FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 7, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-10745

Non-Argument Calendar

________________________

Agency No. A70-571-306

RAUL MANUEL TORRES,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 7, 2008)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Raul Torres, a native and citizen of Peru, through counsel, petitions this
Court for review of the Board of Immigration Appeal’s (“BIA”) order adopting and

affirming the Immigration Judge’s (“IJ”) decision that he failed to qualify for

asylum or withholding of removal. 8 U.S.C. §§ 1158, 1231.

On appeal, Torres argues that the IJ erred by basing his adverse credibility

finding on only minor inconsistencies. In addition, he argues that the IJ erred by

requiring Torres to establish country-wide persecution and the feasibility and

practicality of relocating in Peru. Finally, Torres argues that the IJ erred by

requiring him to show proof of his membership in a political party to support his

claim of persecution based upon imputed political opinion.

We review the decision of the BIA, except to the extent that it adopts the IJ's

decision. Nreka v. U.S. Attorney Gen., 408 F.3d 1361, 1368 (11th Cir. 2005).

Because the BIA in this case affirmed the IJ's decision without opinion, we review

the IJ's analysis as if it were the BIA's. Id. We review legal issues de novo,

Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001), and

“administrative fact findings under the highly deferential substantial evidence test,”

Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). Under

the substantial evidence test, we must “review the record evidence in the light most

favorable to the agency’s decision and draw all reasonable inferences in favor of

that decision.” Id. at 1027. Under this test, we must affirm the IJ’s decision if it is

“supported by reasonable, substantial, and probative evidence on the record

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considered as a whole.” Id. (citation and internal punctuation omitted). To

reverse the BIA’s factual finding, we not only must conclude that the record

supports such a conclusion, but compels it. Id.

“The testimony of the applicant, if credible, may be sufficient to sustain the

burden of proof without corroboration.” 8 C.F.R. §§ 208.13(a), 208.16(b).

“Indications of reliable testimony include consistency on direct examination,

consistency with the written application, and the absence of embellishments.”

Ruiz v. U.S. Atty. Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). We have held that

the IJ must “determine credibility, and [we will] not substitute [our] judgment for

that of the IJ with respect to credibility findings.” Yang v. U.S. Att’y Gen., 418

F.3d 1198, 1201 (11th Cir. 2005). Thus, we will defer to the IJ’s credibility

finding as we would any factual finding, unless the evidence compels us to do

otherwise. Id. That said, “the IJ must offer specific, cogent reasons for an adverse

credibility finding.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.

2005).

In addition, the IJ “must make clean determinations of credibility.” Yang,

418 F.3d at 1201 (holding that the IJ’s references to Yang’s claim as a “ridiculous

fabrication” and Yang’s testimony as “extremely inconsistent” did not constitute an

adverse credibility finding). “Once an adverse credibility finding is made, the

burden is on the applicant alien to show that the IJ's credibility decision was not

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

Forgue, 401 F.3d at 1287 (citations omitted). “[A]n adverse credibility

determination alone may be sufficient to support the denial of an asylum

application” when there is no other evidence of persecution. Id. However, an

adverse credibility determination does not alleviate the IJ’s duty to consider other

evidence produced by the asylum applicant. Id. “If an applicant produces

evidence beyond his own testimony, it is not sufficient for the IJ to rely solely on

an adverse credibility determination in those instances.” Ruiz, 440 F.3d at 1255.

“[T]he weaker the applicant's testimony, . . . the greater the need for corroborative

evidence." Yang, 418 F.3d at 1201. “[I]f the [IJ] does not believe the applicant or

does not know what to believe, the applicant's failure to corroborate his testimony

can be fatal to his asylum application.” Forgue, 401 F.3d at 1287. If the factfinder

determines that corroborating evidence is available, we cannot reverse such finding

unless compelled to do so. 8 U.S.C. § 1252(b)(4).

“An alien who arrives in or is present in the United States may apply for

asylum, which the Attorney General has discretion to grant if the alien meets the

INA’s definition of a ‘refugee.’” Sepulveda v. U.S. Atty. Gen., 401 F.3d

1226, 1230 (11th Cir. 2005) (citing INA § 208(a)(1), (b)(1), 8 U.S.C. § 1158(a)(1),

(b)(1)). In pertinent part, INA § 101 defines a refugee as

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any person who is outside any country of such person’s nationality . . .

who is unable or unwilling to return to, and is unable or unwilling to

avail himself or herself of the protection of, that country because of

persecution or a well-founded fear of persecution on account of . . .

political opinion . . . .

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). A refugee seeking asylum

“carries the burden of proving [her] statutory ‘refugee’ status and thereby

establishing asylum eligibility.” Id. (citing Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001)).

“To establish asylum eligibility based on political opinion or any other

protected ground, the alien must, with credible evidence, establish (1) past

persecution on account of her political opinion or any other protected ground, or

(2) a ‘well-founded fear’ that her political opinion or any other protected ground

will cause future persecution.” Id. at 1230-31. We have held that:

To establish asylum based on past persecution, the applicant must

prove (1) that she was persecuted, and (2) that the persecution was on

account of a protected ground. To establish eligibility for asylum

based on a well-founded fear of future persecution, the applicant must

prove (1) a ‘subjectively genuine and objectively reasonable’ fear of

persecution that is (2) on account of a protected ground.

Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (internal citation

omitted). Nevertheless, an alien need not demonstrate that he would, in the future,

be singled out for persecution if he can demonstrate, among other things, that

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“there is a pattern or practice of persecution of a group of persons similarly

situated” to him on the basis of a protected ground. 8 C.F.R. § 208.13(b)(2)(iii).

“To qualify for withholding of removal, [petitioner] must have established

that it is more likely than not that her life or freedom would be threatened on

account of a statutorily protected factor if returned to [the country of removal].”

Silva, 448 F.3d at 1243 (citing INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)). “Where

an applicant is unable to meet the ‘well-founded fear’ standard for asylum, [s]he is

generally precluded from qualifying for either asylum or withholding of

[removal].” Id. (brackets in original) (quoting Al Najjar, 257 F.3d at 1292-93).

While the INA does not specifically define persecution, this Court has

acknowledged that “‘persecution’ is an ‘extreme concept,’ requiring ‘more than a

few isolated incidents of verbal harassment or intimidation,’ and that ‘[m]ere

harassment does not amount to persecution.’” Sepulveda, 401 F.3d at 1231

(citation omitted) (brackets in original). “Not all exceptional treatment is

persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). We have

held that the accumulation of two beatings, threatening phone calls, and being

kidnaped for 18 days amounted to past persecution. Ruiz v. Gonzales, 479 F.3d

762, 766 (11th Cir. 2007).

Upon review of the record and the parties’ briefs, we discern no reversible

error. In this case, the IJ provided specific and cogent reasons for his adverse

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credibility determination, which was supported by a number of inconsistencies in

Torres’s initial application, asylum interview, and testimony. Thus, substantial

evidence supports the denial of Torres’s claim for asylum. Because Torres has not

met his burden of proof with respect to the asylum claim, he also has not met his

burden with respect to his claim for withholding of removal under the INA.

Because Torres testimony was incredible and never established past persecution,

the IJ correctly never shifted the burden to the government to establish countrywide persecution or the feasibility and practicality of relocation in Peru. Finally,

there is nothing in the record to substantiate Torres’s claim that the IJ required

Torres to show proof of his membership in a political party to sustain persecution

based upon imputed political opinion. Accordingly, we deny the petition.

PETITION DENIED.

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