Ibrat Ilhamovich Djabbarov v. U.S. Attorney General , 597 F. App'x 592 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11983
Non-Argument Calendar
________________________
Agency No. A088-399-203
IBRAT ILHAMOVICH DJABBAROV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 22, 2015)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
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Ibrat Ilhamovich Djabbarov, a native and citizen of Uzbekistan, seeks
review of the Board of Immigration Appeals’s (“BIA”) final order affirming the
Immigration Judge’s (“IJ”) denial of his claims for asylum and withholding of
removal, and relief under the United Nations Convention Against Torture
(“CAT”). After review, we deny Djabbarov’s petition for review. 1
I. BACKGROUND
In March 2007, while in the United States on a visitor’s visa, Djabbarov
filed an asylum application, claiming the Uzbekistani government had persecuted
him because it believed Djabbarov was affiliated with Hizb-ut Tahrir, a radical
political group that advocates for an Islamic government in Uzbekistan. Djabbarov
claimed that between October 2004 and January 2006, government officials
arrested and interrogated him three times, that he had to pay bribes to secure his
release, and that, during his first arrest, he was beaten until he was unconscious.
Djabbarov also claimed that his father was shot and killed when he and Djabbarov
attended a political street protest in May 2005, and the Uzbekistani military fired
on the protestors.
In May 2008, the Department of Homeland Security issued a Notice to
Appear (“NTA”) charging Djabbarov with removability because his visitor visa
1
Djabbarov failed to raise any argument concerning the denial of his future persecution
claim (independent of his past persecution claim) or the denial of CAT relief, and thus he
abandoned these claims. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005).
2
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had expired. Djabbarov admitted the NTA’s allegations and conceded that he is
removable.
After a hearing, the IJ discredited Djabbarov based on numerous
inconsistencies between Djabbarov’s hearing testimony and other record evidence
and denied all requested relief. The BIA affirmed the IJ’s adverse credibility
finding and dismissed Djabbarov’s appeal. In seeking review before this Court,
Djabbarov argues that the IJ’s credibility finding is not supported by specific,
cogent reasons or substantial evidence.2
II. DISCUSSION
An asylum applicant must show, with specific and credible evidence, either
past persecution or a well-founded fear of future persecution on account of a
protected ground. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir.
2005); 8 C.F.R. § 208.13(b).3 While credible testimony may be sufficient to
sustain an asylum applicant’s burden of proof without corroboration, Immigration
and Nationality Act (“INA”) § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii), the
weaker an applicant’s testimony, the greater the need for corroboration. Yang v.
2
Because the BIA agreed with the IJ’s credibility finding, we review the decisions of both
the IJ and the BIA. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008). The
IJ’s credibility determination is a factual finding, which we review for substantial evidence. Id.Under the substantial evidence test, we will reverse the IJ’s credibility determination only if the
record compels it. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir. 2005).
3
Similarly, an applicant for withholding of removal must show that it was more likely
than not that she will be persecuted on a protected ground. Mendoza v. U.S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003); 8 C.F.R. § 208.16(b).
3
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U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Conversely, an IJ’s
adverse credibility determination, alone, may support the denial of an asylum
claim, but if the applicant produces evidence other than his testimony, the IJ and
the BIA must consider this evidence as well. Forgue, 401 F.3d at 1287.
Pursuant to the REAL ID Act, the IJ, in evaluating credibility, must consider
the “totality of the circumstances,” including: (1) the applicant’s demeanor, candor,
or responsiveness; (2) the inherent 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 statements with other
record evidence; and (6) any other relevant factor. INA § 208(b)(1)(B)(iii); 8
U.S.C. § 1158(b)(1)(B)(iii); see also Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233
(11th Cir. 2006). 4 Furthermore, any inaccuracy, inconsistency, or falsehood may
be used to support an adverse credibility determination, regardless of whether it
goes to the heart of the applicant’s claim. INA § 208(b)(1)(B)(iii), 8 U.S.C.
§ 1158(b)(1)(B)(iii). In making an adverse credibility finding, the IJ must be
explicit and offer “specific, cogent reasons” for the finding. Forgue, 401 F.3d at
1287. “Once an adverse credibility finding is made, the burden is on the applicant
4
The IJ’s credibility findings for purposes of determining eligibility for withholding of
removal are also governed by 8 U.S.C. § 1158(b)(1)(B), as amended by the REAL ID Act. INA
§ 241(b)(3)(C), 8 U.S.C. § 1231(b)(3)(C).
4
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alien to show that the IJ’s credibility decision was not supported by ‘specific,
cogent reasons’ or was not based on substantial evidence.” Id.Here, contrary to Djabbarov’s contentions, the IJ offered specific, cogent
reasons for his adverse credibility finding. In particular, the IJ noted discrepancies
between Djabbarov’s testimony and the evidence of record concerning: (1)
Djabbarov’s birthplace; (2) his 2004 arrest; (3) the details of how he secured a
visa; (4) the financing of his mother’s new apartment after fleeing to Tashkent; and
(5) the government’s closing of his family’s business.
Further, the IJ’s credibility finding is supported by substantial evidence. For
example, while Djabbarov insists he was born in Andijan, his passport and visa
paperwork list his place of birth as Tashkent. There are also multiple
inconsistencies concerning Djabbarov’s October 2004 arrest. Although Djabbarov
attributed his injuries to the actions of the Uzbekistani authorities, the hospital
report he submitted as corroboration states that he sustained his injuries after being
beaten in the street by unidentified individuals in October 2005. In addition,
Djabbarov initially stated that his handcuffs were removed before the beating
began, but later testified that officials placed him in handcuffs just prior to the
beating. And, Djabbarov’s initial statement suggests he was detained for a single
day, while he subsequently testified that the detention lasted two days.
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There are also discrepancies regarding where and for how long his mother
resided in Tashkent after Djabbarov’s arrests. Initially, Djabbarov indicated that
his mother refused to leave Andijan because she was waiting for her husband to
return. Later, however, Djabbarov testified that his mother accompanied him to
Tashkent following his 2006 arrest. Djabbarov also testified that his mother could
afford her new apartment in Tashkent because he sent her money, but a friend,
Murod Rasulov, claimed that he purchased the apartment for her.
Djabbarov was also inconsistent in recounting his father’s death. Initially,
Djabbarov stated that, when his father fell to the ground, Djabbarov did not know
his father had been shot until he turned him over. Djabbarov could not lift his
father and had to flee. The next day, Djabbarov and his mother searched for his
father among the wounded at hospitals, but did not find him. At the hearing,
however, Djabbarov testified that he knew immediately that his father was dead
upon seeing him on the ground, and searched for his father’s body the next day.
But, the details changed again on cross-examination when Djabbarov said that,
when his father was shot, he did not know in that moment whether his father was
dead.
Given the numerous inconsistencies between Djabbarov’s testimony and the
other record evidence, the record does not compel a conclusion that Djabbarov
testified credibly. Although Djabbarov argues that he provided plausible
6
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explanations for several identified inconsistencies, the IJ did not accept them. In
any event, a tenable explanation does not compel us to overturn the IJ’s credibility
determination. See Chen, 463 F.3d at 1233 (explaining that a petitioner’s
explanations, although tenable, did not compel reversal of the IJ’s credibility
finding); see also Lyashchynska v. U.S. Att’y Gen., 676 F.3d 962, 967 (11th Cir.
2012) (“Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” (quotation marks omitted)).
Djabbarov’s argument that the IJ placed disproportionate weight on the
discrepancies surrounding his place of birth lacks merit. First, the IJ relied upon a
number of inconsistencies, only one of which was about his birthplace. Second, as
the REAL ID Act clarified, any inconsistency may be used to support an adverse
credibility determination, regardless of whether it goes to the heart of the asylum
applicant’s claim or involves a minor detail. Finally, the IJ did not rely solely on
the identified inconsistencies, but rather also noted that most of Djabbarov’s
corroborating evidence—mainly sworn statements from friends and relatives in
Uzbekistan—was either lacking in detail or completely devoid of any mention of
the harm Djabbarov claimed to have suffered.
The reasons given for discrediting Djabbarov are supported by substantial
evidence, and Djabbarov does not contend that the other evidence in the record,
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absent his discredited testimony, compels a conclusion that he was persecuted. 5
Because Djabbarov did not establish eligibility for asylum, his claim for
withholding of removal also fails. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-
93 (11th Cir. 2001).
PETITION DENIED.
5
Because the IJ’s adverse credibility determination is supported by substantial evidence,
we do not address the IJ’s alternate finding that, even if Djabbarov’s testimony is taken as true,
he failed to establish past persecution or a well-founded fear of future persecution.
8