Nana Makharashvili v. U.S. Attorney General , 184 F. App'x 828 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16647 JUNE 7, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A95-907-660
NANA MAKHARASHVILI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 7, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Nana Makharashvili, a native and citizen of Georgia, petitions for review of
the final order of the Board of Immigration Appeals (“BIA”), which affirmed
without opinion the immigration judge’s (“IJ’s”) denial of 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”).1 On appeal, Makharashvili argues
that the IJ erred by denying her asylum application, in which she asserted she was
persecuted by Georgian police on account of her religion (membership in the
“Warriors of God” branch of Protestantism). The IJ denied asylum after making an
adverse credibility finding based on inconsistencies between Makharashvili’s prior
statements, including in her asylum application, and her testimony before the IJ.2
After thorough review of the record and careful consideration of the parties’ briefs,
we affirm.
The IJ’s factual determination that an alien is not entitled to asylum must be
upheld if it is supported by substantial evidence. See Mazariegos v. Att’y Gen.,
241 F.3d 1320, 1323 (11th Cir. 2001). Under this highly deferential standard of
review, a denial of asylum may be reversed only if the evidence would compel a
reasonable factfinder to find that the requisite fear of persecution exists. See INS v.
1
We have jurisdiction over a “final order of removal,” so long as the petition for review is
filed within 30 days. See INA § 242(a)(1), (b)(1), 8 U.S.C. § 1252(a)(1), (b)(1). The BIA’s
November 3, 2005 order, affirming the IJ’s decision, was a final order of removal. Makharashvili
timely filed her petition for review on December 5, 2005. Accordingly, we have jurisdiction to
review the BIA’s order.
2
Because we find that Makharashvili has not established a case for asylum under the INA,
we do not address her arguments that she also satisfied the higher standards for withholding of
removal or CAT relief. See Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001).
2
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see also 8 U.S.C. § 1252(b)(4)(B)
(“administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary”). A finding of fact will be
reversed “only when the record compels reversal; the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal . . . .” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert. denied, 544 U.S.
1035 (2005).
Like other factual findings, credibility determinations are reviewed under the
substantial evidence test, meaning that the IJ must offer specific, cogent reasons for
an adverse credibility finding. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-
1287 (11th Cir. 2005). And “an adverse credibility determination alone may be
sufficient to support the denial of an asylum application” when there is no other
evidence of persecution. Id. at 1287 (emphasis added); D-Muhumed v. U.S. Att’y
Gen., 388 F.3d 814, 819 (11th Cir. 2004) (same). “Once an adverse credibility
finding is made, the burden is on the applicant alien to show that the IJ’s credibility
decision was not supported by ‘specific, cogent reasons’ or was not based on
substantial evidence.” Forgue, 401 F.3d at 1287 (citations omitted). “Indications
of reliable testimony include consistency on direct examination, consistency with
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the written application, and the absence of embellishments.” Ruiz v. U.S. Att’y.
Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is
unwilling to return to his home country or to avail himself of that country’s
protection “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A).
The asylum applicant carries the burden of proving statutory “refugee”
status. See Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001); 8 C.F.R. §
208.13(a). The applicant satisfies this burden by showing, with specific and
credible evidence: (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that his or her statutorily listed factor will cause future
persecution. 8 C.F.R. § 208.13(a), (b); Najjar, 257 F.3d at 1287. The applicant’s
testimony, if credible, may be sufficient to sustain her burden of proof without
corroborating evidence. See 8 C.F.R. § 208.13. “[T]he weaker the applicant’s
testimony, the greater the need for corroborative evidence.” Yang v. U.S. Att’y
4
Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). An adverse credibility determination
alone may be sufficient to support an IJ’s decision to deny an application for
asylum. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).
“[P]ersecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 378
F.3d 1260, 1264 (11th Cir. 2004) (citation and internal quotation marks omitted).
Put another way, “‘[m]ere harassment does not amount to persecution.’” Id.(alteration in original) (quoting Gonzalez v. Reno, 212 F. 3d 1338, 1355 (11th Cir.
2000)). An asylum applicant may not show merely that she practices a particular
faith, but must show that she was persecuted because of that faith. See Elias-
Zacarias, 502 U.S. at 483 (1992).
Here, substantial evidence supported the IJ’s adverse credibility findings and
decision, based on those findings, that Makharashvili was not entitled to asylum.
The IJ cited numerous inconsistencies and unbelievable testimony to support his
adverse credibility finding, including: (1) inconsistencies between Makharashvili’s
asylum application and testimony concerning when she met her friend Maria, who
introduced her to the Warriors of God, the group upon which her asylum
application was based; (2) inconsistencies between Makharashvili’s statements in
her medical records, in which she did not attribute her depression to being raped by
5
Georgian police officers, and her prior statements, including her asylum
application, and testimony in which she detailed being raped by Georgian police
officers; and (3) her testimony that she traveled to the United States to seek asylum
was inconsistent with her one-year delay in applying for asylum. 3 Under the
substantial evidence test, substantial evidence supports the IJ’s adverse credibility
finding.
The IJ considered the adverse credibility determination to be dispositive of
Makharashvili’s application, since she presented no other evidence of her
persecution. Cf. Forgue, 401 F.3d at 1287 (holding that “an adverse credibility
determination alone may be sufficient to support the denial of an asylum
application” when there is no other evidence of persecution). On this record, based
on the inconsistencies we have noted above, we cannot say that the record compels
reversal of the IJ’s adverse credibility determination. Accordingly, we deny the
petition for review.
PETITION DENIED.
3
Because we find these inconsistencies sufficient to support the IJ’s adverse credibility
finding (and, consequently, the denial of asylum), we need not and do not reach the other
inconsistencies noted by the IJ.
6