The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14940
Non-Argument Calendar
________________________
Agency No. A208-445-965
PRATHMESHKUMAR PATEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 2, 2019)
Before ED CARNES, Chief Judge, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
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Prathmeshkumar Patel seeks review of the Board of Immigration Appeals’
final order affirming the denial of his application for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment.
I.
Patel is a citizen of India who entered the United States without inspection in
August 2015. He applied for asylum, withholding of removal, and CAT relief
based on political opinion, claiming that while involved with the Congress Party in
India he was repeatedly threatened and attacked by members of the rival Bharatiya
Janata Party (BJP). He attached corroborating evidence to his application that
included a letter from the Congress Party saying that he had been an active party
worker since 2011, the Wikipedia page for the BJP, several articles describing the
differences between the BJP and the Congress Party, and two reports on human
rights in India. One of those reports described incidents of vigilante groups
associated with the BJP attacking religious minorities, but not members of the
Congress Party.
Patel testified at his merits hearing about two attacks that he allegedly
suffered at the hands of BJP members, and the Immigration Judge questioned him
about inconsistencies between his testimony and descriptions of the attacks in his
asylum application. The IJ also raised concerns when Patel testified that his son
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had an encounter in a park with BJP members who said they would make his son
an orphan, after which his son asked him what “orphan” meant. The IJ found that
story unbelievable because Patel’s son would have been only 11 months old at the
time. Patel’s counsel asked for more time to obtain additional corroborating
evidence in light of these inconsistencies, but the IJ denied the request.
The IJ then issued an oral decision denying Patel’s application. The IJ found
that Patel’s testimony differed from his written statement and credible fear
interview and that he did not provide any convincing corroborating evidence. The
IJ made an adverse credibility determination based on three specific
inconsistencies: (1) in his statement Patel said that after the first alleged attack in
September 2013 his wife treated his nose with ice, but in his testimony Patel
claimed that he was treated by his family physician afterwards; (2) Patel testified
that his son asked him what “orphan” meant, even though his son would have been
11 months old at that time; and (3) during his testimony Patel testified that he was
threatened by the police after the local president of the Congress Party
accompanied him to the police station to report the second attack in September
2013, but Patel made no mention of reporting the attack or being threatened by the
police in his written statement.
Alternatively the IJ determined that even if Patel were credible, his
application would still fail because he did not provide sufficient corroborating
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evidence. The IJ noted in particular that neither Patel’s family members nor any
member of the Congress Party provided any statements corroborating Patel’s story.
The IJ noted further that the corroborating evidence Patel did provide was
“suspect.” In light of the adverse credibility finding and lack of corroborating
evidence, the IJ concluded that Patel could not establish past persecution or a well-
founded fear of future persecution to establish asylum eligibility and also could not
meet the higher burden of establishing eligibility for withholding of removal or
relief under CAT.
Patel appealed to the BIA. He contended that the IJ’s adverse credibility
finding was erroneous because it was based on only minor inconsistencies, that he
established asylum eligibility through a well-founded fear of future persecution
based on his political opinion, and that the IJ failed to make a factual finding or
provide legal analysis as to why he was not qualified for withholding of removal.
The BIA affirmed the IJ’s decision. It found that the IJ did not clearly err in
making an adverse credibility determination, noting that such a determination can
be supported by any inconsistency. The BIA also found that the IJ gave Patel the
opportunity to address the inconsistencies during his merits hearing, and noted that
Patel’s appeal did not address the IJ’s finding regarding the lack of corroborating
evidence. The BIA affirmed the IJ’s denial of CAT relief because it found that
there was no clear error in the adverse credibility determination that the denial was
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based upon, and it affirmed the denial of withholding of removal because Patel
failed to meet his lower burden of proving asylum eligibility. This is Patel’s
appeal.
II.
Patel contends that the BIA did not have credible evidence to support the
adverse credibility finding it relied on to deny Patel asylum, withholding of
removal, and relief under CAT.
To establish asylum eligibility based on political opinion an applicant “must,
with credible evidence, establish (1) past persecution on account of her political
opinion . . . or (2) a ‘well-founded fear’ that her political opinion . . . will cause
future persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230–31 (11th
Cir. 2005) (quoting 8 C.F.R. § 208.13(a), (b)). In the absence of other evidence of
persecution “an adverse credibility determination is alone sufficient to support the
denial of an asylum application.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287
(11th Cir. 2005). Because an applicant faces an even higher burden in establishing
eligibility for withholding of removal or protection under the Convention Against
Torture, when an applicant “has failed to establish a claim of asylum on the merits,
he necessarily fails to establish eligibility for” those forms of relief. Id. at 1288
n.4.
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Because the BIA did not expressly adopt the IJ’s decision, we review only
the decision of the BIA. See Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). We review credibility determinations under the substantial-evidence test.
Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th Cir. 2006). Under that
standard we will reverse the BIA’s credibility findings “only if the evidence
compels a reasonable fact finder to find otherwise.” Id. at 1231 (quotation marks
omitted).
The BIA must support an adverse credibility determination with “specific,
cogent reasons” for that determination. Kueviakoe v. U.S. Att’y Gen., 567 F.3d
1301, 1305 (11th Cir. 2009). “The burden then shifts to the alien to show that the
credibility decision was not supported by ‘specific, cogent reasons’ or was not
based on substantial evidence.” Id. In making a credibility finding, the BIA may
base its considerations on inconsistencies between a respondent’s testimony and
other documents in the record. See 8 U.S.C. § 1229a(c)(4)(C). The BIA may rely
on any relevant credibility consideration without regard for whether such factors
go to the heart of the claim. See Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049
n.7 (11th Cir. 2009).
Here the BIA’s adverse credibility determination was supported by
substantial evidence. Patel does not dispute that there were inconsistencies in his
testimony, but argues only that these inconsistencies were too “minor and isolated”
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to support an adverse credibility determination. That contention does not stand up
to scrutiny. The BIA provided detailed descriptions of why three different portions
of Patel’s testimony raised credibility concerns, providing an abundance of
“specific, cogent reasons” supporting its credibility determination. Kueviakoe, 567
F.3d at 1305. Specifically the BIA found that there were inconsistencies about
whether Patel sought out medical treatment following the first attack and whether
he reported the second attack to the police and was threatened in the process. It
also found implausible Patel’s testimony that his 11-month-old son asked him the
meaning of the word “orphan” after BJP members threatened the child in a park.
These inconsistencies involve major details that call into question the severity of
the alleged attacks and whether the police were controlled by the BJP. The BIA
was permitted to rely on these considerations in making a credibility determination
regardless of whether they go to the heart of Patel’s claims. See Shkambi, 584
F.3d at 1049 n.7. So we cannot find that the evidence compels a reasonable fact
finder to find Patel credible. Chen, 463 F.3d at 1231.
Because Patel’s contention that his adverse credibility determination was not
supported by substantial evidence fails his remaining claims must also fail. Patel
contends that the BIA erred in finding that he did not have a credible fear of future
persecution, arguing that his testimony shows that he was targeted for attacks in India
based on his political opinion. But the testimony that Patel relies on was not credible
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and he did not present convincing corroborating evidence to substantiate his fear of
future persecution, so he has not shown that he is eligible for asylum. See Forgue,
401 F.3d 1287.
Patel also contends that the BIA erred in failing to provide any discussion of
why he is ineligible for withholding of removal “other than stating he had not met
his burden of showing he was eligible for asylum.” But it is clear from the record
that Patel is ineligible for withholding of removal for the same reason that the BIA
found him ineligible for asylum and CAT relief: given the adverse credibility finding
he has not presented any credible evidence that he will be persecuted at all if he
returns to India. So he has failed to show the “clear probability of persecution”
necessary for withholding of removal, and also cannot demonstrate that he is eligible
for CAT relief due to a likelihood that he will be tortured with the acquiescence of
the Indian government. See Rodriguez Morales v. U.S. Atty. Gen., 488 F.3d 884,
891 (11th Cir. 2007).
PETITION DENIED.
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