2009). We review constitutional
challenges de novo. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir.
2010).
II.
We first address Thapa’s due-process challenge. In the context of removal
proceedings, due process is satisfied when an alien is given notice and a right to be
heard before her removal. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir.
2009). We have also said that an alien’s removal hearing must be full and fair.
Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987).
Thapa argues that the IJ conducted her removal hearing in an unnecessarily
antagonistic and insensitive manner. As a result, Thapa contends, her removal
hearing was turned into a game of “gotcha,” and the IJ’s credibility determination
is itself not credible.
3 An IJ may “interrogate, examine, and cross-examine the alien and any
witnesses.” 8 U.S.C. §1229a(b)(1). Most of the questions and comments that
Thapa complains about were instances where the IJ was attempting to get Thapa to
focus her answer or respond to a question. We have approved similar efforts in
judicial context, and we can discern no reason why due process would require that
we disapprove of them here. See Moore v. United States, 598 F.2d 439, 442 (5th
Cir. 1979).2
Thapa also argues that the IJ was sarcastic when he asked her whether her
parents “had been killed yet.” Although in any case the IJ might have phrased the
question somewhat more delicately, in the context of the proceeding it is not clear
that he was being sarcastic. Indeed, Thapa’s testimony leading up to the IJ’s
question was about death threats that had been made to her parents. Accordingly,
we find no due-process violation.
III.
The INA allows the Attorney General to grant asylum to any refugee, that is,
someone who is unable or unwilling to return to his home country “because of
persecution or a well-founded fear of persecution on account of race, religion,
2 Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (“[T]he decisions of the United States Court of Appeals for the [former] Fifth Circuit . . . shall be binding as precedent in the Eleventh Circuit . . . .”).
4 nationality, membership in a particular social group, or political opinion.”
8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). Similarly, to qualify for withholding of
removal, an alien must establish that upon return to her home country it is more
likely than not that her life or freedom would be threatened because of her race,
religion, nationality, membership in a particular social group, or political opinion.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). If an alien
cannot meet the standard for asylum, she is usually unable to meet the “more
stringent” standard for withholding of removal. Id. at 1232–33. An alien’s own
testimony, if credible, may be by itself enough to establish past persecution.
Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1217 (11th Cir. 2007). It is, however,
up to the trier of fact to determine whether an alien is credible. 8 U.S.C. § 1158.
And indeed in some cases, like here, the alien may be found to be incredible.
To overturn an adverse-credibility finding, a petitioner must show that the
BIA’s finding “was not supported by ‘specific, cogent reasons’ or was not based
on substantial evidence.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th
Cir. 2005). 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.” Id. at 1286.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-13998 JULY 27, 2011 JOHN LEY Non-Argument Calendar CLERK ________________________
Agency No. A088-685-712
SITA DEVI THAPA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(July 27, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM: Sita Devi Thapa, a citizen of Nepal, came to the United States on a tourist
visa and within a year of her arrival had applied for asylum and withholding of
removal based on her alleged persecution by Nepalese Maoist guerrillas. Thapa
was denied relief and now petitions for review of the Board of Immigration
Appeals’ (BIA’s) decision denying her application for asylum and petition for
withholding of removal under the Immigration and Nationality Act (INA).
On appeal Thapa argues that the BIA erred in affirming the Immigration
Judge’s (IJ’s) adverse-credibility determination, which was the basis for denying
her relief. Thapa also argues that the IJ’s conduct at the hearing denied her due
process.1 We deny Thapa’s petition in part as well as to her due process argument
and as to her argument that the BIA’s adverse-credibility finding was not
supported by substantial evidence. But because we conclude that the BIA failed to
consider corroborating evidence and denied relief based solely on its adverse-
credibility determination, we also grant Thapa’s petition in part and remand.
I.
1 Thapa also argues that the IJ’s determination that she was not entitled to asylum or withholding of removal because she had failed to establish past persecution was not supported by substantial evidence. But the BIA did not address the IJ’s past-persecution finding in its order, nor did it adopt the IJ’s finding. Consequently we do not consider Thapa’s argument on this point. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008).
2 Where the BIA issues its own opinion, as is the case here, we review only
that opinion. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir.
2008). In the event that the BIA expressly adopts the IJ’s decision, we will also
review the IJ’s decision to that extent. Id. We review any legal conclusions made
by the BIA de novo, but we may not reject its factual findings unless they are so
unsupported by evidence that the record compels it. Kazemzadeh v. U.S. Att’y
Gen., 577 F.3d 1341, 1350–51 (11th Cir. 2009). We review constitutional
challenges de novo. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir.
2010).
II.
We first address Thapa’s due-process challenge. In the context of removal
proceedings, due process is satisfied when an alien is given notice and a right to be
heard before her removal. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir.
2009). We have also said that an alien’s removal hearing must be full and fair.
Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987).
Thapa argues that the IJ conducted her removal hearing in an unnecessarily
antagonistic and insensitive manner. As a result, Thapa contends, her removal
hearing was turned into a game of “gotcha,” and the IJ’s credibility determination
is itself not credible.
3 An IJ may “interrogate, examine, and cross-examine the alien and any
witnesses.” 8 U.S.C. §1229a(b)(1). Most of the questions and comments that
Thapa complains about were instances where the IJ was attempting to get Thapa to
focus her answer or respond to a question. We have approved similar efforts in
judicial context, and we can discern no reason why due process would require that
we disapprove of them here. See Moore v. United States, 598 F.2d 439, 442 (5th
Cir. 1979).2
Thapa also argues that the IJ was sarcastic when he asked her whether her
parents “had been killed yet.” Although in any case the IJ might have phrased the
question somewhat more delicately, in the context of the proceeding it is not clear
that he was being sarcastic. Indeed, Thapa’s testimony leading up to the IJ’s
question was about death threats that had been made to her parents. Accordingly,
we find no due-process violation.
III.
The INA allows the Attorney General to grant asylum to any refugee, that is,
someone who is unable or unwilling to return to his home country “because of
persecution or a well-founded fear of persecution on account of race, religion,
2 Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (“[T]he decisions of the United States Court of Appeals for the [former] Fifth Circuit . . . shall be binding as precedent in the Eleventh Circuit . . . .”).
4 nationality, membership in a particular social group, or political opinion.”
8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). Similarly, to qualify for withholding of
removal, an alien must establish that upon return to her home country it is more
likely than not that her life or freedom would be threatened because of her race,
religion, nationality, membership in a particular social group, or political opinion.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). If an alien
cannot meet the standard for asylum, she is usually unable to meet the “more
stringent” standard for withholding of removal. Id. at 1232–33. An alien’s own
testimony, if credible, may be by itself enough to establish past persecution.
Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1217 (11th Cir. 2007). It is, however,
up to the trier of fact to determine whether an alien is credible. 8 U.S.C. § 1158.
And indeed in some cases, like here, the alien may be found to be incredible.
To overturn an adverse-credibility finding, a petitioner must show that the
BIA’s finding “was not supported by ‘specific, cogent reasons’ or was not based
on substantial evidence.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th
Cir. 2005). 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.” Id. at 1286. And, like any other factual finding, a credibility
determination “may not be overturned unless the record compels it.” Id. at 1287.
5 Here the BIA gave specific and cogent reasons for its adverse-credibility
determination by identifying discrepancies between Thapa’s testimony before the
IJ, her application, and her interview with the asylum officer.3 And those
discrepancies are more than sufficient evidence to support the BIA’s finding.
Even though Thapa’s post-traumatic stress disorder could provide a reasonable,
and even plausible, explanation for the discrepancies, it does not compel us to
overturn the BIA’s finding.
But although we affirm the BIA’s adverse credibility finding, we conclude
that it was not by itself a sufficient basis to deny relief. In the absence of
corroborating evidence, an adverse-credibility finding can be sufficient to deny
relief to an alien, Mohammed, 547 F.3d at 1345, but when an applicant produces
3 The REAL ID Act, which applies to Thapa’s claims, provides that:
Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, 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). An alien’s later testimony about facts not included in her asylum application can be considered an inconsistency in her statements. See Mohammed, 547 F.3d at 1345–46; Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255–56 (11th Cir. 2006).
6 corroborating evidence, the BIA must consider it too in deciding whether to grant
relief. Forgue, 401 F.3d at1287.
Here the BIA denied relief based solely on its adverse-credibility finding.
Had Thapa not provided any corroborating evidence that would have been
sufficient to deny relief. But she did, so it wasn’t. Accordingly, we grant her
petition in part, vacate the BIA’s opinion in part, and remand to the BIA so that it
may consider whether she was entitled to relief in light of her corroborating
evidence despite the BIA’s adverse-credibility determination.
DENIED in part, GRANTED in part, REMANDED.