Nodirbek Nigmatovich Yusupov v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 3, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13560
Non-Argument Calendar
________________________
Agency No. A098-378-145
NODIRBEK NIGMATOVICH YUSUPOV,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 3, 2012)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

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PER CURIAM:
Nodirbek Yusupov, a citizen of Uzbekistan, petitions for review of the
Board of Immigration Appeals’s (“BIA”) affirmance of the Immigration Judge’s
(“IJ”) denial of his application for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture (“CAT”). The IJ found
numerous inconsistencies between Yusupov’s testimony and his application, and
the IJ denied Yusupov’s application for asylum, withholding of removal, and CAT
relief, but did not make an express credibility finding. The BIA remanded the IJ’s
decision with the instruction that an express adverse credibility determination be
made. In a second decision, the IJ found that Yusupov was not credible and
denied his application. The BIA, in a separate opinion, concurred with the IJ after
identifying several contradictions that supported the adverse credibility finding. It
also determined that Yusupov’s documentary evidence was insufficient to
overcome his incredible testimony.
Yusupov argues that substantial evidence did not support the BIA’s adverse
credibility determination because any inconsistencies were clarified in his
testimony and were unsubstantiated by the record. Yusupov also argues that the
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BIA erred by not assigning his second appeal to a three-member panel.1
I.
We review the BIA’s credibility findings under the “highly deferential”
substantial evidence test, which requires that we uphold the BIA’s decision if it is
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th
Cir. 2005).
We review the BIA’s decision, except to the extent that the BIA expressly
adopts the IJ’s opinion or relies upon her reasoning. Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, the BIA wrote a separate opinion that
concurred with the IJ’s opinion but did not directly rely upon it. Thus, we review
only the BIA’s decision.
An applicant for asylum must establish either: (1) past persecution on
account of a protected ground, or (2) a well-founded fear of future persecution on
account of a protected ground. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1230-31 (11th Cir. 2005). “If the IJ finds an asylum applicant not credible, the IJ
Yusupov also argues that the record presented to the BIA was not properly1
translated, which precluded meaningful review. However, Yusupov did not to present his
translation claim to the BIA, thereby failing to exhaust his administrative remedies. Accordingly,
we lack jurisdiction to consider this claim. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1250 (11th Cir. 2006) (holding that we lack jurisdiction to consider claims not raised
before the BIA).
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must make an explicit adverse credibility finding and offer ‘specific, cogent
reasons’ for the finding.” Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049 (11th
Cir. 2009). “Indications of reliable testimony include consistency on direct
examination, consistency with the written application, and the absence of
embellishments.” Id. An adverse credibility determination also may be based on
inconsistencies between hearing testimony and statements made at prior
interviews, including credible-fear interviews with an asylum officer. See id.
Once the IJ makes an adverse credibility finding, the alien bears the burden
to show that the finding was not supported by the reasons provided or was not
based on substantial evidence. Id. An alien who cannot meet the standard for
asylum cannot satisfy the higher standards for withholding of removal under the
INA or for CAT relief. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir.
2006).
There is substantial evidence to support the BIA’s decision. Yusupov was
unable to provide consistent testimony about whether the books in his house had
been planted by the government. This went to the heart of whether he had been
arrested merely for his Muslim faith—or because of his suspected involvement in
Hizb ut-Tahrir.
Yusupov waited nine days to go to the hospital after his release from prison,
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which supports a finding that he did not suffer severe injuries during
imprisonment. He testified to the IJ that officials directed him to attend mosque as
part of his activities as an informant, yet his application for asylum stated that he
was told not to go to mosque. His testimony and application also conflicted with
respect to the details of his brothers’ arrests and whether they had been released.
Yusupov was unable to provide any documentary evidence of his
hospitalization, his time as a muezzin, or his brothers’ arrests.
Because substantial evidence supports the BIA’s conclusion that Yusupov is
ineligible for asylum on the basis of the adverse credibility determination and the
insufficiency of his corroborating evidence, Yusupov also cannot satisfy the
heightened burdens for withholding of removal under the INA or for CAT relief.
Zheng, 451 F.3d at 1292.2
II.
Yusupov also contends that the BIA erred by not assigning his second
appeal to a three-member panel. “A single Board member assigned under the case
management system shall determine the appeal on the merits . . . , unless the Board
We also reject Yusupov’s argument that the IJ erred by initially relying on pre-2
REAL-ID-Act standards. The IJ’s written report clearly indicates that she realized that the REAL
ID Act did not apply to Yusupov’s case, and, in any event, Yusupov has failed to explain how he
was prejudiced by this alleged error.
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member determines that the case is appropriate for review and decision by a
three-member panel under the standards of paragraph (e)(6) of this section.” 8
C.F.R. § 1003.1(e)(3). Yusupov contends that this case fits under paragraph (e)(6)
because it involves the “need to review a clearly erroneous factual determination
by an immigration judge.” Id. § 1003.1(e)(6)(v).
However, paragraph (e)(3) indicates that the decision to forward the case to
a three-member panel is to be made by the single Board member assigned the case.
Yusupov has not provided any authority for his contention that this Court has the
power to remand the case for it to be heard by a three-member panel.3
DENIED IN PART AND DISMISSED IN PART.4
In any event, in light of the factual inconsistencies in Yusupov’s case, we discern3
no abuse of discretion in the single Board member’s decision not to forward the case to a three-
member panel to resolve a “clearly erroneous factual determination.” See 8 C.F.R. §
1003.1(e)(6)(v).
Yusupov’s request for oral argument and his request for reconsideration of our4
prior denial of his motion for a stay of removal are DENIED.
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