FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 28, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-11869

Non-Argument Calendar

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Agency No. A79-629-839

MARIE ISMANE PIERRE,

Petitioner, 

versus

U.S. ATTORNEY GENERAL,

 Respondent.

 

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Petition for Review of a Decision of the 

Board of Immigration Appeals

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(April 28, 2008)

Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Marie Ismane Pierre, a native and citizen of Haiti, petitions for review of the

adoption and affirmance by the Board of Immigration Appeals (“BIA”) of the
 The decision also denied withholding of removal and relief under the United Nations Convention 1

Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. But, on appeal,

Pierre does not offer arguments on these claims; and thus, they are abandoned. See Sepulveda v.

U.S. AttorneyGen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (explaining that a petitioner abandons

an issue by failing to offer argument on that issue). 

2

decision of the Immigration Judge (“IJ”) denying asylum. No reversible error has 1

been shown; we deny the petition. 

We review the decisions of the IJ and the BIA in this case. See Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (noting that we review the BIA’s

decision; but “[i]nsofar as the [BIA] adopts the IJ’s reasoning, we will review the

IJ’s decision as well”). 

An alien may obtain asylum if she is a “refugee,” that is, a person unable or

unwilling to return to her country of nationality “because of persecution or a wellfounded fear of persecution on account of” a protected ground, including political

opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(a)(1), (b)(1). The asylum applicant

bears the burden of proving statutory “refugee” status with specific and credible

evidence. Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1286-87 (11th Cir. 2005). 

Pierre sought asylum based on her and her brother’s involvement in

Konfederasyon Inite Demokatik (“KID”), an opposition party to Lavalas: the thenruling party in Haiti. Pierre alleged that her brother had disappeared after the two

attended a KID meeting; and later, Lavalas began targeting her at the orphanage
 Pierre posits that the IJ impermissibly relied on the asylum interview notes in finding her 2

incredible because the notes never were admitted into the record. But the record clearly indicates

that the notes were part of the evidence of record. And the IJ did not err in considering Pierre’s prior

statements given during that interview because they were material and relevant to her claim.

See 8 C.F.R. § 1240.7 (“[t]he [IJ] may receive in evidence any oral or written statement that is

material and relevant to any issue in the case previously made by the respondent . . . during any

investigation, examination, hearing, or trial”).

3

where she worked. In denying Pierre’s asylum application, the IJ made an adverse

credibility determination about Pierre, which the BIA affirmed. The BIA explained

that (1) Pierre did not amend her asylum application to include the important fact

of her sister’s death at the hands of Lavalas, (2) inconsistencies existed between

her asylum application, asylum interview, and hearing testimony about when she

first received threatening phone calls from Lavalas and whether she was followed

after leaving the orphanage when Lavalas members came looking for her there,

(3) she did not sufficiently explain these important omissions and inconsistencies,

and (4) she failed to provide corroborating evidence for any part of her claim. 

Pierre now challenges the BIA’s affirmance of the adverse credibility

determination, arguing that the omissions and inconsistencies in her testimony

were either adequately explained or simply unclear and did not provide a cogent

reason for finding her incredible. She also argues that her lack of corroborating

evidence was excused because her testimony was sufficiently detailed and

consistent.2
 An IJ must make explicit credibility determinations, see Yang v. U.S. Attorney Gen., 418 F.3d 3

1198, 1201 (11th Cir. 2005); and the IJ did so in this case. In addition, because Pierre’s asylum

application and oral statements made at her hearing were the only evidence of persecution that she

offered, an adverse credibility determination would be “sufficient to support the denial of [her]

asylum application.” Forgue, 401 F.3d at 1287.

4

We review an adverse credibility determination under the substantial

evidence test; and we will not substitute our judgment for that determination. 

3

D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 818 (11th Cir. 2004); see also

Forgue, 401 F.3d at 1287 (“Once an adverse credibility finding is made, the

burden is on the applicant alien to show that the . . . credibility decision was not

supported by specific, cogent reasons or was not based on substantial evidence.”)

(internal quotation omitted). “Indications of reliable testimony include

consistency on direct examination, consistency with the written application, and

the absence of embellishments.” Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1255

(11th Cir. 2006). In addition, the weaker the applicant’s testimony, the greater the

need for corroborative evidence. Yang, 418 F.3d at 1201. 

The IJ and BIA provided specific, cogent reasons for the credibility

determination, which are supported by substantial evidence. See D-Muhumed,

388 F.3d at 819. A review of Pierre’s statements in her asylum application,

asylum interview, and at the hearing reveal inconsistencies on material elements of

her claim that she and her family suffered political persecution in Haiti at the
 Here, the BIA applied the “heart of the claim” test in determining that the inconsistencies in 4

Pierre’s testimony rendered her incredible. While we never expressly have adopted the “heart of the

claim” test, we still conclude that the BIA’s adverse credibility determination is supported by

substantial evidence. See Nreka v. U.S. Attorney Gen., 408 F.3d 1361, 1369 (11th Cir. 2005)

(upholding the denial of asylum because Nreka failed to provide sufficient corroborating evidence

and explanation to rebut the IJ’s express concerns about credibility of his testimony on “key

elements” of the claim).

5

hands of Lavalas because of her and her brother’s involvement in KID. Pierre 4

testified that her sister died at the hands of Lavalas in September 2003, shortly

after Pierre filed for asylum; but she failed to amend her application to reflect this

crucial fact. While she explained that she did not know how to amend her

application, it is noteworthy that Pierre had a lawyer when the IJ set a deadline for

amendments and submission of corroborating evidence. In addition, Pierre’s

testimony about when she first received threatening phone calls after her brother’s

disappearance and whether two Lavalas members who came looking for her at the

orphanage followed her or whether she escaped from them unseen was

inconsistent with her asylum application and interview. These omissions and

inconsistencies are about key elements of Pierre’s claim that Lavalas was

persecuting her and her family based on her brother’s participation in KID, and

therefore, cast doubt on her entire claim.

In the light of Pierre’s weak testimony, the IJ and BIA correctly noted that

she was required to -- but did not -- provide corroborating evidence to support her
 Even if Pierre were credible, the BIA is due to be affirmed: it rested on the alternative ground 5

that Pierre had not demonstrated an objectively reasonable fear of future persecution upon return to

Haiti. Substantial evidence supports this determination as Pierre was, at most, a low-level

participant in KID and Lavalas is no longer in power in Haiti.

 Below, Pierre styled her motion as one “to submit additional evidence.” We construe it as a

6

motion to reopen because it sought to have the IJ consider evidence not previously presented. See

Al Najjar, 257 F.3d at 1301 (stating that where a motion to remand “seeks to introduce evidence that

has not previously been presented, it is generally treated as a motion to reopen under [8 C.F.R.

§ 1003.2(c)]”). 

6

claim. See Yang, 418 F.3d at 1201. Pierre failed to provide her sister’s death

certificate, documentation of her involvement in KID, or a police report indicating

that her brother was missing. Pierre explained that she had these items but that

they were stolen from her car in February 2005. Pierre submitted a police report

documenting this theft; but, the police report did not list items relating to her

pending immigration proceedings as missing. And even still, the theft occurred

over a year after the deadline set by the IJ for submitting corroborating evidence. 

Accordingly, nothing in the record compels us to substitute our judgment on the

credibility issue. 

5

We briefly address Pierre’s claim that the BIA abused its discretion in

denying her motion to reopen because the evidence she sought to submit bore 6

directly on her credibility. We review the BIA’s denial of a motion to reopen for

an abuse of discretion; and the BIA’s discretion is “quite broad.” Gbaya v. U.S.

Attorney Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (quotation omitted).
7

We conclude that no abuse occurred here because three of the documents

that Pierre wished the IJ to consider -- a pregnancy certification letter, marriage

certificate, and a 2005 Country Report about conditions in Haiti -- were

unimportant to her claim and did not bear on her credibility. The remaining items,

including her sister’s death certificate, should have been filed before the asylum

hearing. And nothing in the record evidences that these items were unavailable at

that time. 

PETITION DENIED.