Alexey Seryy v. U.S. Attorney General , 160 F. App'x 962 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 30, 2005
No. 04-13867
THOMAS K. KAHN
________________________ CLERK
Agency No. A71-603-625
ALEXEY SERYY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 30, 2005)
Before EDMONDSON, Chief Judge, BARKETT, Circuit Judge, and HUNT *,
District Judge.
PER CURIAM:
*
Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
Alexey Seryy, through counsel, petitions this Court for review of the Board
of Immigration Appeal’s (“BIA”) final order 1 affirming without opinion the
Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of
removal, and protection under the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1101 et. seq., and the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), Dec. 10,
1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027.2 We review the IJ’s decision in this case,
not the BIA’s, because the BIA affirmed the IJ’s decision without opinion, thereby
making the IJ’s decision the final agency determination. See Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003).
We review the IJ’s factual determinations, including credibility
determinations, in an asylum claim under the substantial evidence test, and we
must affirm the IJ’s decision if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole unless the evidence
1
Although neither the IJ nor the BIA expressly issued a final order of removal, but merely
denied Seryy’s claims for relief, we have jurisdiction in this case under 8 U.S.C. § 1252(a)(1) and
8 U.S.C. § 1252(a)(2)(B)(ii). See Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir. 2003) (“This court
generally has jurisdiction to review the denial of any asylum request.” (citing § 1252(a)(2)(B)(ii)));
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir. 2003) (same); see also Abdulrahman v.
Ashcroft, 330 F.3d 587, 591 (3rd Cir. 2003) (“[A] decision by the Board that an applicant is
ineligible for asylum constitutes a ‘final order of removal’ that may be subject to judicial review
under § 1252(a)(1).”).
2
Seryy does not challenge the IJ’s denial of CAT relief, and thus abandons the issue. We
therefore will not address the claim. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.3
(11th Cir. 2003).
2
compels a reasonable fact-finder to find otherwise. INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992). An alien seeking withholding of removal must show that if
removed, his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. See 8
U.S.C. § 1231(b)(3)(A). As in asylum claims, the IJ's findings of fact are
conclusive unless the record demonstrates that "any reasonable adjudicator would
be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
In this case, we cannot conclude that the evidence would compel a
reasonable fact-finder to contradict the findings of the IJ resulting in the denial of
Seryy’s asylum and withholding of removal claims. Seryy concedes that he
provided conflicting testimony full of deliberate fabrications. He essentially
argues that the IJ was required to believe his explanation that he lied because he
feared that the smugglers who brought him into this country would harm his
family. The IJ found Seryy’s testimony “unworthy of belief” and that he failed to
establish that he harbored a credible fear of persecution if returned to Russia. The
record does not compel reversal of the IJ's determinations.
PETITION DENIED.
3