FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 13, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-10219 

Non-Argument Calendar

 ________________________

 Agency No. A088-402-350

SAIDA RAHMATHODJAEVNA AZIZOVA, 

RUSTAM NAZRILLAEVICH AZIZOVA, 

FARIDA RUSTAMOVNA AZIZOVA, 

llllllllllllllllllllllllllllllllllllllll Petitioners,

 versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll Respondent.

________________________

 Petition for Review of a Decision of the

 Board of Immigration Appeals

 ________________________

(October 13, 2011)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Saida Azizova (“Azizova”), the lead petitioner, and Rustam Azizov

(“Rustam”) and Farida Azizova (“Farida”), the derivative petitioners (collectively
“Petitioners”), seek review of the Board of Immigration Appeals’ (“BIA”) order

affirming the immigration judge’s (“IJ”) denial of their application for asylum and

withholding of removal under Immigration and Nationality Act (“INA”) §§ 208,

241, 8 U.S.C. §§ 1158, 1231. Aside from passing references, Petitioners’

appellate brief does not raise any arguments regarding relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c); thus, they have

abandoned that issue on appeal and we do not address it. Prado-Gonzalez v.

I.N.S., 75 F.3d 631, 632 (11th Cir. 1996) (finding that a petitioner abandons an

issue on appeal where he does not seek judicial review of that issue in his brief).

Petitioners raise three issues on appeal. First, they argue that the IJ’s and

BIA’s adverse credibility finding was clearly erroneous because it was based on

hearsay evidence from an overseas investigation. Second, they contend that their

former counsel was ineffective because he failed to object to allegedly

inadmissible evidence and the interpreter’s allegedly faulty translation during their

removal proceedings, which they assert affected the outcome of their case. Third,

Petitioners submit that they were deprived their due process right to a full and fair

hearing because of faulty translation. 

BACKGROUND

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Petitioners are native-born citizens of Uzbekistan seeking asylum protection

based on the Azizova’s claims. Petitioners request asylum on the grounds that

Azizova was forced to flee Uzbekistan after being persecuted by the government

based on her political opinion. Azizova taught mathematics at the Polytechnic

University Lyceum in Tashkent starting in 1995. In 2002, Azizova researched a

concept called “critical thinking,” presented it to her colleagues, and introduced it

into the curriculum with permission of her supervisor. In April 2004, Azizova was

instructed by the Department of Internal Affairs of the National Security Service

to cease using critical thinking or her employment would be terminated. In June

2004, Azizova spoke out against the Uzbek government in class during a lecture

on the comparative minimum wage. She claims that her remarks were sparked by

her anger at the recent death of her brother-in-law who, she believed, was arrested

due to his political beliefs and who, she believed, died in an Uzbek prison. 

One week after her lecture, the police arrested Azizova and demanded

$1,000 from Rustam, her husband, for her release. He gathered the money, and

she was released. Azizova testified that she was ordered to resign on September 2,

2004, although an investigation by the Department of Homeland Security (“DHS”)

through the American Embassy in Uzbekistan produced evidence that she resigned

on September 2, 2003. 

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In January 2005, Azizova and a friend were arrested, held for five days, and

assessed a fine of $500. Azizova did not mention beatings during this

confinement in either her asylum application or in her testimony on direct

examination. However, on cross-examination Azizova testified that she had been

beaten by the police during this detention. Addressing the discrepancy, she stated

that it was difficult for her to remember what happened. In June 2005 the police

raided Petitioners’ home and “took everything,” including the “workbook”

Azizova kept with official stamps noting the start and end dates of her government

employment. They also threatened Rustam at his business and told him that unless

he paid $1,000 per month, his family would be harmed. Azizova produced a copy

of her workbook indicating a resignation date of September 2, 2004 to the IJ in

September 2009. She stated that her daughter who is still in Uzbekistan had a

copy and sent it to her over the Internet.

Farida was admitted to the United States on August 18, 2005 on a

nonimmigrant exchange-student visa, and in January 2006 Azizova attempted to

visit Farida. Azizova was detained in the airport, transferred to Internal Affairs,

and imprisoned. In her aslyum testimony, Azizova testified that she had been

beaten once during this period. In the hearing before the IJ, she testified that she

was beaten once per month, if not once per week. When confronted with the

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contradictory testimony, she stated that her asylum application contained only

major events. Internal Affairs demanded $4,000 for her release. After six months,

Rustam was able to gather the money and she was released. Rustam paid people

to bring Azizova through the Uzbek airport, and so she was able to travel to the

United States in September 2006.

On September 17, 2006, Azizova and Rustam were admitted to the United

States on nonimmigrant visas. In the spring of 2007, Azizova filed an application

for asylum protection, listing her husband Rustam and her daughter Farida as

derivative beneficiaries. They appeared in Immigration Court in August and

September of 2009. At the conclusion of the hearings, the IJ denied Azizova’s

application for asylum, withholding of removal, and CAT relief. After a timely

notice of appeal, the BIA dismissed Azizova’s appeal and entered a final order of

removal on December 22, 2010. 

As part of the investigation into the merits of the claim, the IJ requested that

DHS verify Azizova’s story. As part of this investigation, they contacted the

embassy in Uzbekistan. This investigation led to evidence inconsistent with

Azizova’s statements. The Human Resources department at the Lyceum indicated

that Azizova’s supervisor had been terminated in December 2003 or January 2004,

not in the spring of 2004, and that Azizova had resigned in September 2003, not in

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September 2004. These facts were stated in an email from Rachel Waldstein, with

a State Department email address, to Thomas Ayz, a DHS employee working at

the Miami Office of Chief Counsel. Ayz testified before the IJ as to the contents

of this email. 

STANDARD OF REVIEW

We review the BIA’s factual determinations under the substantial evidence

test, and affirm the BIA’s decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole. D-Muhumed v. U.S. Att’y

Gen., 388 F.3d 814, 817–18 (11th Cir. 2004). To the extent that the BIA’s

decision was based on a legal determination, our review is de novo. Id. at 817. 

We also review constitutional challenges de novo. Lapaix v. U.S. Att’y Gen., 605

F.3d 1138, 1143 (11th Cir. 2010) (per curiam).

We review the BIA’s decision as the final judgment. Ruiz v. Gonzales, 479

F.3d 762, 765 (11th Cir. 2007). However, “[i]nsofar as the Board adopts the IJ’s

reasoning, we will review the IJ’s decision as well.” Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001) (citation omitted). 

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

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or

Secretary of the Department of Homeland Security has discretion to grant asylum

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if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C.

§ 1158(b)(1). A “refugee” is

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

. . . and 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 race, religion, nationality, membership in a particular

social group, or political opinion . . . .

8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of proving that

he qualifies as a “refugee.” 8 C.F.R. § 208.13(a). To meet this burden, “the

applicant must, with specific and credible evidence, establish (1) past persecution

on account of a statutorily protected ground or (2) a well-founded fear of future

persecution on account of a protected ground.” Mejia v. U.S. Att’y Gen., 498 F.3d

1253, 1256 (11th Cir. 2007) (citations omitted). 

To be withheld from removal under the INA, an alien must show that his

life or freedom would be threatened on account of a protected ground. Sanchez v.

U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004) (per curiam). An alien

seeking withholding of removal must show that it is more likely than not that she

will be persecuted or tortured upon being returned to her country. Sepulveda v.

U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (per curiam). Because this

standard is more stringent than the standard for asylum, an alien who fails to

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establish eligibility under the refugee status is generally precluded from qualifying

for withholding of removal. Id.

I.

We review credibility determinations under the substantial evidence test. 

Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006) (per curiam). The

trier of fact must determine credibility, and we will not substitute our judgment for

that of the BIA with respect to credibility findings. D-Muhumed, 388 F.3d at 818. 

Under the highly deferential substantial evidence test, we will not reverse an

administrative credibility finding unless “the evidence compels a reasonable fact

finder to find otherwise.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir.

2006) (citation and internal quotation marks omitted). 

While an adverse credibility finding may be sufficient to support denial of

asylum, such a determination does not relieve the fact finder of his duty to

consider other evidence presented by the applicant. Id.; Forgue v. U.S. Att’y Gen.,

401 F.3d 1282, 1287 (11th Cir. 2005). However, “[o]nce 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.” Forgue, 401 F.3d at 1287 (citation and internal quotation

marks omitted). 

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“Indications of reliable testimony include consistency on direct

examination, consistency with the written application, and the absence of

embellishments.” Ruiz, 440 F.3d at 1255. The alien’s testimony, if credible, may

be sufficient to sustain the burden of proof for asylum without corroboration. 8

C.F.R. § 208.13(a); Forgue, 401 F.3d at 1287. “The weaker an applicant’s

testimony, however, the greater the need for corroborative evidence.” Yang v.

U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).

The REAL ID Act of 2005 amended the INA’s asylum provisions under

INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii), to provide that an adverse

credibility determination can be based on inconsistencies, inaccuracies, or

falsehoods, regardless of whether they relate to the heart of an applicant’s claim. 

Pub. L. No. 109-13, § 101(a)(3), (d), 119 Stat. 302, 303–05 (2005). 

In this case, the BIA upheld the IJ’s adverse credibility finding based on a

number of omissions, inconsistencies, and contradictions among Azizova’s

testimony, asylum application, and overseas investigations. Weighing this

evidence, the IJ found that Azizova lacked credibility due to the cumulative

material inconsistencies. The IJ based his adverse credibility finding on:

inconsistent evidence as to the date of Azizova’s resignation and authenticity of

letters from her former employer; Azizova’s contradictory statements regarding

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her employment status; Azizova’s offering the death certificate of her

father-in-law rather than that of her brother-in-law; Azizova’s presenting evidence

from her workbook when she claimed it had been seized by the government; and

Azizova’s cursory explanation of the “critical thinking” curriculum,

implementation of which she alleges is one of the bases of her persecution. We

find that substantial evidence supports the determination by the BIA and the IJ that

Azizova’s testimony was not credible. The BIA’s finding that Azizova’s testimony

was incredible, together with the insufficient corroborative evidence that she

submitted, do not compel a reversal of the BIA’s decision to deny relief. 

II.

Pursuant to the Fifth Amendment Due Process Clause, “[a]liens enjoy the

right to the effective assistance of counsel in deportation proceedings.” Mejia

Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999) (citation omitted)

(involving an application for discretionary suspension of deportation). “[T]o

establish the ineffective assistance of counsel in the context of a deportation

hearing, an alien must establish that his or her counsel’s performance was

deficient to the point that it impinged upon the fundamental fairness of the hearing

such that the alien was unable to reasonably present his or her case.” Dakane v.

U.S. Att’y Gen., 371 F.3d 771, 774–75 (11th Cir. 2004) (citation and internal

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quotation marks omitted). In addition, a petitioner seeking to reopen her

proceedings due to ineffective assistance of counsel must show that counsel’s

performance was so deficient that it may have affected the outcome of the

proceedings. Id. at 775.

We have held that an attorney’s deficient representation does not deprive an

alien of due process if the inadequate representation only prevents him from being

eligible for purely discretionary relief from removal. Mejia Rodriguez, 178 F.3d

at 1146, 1148. However, aliens do have a protected interest in petitioning for

asylum. Hatian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. Unit B 1982)

(finding “in the federal regulations establishing an asylum procedure . . . a clear

intent to grant aliens the right to submit and the opportunity to substantiate their

claim for asylum”). While the grant of asylum is a matter of discretion lying with

the Attorney General, his discretion is not unlimited as it is in purely discretionary

relief from removal. INA § 242(b)(4)(D), 8 U.S.C. § 1252(b)(4)(D) (“The

Attorney General’s discretionary judgment whether to grant [asylum relief] shall

be conclusive unless manifestly contrary to the law and an abuse of discretion.”). 

Thus, the BIA erred in finding that the Petitioners’ ineffective assistance of

counsel claim was barred due to the discretionary nature of asylum. 

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Nevertheless, Petitioners’ ineffective assistance of counsel claim based on

the non-discretionary withholding of removal was heard by the BIA. Because the

Petitioners’ asylum and withholding of removal claims are predicated on the same

hearing and the same facts, the BIA’s failure to address their ineffective assistance

of counsel claim for asylum is not reason to remand. See Miccosukee Tribe of

Indians of Fla. v. Kraus-Anderson Const. Co., 607 F.3d 1268, 1274 n.11 (11th Cir.

2010) (noting that remand is futile when the opinion explores all possibilities of

the complainant’s allegations). 

Petitioners’ ineffective assistance of counsel claim fails because they did

not show that their former counsel’s performance was so deficient that it may have

affected the outcome of the proceedings, nor did they show that former counsel’s

actions prejudiced the outcome. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269,

1274 (11th Cir. 2005) (per curiam). 

The Petitioners’ first basis for their claim is a failure to object to evidence

containing multiple hearsay. To find ineffective assistance of counsel, we must

find both that counsel’s performance was deficient, and that this deficient

performance resulted in prejudice affecting the outcome of the proceedings. 

Assuming arguendo that counsel’s failure to object to the email in which the

Department of State official provided information stating that Azizova resigned

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one year prior to the date she claims amounted to deficient performance,

Petitioners have not shown that the outcome of their case was prejudiced by such a

finding. As stated above, Azizova’s resignation date was one of the

inconsistencies upon which the IJ based his credibiltiy finding, but not the only

one. 

Additionally, Petitioners argue that their counsel was ineffective for failing

to object to faulty translation. Petitioners again fail to establish that they were

prejudiced by failure to object to the translation. They have indicated neither what

the ruling on an objection would have been, nor how it would have changed the

result of the case. The adverse credibility finding was premised not only on

inconsistencies in the testimony at trial, but also on omissions and inconsistencies

between information from various sources. 

Therefore, we do not find that the petitioners met the standard to show

ineffective assistance of counsel.

III.

“The presence of a competent interpreter is important to the fundamental

fairness of a hearing, if the alien cannot speak English fluently.” Matter of Tomas,

19 I. & N. Dec. 464, 465 (BIA 1987). There is no due process violation where an

interpreter translated all the questions asked of the alien and there was no

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complaint by the petitioner’s attorney at the hearing that the hearing was unfair or

that the petitioner was unaware of what was transpiring. Soares v. I.N.S., 449 F.2d

621, 623 (5th Cir. 1971).

1

Because an interpreter was present at the proceedings and translated all the

questions, and Petitioners’ former attorney did not complain that Azizova was

unaware of what was transpiring during the proceedings or make any objections to

the translation, there was no due process violation. See Soares, 449 F.2d at 623.

CONCLUSION

Accordingly, upon review of the record and consideration of the parties’

briefs, we deny the petition. 

PETITION DENIED.

We have adopted Fifth Circuit precedent decided before the Circuit split in 1981 as 1

binding as binding on this court. Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc).

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