FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 10, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10165

Non-Argument Calendar

________________________

Agency Nos. A97-192-397

A97-192-398

ANDRE JEROME, 

ISLAINE JEROME, 

KERVENS JEROME, 

LOUBENS JEROME, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(September 10, 2008)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
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Andre Jerome (“Jerome”), on behalf of himself, his wife Islaine Jerome, and

their two children Kervens and Loubens Jerome (collectively “the petitioners”),

petitions this court for review of the Board of Immigration Appeals’s (“BIA”)

affirmance of the Immigration Judge’s (“IJ”) order of removal. Because the record

supports the adverse credibility finding, and the testimony, even if credible, does

not establish entitlement to relief, we deny the petition.

I. 

The petitioners, natives and citizens of Haiti, entered the United States in

July 2002 without being admitted or paroled, and the INS issued notices to appear

charging them with removability under 8 U.S.C. § 1182(a)(6)(A)(i). Jerome filed

an application for asylum, alleging that he had been persecuted on account of his

political opinion after he was arrested by police while at a local school

participating in a meeting for Mochrena, a political organization. He was detained

for five days, during which time he was questioned, threatened with execution,

denied food and water, was given a “blow to both ears,” and was slapped in the

face “many times.” He was released after his uncle bribed a police officer. After

his release, he discovered his house had been burned down and his wife and

children had gone into hiding. 

At the removal hearing, Jerome testified that he became active with the

Mochrena in October 1999. He attended meetings approximately once a month
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and spoke to others about joining Mochrena. On June 15, 2002, members of a

rival political party - Lavalas - informed police that Mochrena was planning a

meeting. Jerome attended the meeting, which was held in the street, and was

arrested along with two others. While in police custody, Jerome was questioned

about whether he was trying to recruit others to join Mochrena, slapped in the face,

and held for five days without other contact. He was released after his uncle paid a

bribe. When he went home following his release, he discovered his house had

been burned down; he believed Lavalas members were responsible. He then

walked fifteen minutes to his mother-in-law’s home, where he found his family

and they went into hiding. They stayed with a man named “Stephan” who was not

related to, or a friend of, Jerome. After a week, the family left Haiti. In support of

his testimony, Jerome referred to a letter written by Palerma Blanc, a neighbor who

stated that he witnessed Jerome’s arrest and persecution. 

The IJ questioned why Jerome would take his family to stay with a stranger. 

Jerome responded that Stephan was aware of the situation. The IJ further

questioned when Jerome had obtained the letter from Blanc. Jerome responded

that he contacted Blanc for the letter in February 2006. The letter, however, was

dated 2005.

Jerome’s wife testified that she knew her husband was arrested in June 2002,

but she was not involved and could not remember details. She stated that she hid
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at her mother’s house while Jerome was in jail, and she remained there until the

family left Haiti. She explained that sometimes they would stay with other people

such as her aunt, her mother’s neighbor Blanc, or someone named Theramen; she

did not mention “Stephan.” When questioned whether Blanc was Jerome’s

neighbor or her mother’s neighbor, she testified that Blanc was her mother’s

neighbor. 

The IJ denied relief, making an explicit adverse credibility finding based on

the inconsistencies between the asylum application, the testimony of Jerome, and

the testimony of Jerome’s wife, the issue of whether Blanc was Jerome’s neighbor,

and the inconsistencies between the locations of the Mochrena meetings. The IJ

noted the lack of corroborating evidence. On the merits, the IJ found that the

allegations involved only a single incident, there was no torture, and there was no

discussion of relocation. 

The petitioners appealed to the BIA, which dismissed the appeal. The BIA

agreed with the adverse credibility determination in light of the inconsistencies,

which the BIA found to be material. The BIA further found that, even if the events

described were true, they did not rise to the level of persecution, and it noted that

there was no evidence Lavalas burned down Jerome’s house. This petition for

review followed.

II.
 Jerome did not allege bias in his appeal before the BIA. Thus, the issue is not exhausted 1

and not properly before this court. Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13

(11th Cir. 2001). 

 As the government notes, Jerome raises this argument for the first time on appeal. Thus,

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it is not properly before this court. Fernandez-Bernal, 257 F.3d at 1317 n.13. 

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The petitioners argue that the IJ’s adverse credibility determination was not

supported by the record because the IJ overlooked testimony and exhibited bias

when he scolded Jerome for staying with a stranger. They also dispute the IJ’s 1

apparent conclusion that relocation was an option. Finally, they argue that Jerome

established past persecution based on the interrogation, detention, the face

slapping, and the burning of his home, and a well-founded fear of future

persecution. They assert that attempted murder - i.e. the burning of their home - is

persecution.2

We review the BIA’s decision in this case because the BIA did not expressly

adopt the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). We review de novo legal determinations. Id. Factual determinations are

reviewed under the “highly deferential” substantial evidence test and we must

affirm a “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) (internal citation omitted). Therefore, a fact

determination will be reversed only when the record compels, instead of merely
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supports, a reversal. Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006). 

Credibility determinations, like other factual findings, are reviewed under the

substantial evidence test. Forgue, 401 F.3d at 1286.

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

unwilling to return to his country of nationality “because of persecution or a

well-founded 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 applicant

satisfies this burden by showing, with specific and credible evidence: (1) past

persecution on account of a statutorily listed factor, or (2) a “well-founded fear” of

future persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). 

A showing of past persecution creates a presumption of a “well-founded fear,”

subject to rebuttal by the government. See Sepulveda v. U.S. Att’y Gen., 401 F.3d

1226, 1231 (11th Cir. 2005). If he cannot show past persecution, then a petitioner

must demonstrate a well-founded fear of future persecution that is both

subjectively genuine and objectively reasonable. Al Najjar, 257 F.3d at 1289. The

subjective component can be established “by the applicant’s credible testimony

that he or she genuinely fears persecution,” while the objective component “can be

fulfilled either by establishing past persecution or that he or she has a good reason

to fear future persecution.” Id. (quotation omitted).

The asylum applicant bears the burden of proving statutory “refugee” status
 The REAL ID Act of 2005 amended the Immigration and Nationality Act to permit adverse

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credibility determinations based on inconsistencies regardless of whether those inconsistencies go

to the heart of the asylum applicant's claim. See Pub.L. No. 109-13, § 101(a)(3), 119 Stat. 231, 303

(2005) (codified at 8 U.S.C. § 1158(b)(i)(B)(iii)). Because the petitioners’ asylum application was

filed prior to the enactment of the REAL ID Act on May 11, 2005, this amendment does not apply

to the petitioners’ claim. See id. § 101(h)(2), 119 Stat. at 305.

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with specific and credible evidence. Forgue, 401 F.3d at 1287. The credible

testimony of an applicant may suffice on its own to establish eligibility for asylum. 

Id. “Conversely, an adverse credibility determination alone may be sufficient to

support the denial of an asylum application.” Id. For there to be an adverse

credibility determination, the IJ must have made an explicit, clean determination of

credibility. Yang v. United States Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.

2005). “Once an adverse credibility finding is made, the burden is on the applicant

alien to show that the IJ’s credibility decision was not supported by specific,

cogent reasons or was not based on substantial evidence.” Forgue, 401 F.3d at

1287 (internal quotations omitted). “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. 

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1. Credibility

Upon review, we conclude that the IJ’s adverse credibility determination is

supported by the record. There were significant inconsistencies between Jerome’s

asylum application, his testimony, and the testimony of his wife, and these
Although this court has not addressed in a published opinion whether the inconsistencies 4

must go to the “heart of the claim” in order to support an adverse credibility determination for cases

filed before the effective date of the REAL ID Act’s amendments, we need not resolve the issue

because the inconsistencies identified at the hearing directly relate to the petitioners’ claims of

political persecution.

As noted by the government, Jerome does not offer any argument on his withholding of 5

removal and CAT claims. Thus, he has abandoned them. Sepulveda v. U.S. Att’y Gen., 401 F.3d

1226, 1228 (11th Cir. 2005). In any event, because Jerome cannot establish eligibility for asylum

relief, he cannot meet the more stringent burden for withholding of removal or CAT relief. Zheng

v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir. 2006); Forgue, 401 F.3d at 1288 n.4. 

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inconsistencies involved the crucial aspects of the claim.4

Notably, there was no corroborating evidence to support Jerome’s claims. 

The letter from Blanc only enhanced the inconsistencies and called into question

the validity of his corroboration. Thus, the IJ’s conclusion is supported by the

record.

2. Asylum5

“‘[P]ersecution is an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation, and that mere harassment does not

amount to persecution.’” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223,

1232 (11th Cir. 2007) (citation omitted); see also Silva v. U.S. Att’y Gen., 448

F.3d 1229, 1237 (11th Cir. 2006) (concluding that a written death threat alone did

not compel a finding of past persecution). This court has also rejected a rigid

requirement of physical injury, making clear in Sanchez Jimenez that “attempted

murder is persecution,” regardless of whether the petitioner was injured and even if
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the attack is unsuccessful. 492 F.3d at 1233; see also Mejia v. U.S. Att’y Gen.,

498 F.3d 1253, 1257-58, 1257 n.7 (11th Cir. 2007) (extending the rule in Sanchez

Jimenez to other projectiles such as rocks). “In assessing past persecution [this

court is] required to consider the cumulative impact of the mistreatment the

petitioner [ ] suffered.” Mejia, 498 F.3d at 1258. Recently, however, in Djonda v.

U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008), this court held that a

“minor beating” involving only scratches and bruises does not constitute

persecution. 

Here, the adverse credibility determination is sufficient basis to deny relief. 

Nevertheless, even if the testimony was credible, Jerome failed to establish

eligibility for asylum because he did not show that he suffered past persecution. 

The single event, which involved detention and face-slapping does not rise to the

level of persecution. See Djonda, 514 F.3d at 1174. And there was no evidence to

provide any nexus between Jerome’s political opinion and the burning of his

house.

Moreover, Jerome cannot show a well-founded fear of future persecution. 

Even if his testimony were sufficient to establish a subjective fear of future

persecution, that fear is not objectively reasonable. Jerome suffered only a single

incident and there was no evidence to show that he will be targeted if he returns to

Haiti. Accordingly, we DENY the petition.