[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-13504

Non-Argument Calendar

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Agency No. A079-489-156

ALEKSANDR SERGEYEVICH NESTERENKO, 

YULIYA YURYEVNA NESTERENKO,

MARIYA ALEKSANDROVNA NESTERENKO, 

 Petitioners,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(May 7, 2013)

Before CARNES, MARTIN, and FAY, Circuit Judges.

PER CURIAM: 

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Lead petitioner Aleksandr Sergeyevich Nesterenko, along with his wife 

Yulia and their minor daughter Mariya, seeks review of the Board of Immigration 

Appeals’ affirmance of the Immigration Judge’s denial of his application for 

asylum, withholding of removal, and relief under the United Nations Convention 

Against Torture (CAT). See 8 U.S.C. § 1158(a); 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 

208.16(c). The petitioners contend that the IJ’s adverse credibility determination, 

which the BIA adopted, is not supported by substantial evidence and that 

Aleksandr’s testimony was therefore sufficient to establish past persecution in his 

native country of Russia on account of his Baptist faith, as required to warrant the 

grant of asylum and withholding of removal. The petitioners alternatively

maintain that the BIA erred in failing to grant such relief based on a well-founded 

fear of future persecution, which they argue Aleksandr established through record 

evidence documenting discrimination, harassment, and violence against minority 

religious groups in Russia.

1

 

I.

The petitioners, natives and citizens of Russia, entered the United States on 

July 10, 2000, as nonimmigrant visitors with authorization to remain in the country 

until January 9, 2001. The petitioners stayed in the United States past the 

 1 The petitioners do not specifically address or challenge the denial of their request for 

CAT relief, and have therefore abandoned the issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 

1226, 1228 n.2 (11th Cir. 2005). 

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authorized time period and later conceded removability. With the aid of a Russian 

interpreter, Aleksandr applied for asylum, withholding of removal, and CAT relief, 

including his wife and minor daughter as derivative beneficiaries. Aleksandr 

claimed that, on account of his evangelical Baptist faith, he suffered past 

persecution and had a well-founded fear of future persecution in Russia, 

particularly at the hands of the Russian National Unity Party (RNU), a neo-fascist 

paramilitary organization committed to maintaining both ethnic purity and strict 

adherence to Russian Orthodox Christianity. 

Aleksandr based his claim for relief on seven discrete incidents of past 

mistreatment in Russia, two of which he neglected to disclose in his asylum 

application, credible fear interview, or both. His accounts of several of these 

incidents were marked by varying degrees of apparent inconsistencies. Aleksandr 

identified the following instances of abuse: (1) a February 1993 incident where he

and other members of his Baptist congregation were beaten by RNU members for 

distributing religious materials in a public square, and then detained by the local 

police for three days for illegally distributing such materials; (2) a January 1994 

incident in which RNU members vandalized and ransacked his business; (3) a 

1997 incident in which he and his driver were stopped by RNU members and 

viciously beaten with sticks; (4) an incident in 1997 or 1998 where he was stopped 

by a police officer, falsely accused of drug possession, and detained for several

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hours; (5) a February 1999 incident in which RNU members grabbed Mariya, then 

seven months old, and repeatedly tossed her into the air while threatening to drop 

her onto the pavement; (6) a 2000 incident in which RNU members set his church 

ablaze and assaulted the parishioners as they evacuated the burning building; and 

(7) the disappearance of his pastor shortly after the arson attack. 

Aleksandr also maintained that, from February 1993 onward, he sporadically 

received threatening telephone calls and fliers from unknown persons, who he 

believed were affiliated with the RNU, which demanded that he either convert to 

Russian Orthodox Christianity, the dominant faith in the country, or renounce his 

Baptist religion altogether. His mother continued to receive threatening phone 

calls even after Aleksandr and his family left for the United States, and in 2001 her 

mailbox was set on fire and “Death to sectarians” and a swastika were spray 

painted on her apartment door. 

In support of their asylum application, the petitioners submitted various 

governmental reports and news articles, which generally confirmed that members 

of minority religious groups in Russia, including Baptists and other evangelical 

Christians, were subject to discrimination, harassment, and occasional physical 

attacks, particularly by skinheads, nationalists, and right-wing extremists. The 

U.S. State Department’s 2007 reports on human rights practices and religious

freedom in Russia noted incidents of harassment and violence directed at religious 

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minorities, including cases of vandalism and arson attacks on non-Orthodox

Christian churches. The State Department’s 2005 report on religious freedom 

documented similar hostility, harassment, and instances of religiously motivated

violence directed at evangelical Christians and other non-Orthodox religious 

groups. The report specifically mentioned incidents of vandalism, bombings, and 

arson attacks on Baptist and Pentecostal churches located in disparate regions 

throughout the country. Additional reports and new articles ranging from 2001 

through 2005 documented church burnings and physical attacks on members of 

Protestant denominations, which were rarely investigated by the police and seldom 

led to the arrest of suspects. 

The IJ initially granted the petitioners’ request for asylum, concluding that 

Aleksandr credibly testified about the mistreatment he suffered in Russia, that the 

discrepancies between his hearing testimony and earlier statements were not 

significant enough to undermine his credibility, and that the cumulative impact of

the identified incidents of abuse amounted to past persecution on account of his 

religious faith, even though none of the incidents individually reached that level. 

The BIA, on the government’s appeal, found the credibility determination 

inadequate because the IJ failed to explain why the inconsistencies did not 

significantly undermine Aleksandr’s credibility, and failed to make an express

determination as to whether any of the inconsistencies were “key” to Aleksandr’s

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asylum claim. The BIA accordingly remanded the case for a new credibility 

determination. 

On remand, the IJ made individual credibility determinations with respect to 

each of the alleged incidents of past mistreatment, and then rendered an 

overarching adverse credibility finding based on the combined effect of numerous 

purported inconsistencies between Aleksandr’s hearing testimony, asylum 

application, and responses at his credible fear interview. While the IJ found that 

Aleksandr consistently and credibly testified about his Baptist faith, the beating

and three-day detention he experienced in February 1993, and the threatening 

communications he received thereafter, the IJ rejected the remaining portions of 

his testimony as not credible. The IJ expressly relied on perceived discrepancies 

concerning the ownership and merchandise distributed by the allegedly ransacked

business, the date on which Aleksandr and his driver were attacked by RNU 

members, the date and length of time the police detained him for allegedly 

possessing drugs, and whether he was physically present during the alleged church 

burning. The IJ also identified several apparent inconsistencies in Aleksandr’s 

account of the 1999 incident involving his infant daughter, including his 

description of the uniforms worn by the RNU members, whether his daughter was 

snatched from his hands or a stroller, whether the RNU members physically 

assaulted his family, and whether his wife was present at the time. The IJ

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emphasized that Aleksandr failed to mention the alleged church burning in his 

asylum application, and failed to disclose the alleged disappearance of his pastor in 

either his application or credible fear interview. Based solely on the adverse 

credibility determination, the IJ concluded that Aleksandr failed to carry his burden 

of demonstrating his eligibility for asylum, withholding of removal, or CAT relief. 

The BIA expressly adopted and affirmed the IJ’s decision, and highlighted 

several of the discrepancies cited by the IJ in support of the adverse credibility 

determination. The BIA concluded that Aleksandr’s lack of credibility on critical 

aspects of his claim was dispositive on the issue of whether he had established 

eligibility for asylum, withholding of removal, and CAT relief, and that there was 

no need to further address whether he suffered past persecution or had a wellfounded fear of future persecution upon his return to Russia. 

II.

Where, as here, the BIA issues its own decision, but expressly adopts the 

IJ’s opinion or reasoning, we review both the BIA’s and IJ’s decisions. Xia v. U.S. 

Att’y Gen., 608 F.3d 1233, 1239 (11th Cir. 2010). Administrative factual findings, 

including credibility determinations, are reviewed under the highly deferential 

substantial evidence test, which requires us to affirm the agency’s decision if it is 

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

considered as a whole.” Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 

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(11th Cir. 2008) (quotation marks omitted). We may reverse a factual finding or 

credibility determination only when the record compels reversal; the fact that the 

record may support a contrary conclusion is not enough. Id. at 1345. 

An asylum applicant must, with specific and credible evidence, establish

either past persecution or a well-founded fear of future persecution on account of 

race, religion, nationality, membership in a particular social group, or political 

opinion. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286–87 (11th Cir. 2005). A 

sufficient showing of past persecution gives rise to a rebuttable presumption of a 

well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). However, even 

in the absence of past persecution, an applicant may still be entitled to relief if he

can demonstrate a well-founded fear of persecution by showing either “a 

reasonable possibility [that he] would be singled out individually for persecution,” 

or that he is a member of a group that is subject to a “pattern or practice” of 

persecution in his native country. 8 C.F.R. § 208.13(b)(2)(iii). To qualify for 

withholding of removal, an alien must satisfy the more stringent standard of 

demonstrating that it is “more likely than not that [he] will be persecuted or 

tortured” upon being returned to his country. Sepulveda v. U.S. Att’y Gen., 401 

F.3d 1226, 1232 (11th Cir. 2005). 

An adverse credibility determination must be supported by “specific, cogent 

reasons,” and indications of reliable testimony include “consistency on direct 

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

embellishments.” Li Shan Chen v. U.S. Att’y Gen., 672 F.3d 961, 964 (11th Cir. 

2011) (quotation marks omitted).2 Once an adverse credibility determination is 

made, the burden is on the applicant to show that it “was not supported by specific, 

cogent reasons or was not based on substantial evidence.” Shkambi v. U.S. Att’y 

Gen., 584 F.3d 1041, 1049 (11th Cir. 2009) (quotation marks omitted). An adverse 

credibility determination alone may be sufficient to support the denial of asylum or 

withholding of removal, but only if the applicant produces no evidence other than 

his testimony. Li Shan Chen, 672 F.3d at 964; Forgue, 401 F.3d at 1287. If an 

applicant “produces other evidence of persecution, whatever form it may take, the 

IJ must consider that evidence, and it is not sufficient for the IJ to rely solely on an 

adverse credibility determination in those instances.” Forgue, 401 F.3d at 1287. 

The petitioners contend that the omissions and inconsistencies identified by 

the IJ in support of his adverse credibility determination are either immaterial, the 

result of poor communication or translation, or are not inconsistencies at all. We 

agree with their assessment, but only to a limited extent that does not compel

 2 Because the petitioners’ asylum application was filed before May 11, 2005, their claims 

for immigration relief are not governed by the REAL ID Act of 2005, which provides that an 

adverse credibility determination may be based on inconsistencies regardless of whether they go 

“to the heart of the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Shkambi v. U.S. Att’y 

Gen., 584 F.3d 1041, 1049 n.7 (11th Cir. 2009). We have never decided in a published opinion 

whether adverse credibility determinations in pre-REAL ID Act cases must be based on 

inconsistencies that go to the heart of an applicant’s claim, and we need not resolve that issue in 

this case because, as we explain later, a number of the inconsistencies identified by the IJ and the 

BIA directly relate to the petitioners’ allegations of past persecution. 

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reversal of the adverse credibility determination. Two of the purported 

inconsistencies cited by the IJ are not supported by the record and, as such, are not 

actual inconsistencies. The IJ concluded that Aleksandr gave inconsistent 

descriptions about the uniforms worn by the RNU members during the 1999 

incident involving his daughter because he testified that the men were wearing 

“winter camouflage clothes,” but stated in his credible fear interview that they 

wore “black uniforms.” During his hearing testimony, however, Aleksandr 

promptly clarified that the RNU members wore dark security guard uniforms 

adorned with swastikas, which was consistent with his earlier statements. The 

purported inconsistency stemmed entirely from the IJ’s view that winter 

camouflage referred to white-colored clothing. But given Aleksandr’s prompt 

explanation about what he meant by winter camouflage and his otherwise

consistent statements that the RNU members wore dark uniforms, the IJ’s 

interpretation of the phrase “winter camouflage clothing” was unreasonable and 

based solely on speculation or conjecture. See Tang v. U.S. Att’y Gen., 578 F.3d 

1270, 1278 (11th Cir. 2009) (noting that an adverse credibility determination must 

rest on more than speculation, conjecture, or personal perceptions). 

Similarly, the IJ found that Aleksandr’s hearing testimony failed to mention 

the presence of his wife during this incident, which purportedly conflicted with his 

asylum application. Although Aleksandr did not specifically refer to his wife 

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during his testimony on direct examination, he noted that RNU members 

threatened to “kill our kids” and “scolded us” for subscribing to a minority 

religious creed, and he later mentioned on cross-examination that his wife was 

pushing their daughter in a stroller when the RNU members first approached them. 

The record, therefore, does not support the IJ’s determination that Aleksandr’s 

hearing testimony and asylum application offered inconsistent accounts about

whether his wife was present during the particular incident. 

Two other discrepancies cited by the IJ are supported by the record, but are 

not material enough, when viewed in isolation, to constitute a reasonable or cogent 

basis for discrediting Aleksandr’s testimony. See Todorovic v. U.S. Att’y Gen., 

621 F.3d 1318, 1326 (11th Cir. 2010) (explaining that an inconsistency may 

constitute substantial evidence to support an adverse credibility determination 

where it is “inconsistent enough or material enough that rejecting the applicant’s 

entire account would be a ‘reasonable’ decision for an IJ to make”). The IJ wholly 

rejected Aleksandr’s account of the 1997 incident in which he was viciously beaten 

by RNU members based solely on a discrepancy about whether the attack occurred 

in August of that year, as indicated in Aleksandr’s hearing testimony, or June of 

that year, as indicated during his credible fear interview. At each stage of the 

proceedings, however, Aleksandr gave otherwise consistent accounts of the attack, 

and he explained at the merits hearing that he could not recall the exact dates of 

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events that occurred more than eight years earlier. Under the circumstances, a 

minor discrepancy concerning the precise month in which the incident took place

does not provide a reasonable basis for discounting Aleksandr’s testimony about 

the entire episode as not credible. Likewise, the IJ pointed to an inconsistency 

about whether Aleksandr’s daughter was snatched from his hands, as indicated in 

his asylum application, or a stroller, as suggested in his hearing testimony. The 

distinction between “hands” and a “stroller” does not constitute a material 

inconsistency in Aleksandr’s account of the incident, particularly given that 

Aleksandr’s asylum application was translated into English by a Russian 

interpreter and the English term “hands,” when used in conjunction with the act of 

snatching or grabbing, is often employed in a metaphorical sense. 

Nevertheless, the BIA and the IJ identified a number of actual 

inconsistencies that, either individually or collectively, were significant enough to 

constitute specific, cogent reasons to support their adverse credibility 

determination. See Shkambi, 584 F.3d at 1049. The IJ and the BIA accurately 

noted that Aleksandr provided conflicting statements regarding the date and length 

of time that the police allegedly detained him. His asylum application indicated 

that he was detained for “a whole day” and released “after 24 hours,” while he later 

testified that his detention lasted approximately three or four hours. He also 

asserted at various times, including on cross-examination, that the incident 

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occurred in 1997, while his testimony on direct examination indicated that it 

happened in 1998. There was also a discrepancy with regard to whether he and his 

wife were physically assaulted during the 1999 incident involving his infant 

daughter. Although Aleksandr stated in his credible fear interview that the RNU 

members “hit [his] family,” he did not mention any physical abuse in his asylum 

application or hearing testimony. 

Furthermore, Aleksandr offered inconsistent, or at least confusing, accounts 

about the nature and ownership of the business that was allegedly ransacked by 

RNU members. During the merits hearing, Aleksandr testified that he opened the 

business with other members of his congregation, and that it sold food and clothing 

and distributed religious materials on behalf of their church. In his earlier 

statements, however, Aleksandr made no mention of the fact that he opened the 

business with fellow church members or that the company distributed religious 

materials, and he inconsistently described the business as selling automotive parts 

instead of food and clothing. He also suggested during his credible fear interview 

that he was physically present during the alleged arson attack on his church in 

2000, stating that RNU members “lit us on fire” and started to “beat us” after “[w]e

broke the windows [of the church] to escape,” though he later testified that he did 

not arrive at the church until after the relevant events took place. As the IJ noted, 

he also failed to disclose the alleged church burning in his asylum application, and 

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failed to mention the alleged disappearance of his congregation’s pastor in either 

the application or his credible fear interview. 

Aleksandr offered explanations for some these discrepancies before the BIA, 

which he now reiterates, asserting that: (1) he used the phrase “a whole day” in a 

figurative sense when recounting his detention, which his Russian interpreter 

mistakenly interpreted to mean a 24-hour period; (2) he used the terms “we” and 

us” when describing the arson attack in his credible fear interview to broadly refer 

to his “religious brethren”; and (3) it was unlikely that the asylum officer would 

have asked about the alleged disappearance of his pastor during the credible fear 

interview when he did not disclose the incident in his asylum application. While 

these explanations might be plausible, they do not account for all of the material 

discrepancies cited by the IJ. Nor do they otherwise compel reversal of the adverse 

credibility determination. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1223 (11th 

Cir. 2006) (concluding that, although an asylum applicant offered tenable 

explanations for inconsistencies, those explanations would not compel a reasonable 

fact finder to reverse the IJ’s adverse credibility determination).

The cumulative impact of several of the inconsistencies cited by the BIA and 

IJ, which are both supported by the record and relate to critical aspects of

Aleksandr’s claimed mistreatment in Russia, adequately supports the adverse 

credibility determination. In turn, the record does not compel the conclusion that 

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the petitioners have met their burden of establishing past persecution in Russia.

3

 

Although the governmental reports and news articles submitted by the petitioners 

indicate that religious minorities are subject to discrimination, harassment, and 

occasional acts of violence in Russia, that evidence did not corroborate the 

individual incidents of mistreatment that Aleksandr claimed to have suffered.

However, the adverse credibility determination was not by itself sufficient to 

dispose of the petitioners’ claims for asylum or withholding of removal. Even in 

the absence of past persecution, an applicant may be entitled to asylum if he 

possesses a well-founded fear of future persecution, which can be satisfied by 

showing membership in a group subject to a pattern or practice of persecution, or

he may eligible for withholding of removal if it is more likely than not that he will 

suffer such persecution. See 8 C.F.R. §§ 208.13(b)(2)(iii), 208.16(b)(2). At the 

very least, the governmental reports and news articles submitted by the petitioners 

suggest that members of non-Russian-Orthodox religious groups, including 

Baptists, may be subject to mistreatment amounting to persecution. The BIA’s and 

IJ’s adverse credibility finding did not relieve them of their duty to meaningfully

consider this documentary evidence and make adequate findings about the 

likelihood of future persecution on account of Aleksandr’s unquestioned religious 

 3 The petitioners do not argue that the past incidents of abuse credited by the IJ, including 

the threatening communications and the battery and three-day detention Aleksandr experienced 

in 1993, are enough to amount to past persecution. As such, they have abandoned any challenge

based solely on these events to the BIA’s and IJ’s finding of a lack of past persecution. See

Sepulveda, 401 F.3d at 1228 n.2. 

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faith. See Forgue, 401 F.3d at 1287; Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 

(11th Cir. 2006) (noting that the BIA and IJ must give “reasoned consideration” to 

an alien’s application and make “adequate findings”). 

Although the IJ generally referred to the documentary materials the 

petitioners submitted, neither he nor the BIA considered whether those materials 

were sufficient to show that Aleksandr has a well-founded fear of future 

persecution, or is likely to suffer such persecution, on account of his religion if 

returned to Russia, particularly in light of the specific incidents of past 

mistreatment that they found credible. Because the BIA and IJ did not adequately 

consider whether the petitioners are eligible for asylum or withholding of removal 

based on the likelihood of future persecution, we grant the Nesterenkos’ petition 

for review, vacate the BIA’s decision, and remand to the BIA for the limited 

purpose of allowing it to make these determinations in the first instance. See

Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1236 (11th Cir. 2007) 

(“[W]hen the IJ or BIA has not made findings of fact or has not applied the law to 

those facts, appellate courts should remand to the allow the IJ to make such 

determinations in the first instance.”).

PETITION GRANTED; VACATED AND REMANDED. 

 

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