FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 27, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-13998 

Non-Argument Calendar

________________________

Agency No. A088-685-712

SITA DEVI THAPA, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(July 27, 2011)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:
Sita Devi Thapa, a citizen of Nepal, came to the United States on a tourist

visa and within a year of her arrival had applied for asylum and withholding of

removal based on her alleged persecution by Nepalese Maoist guerrillas. Thapa

was denied relief and now petitions for review of the Board of Immigration

Appeals’ (BIA’s) decision denying her application for asylum and petition for

withholding of removal under the Immigration and Nationality Act (INA).

On appeal Thapa argues that the BIA erred in affirming the Immigration

Judge’s (IJ’s) adverse-credibility determination, which was the basis for denying

her relief. Thapa also argues that the IJ’s conduct at the hearing denied her due

process. We deny Thapa’s petition in part as well as to her due process argument

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and as to her argument that the BIA’s adverse-credibility finding was not

supported by substantial evidence. But because we conclude that the BIA failed to

consider corroborating evidence and denied relief based solely on its adversecredibility determination, we also grant Thapa’s petition in part and remand. 

I.

 Thapa also argues that the IJ’s determination that she was not entitled to asylum or 1

withholding of removal because she had failed to establish past persecution was not supported by

substantial evidence. But the BIA did not address the IJ’s past-persecution finding in its order,

nor did it adopt the IJ’s finding. Consequently we do not consider Thapa’s argument on this

point. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008).

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Where the BIA issues its own opinion, as is the case here, we review only

that opinion. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir.

2008). In the event that the BIA expressly adopts the IJ’s decision, we will also

review the IJ’s decision to that extent. Id. We review any legal conclusions made

 by the BIA de novo, but we may not reject its factual findings unless they are so

unsupported by evidence that the record compels it. Kazemzadeh v. U.S. Att’y

Gen., 577 F.3d 1341, 1350–51 (11th Cir. 2009). We review constitutional

challenges de novo. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir.

2010).

II.

We first address Thapa’s due-process challenge. In the context of removal

proceedings, due process is satisfied when an alien is given notice and a right to be

heard before her removal. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir.

2009). We have also said that an alien’s removal hearing must be full and fair. 

Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987). 

Thapa argues that the IJ conducted her removal hearing in an unnecessarily

antagonistic and insensitive manner. As a result, Thapa contends, her removal

hearing was turned into a game of “gotcha,” and the IJ’s credibility determination

is itself not credible.

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An IJ may “interrogate, examine, and cross-examine the alien and any

witnesses.” 8 U.S.C. §1229a(b)(1). Most of the questions and comments that

Thapa complains about were instances where the IJ was attempting to get Thapa to

focus her answer or respond to a question. We have approved similar efforts in

judicial context, and we can discern no reason why due process would require that

we disapprove of them here. See Moore v. United States, 598 U.S. 439, 442 (5th

Cir. 1979).2

Thapa also argues that the IJ was sarcastic when he asked her whether her

parents “had been killed yet.” Although in any case the IJ might have phrased the

question somewhat more delicately, in the context of the proceeding it is not clear

that he was being sarcastic. Indeed, Thapa’s testimony leading up to the IJ’s

question was about death threats that had been made to her parents. Accordingly,

we find no due-process violation.

III.

The INA allows the Attorney General to grant asylum to any refugee, that is,

someone who is unable or unwilling to return to his home country “because of

persecution or a well-founded fear of persecution on account of race, religion,

 Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (“[T]he 2

decisions of the United States Court of Appeals for the [former] Fifth Circuit . . . shall be binding

as precedent in the Eleventh Circuit . . . .”).

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nationality, membership in a particular social group, or political opinion.”

8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). Similarly, to qualify for withholding of

removal, an alien must establish that upon return to her home country it is more

likely than not that her life or freedom would be threatened because of her race,

religion, nationality, membership in a particular social group, or political opinion. 

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). If an alien

cannot meet the standard for asylum, she is usually unable to meet the “more

stringent” standard for withholding of removal. Id. at 1232–33. An alien’s own

testimony, if credible, may be by itself enough to establish past persecution. 

Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1217 (11th Cir. 2007). It is, however,

up to the trier of fact to determine whether an alien is credible. 8 U.S.C. § 1158. 

And indeed in some cases, like here, the alien may be found to be incredible.

To overturn an adverse-credibility finding, a petitioner must show that the

BIA’s finding “was not supported by ‘specific, cogent reasons’ or was not based

on substantial evidence.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th

Cir. 2005). Under this test, we “view 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 1286. And, like any other factual finding, a credibility

determination “may not be overturned unless the record compels it.” Id. at 1287. 

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Here the BIA gave specific and cogent reasons for its adverse-credibility

determination by identifying discrepancies between Thapa’s testimony before the

IJ, her application, and her interview with the asylum officer. And those

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discrepancies are more than sufficient evidence to support the BIA’s finding. 

Even though Thapa’s post-traumatic stress disorder could provide a reasonable,

and even plausible, explanation for the discrepancies, it does not compel us to

overturn the BIA’s finding. 

But although we affirm the BIA’s adverse credibility finding, we conclude

that it was not by itself a sufficient basis to deny relief. In the absence of

corroborating evidence, an adverse-credibility finding can be sufficient to deny

relief to an alien, Mohammed, 547 F.3d at 1345, but when an applicant produces

 The REAL ID Act, which applies to Thapa’s claims, provides that: 3

Considering the totality of the circumstances, and all relevant factors, a trier of

fact may base a credibility determination on the demeanor, candor, or

responsiveness of the applicant or witness, the inherent plausibility of the

applicant’s or witness’s account, the consistency between the applicant’s or

witness’s written and oral statements (whenever made and whether or not under

oath, and considering the circumstances under which the statements were made),

the internal consistency of each such statement, the consistency of such statements

with other evidence of record (including the reports of the Department of State on

country conditions), and any inaccuracies or falsehoods in such statements,

without regard to whether an inconsistency, inaccuracy, or falsehood goes to the

heart of the applicant’s claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii). An alien’s later testimony about facts not included in her asylum

application can be considered an inconsistency in her statements. See Mohammed, 547 F.3d at

1345–46; Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255–56 (11th Cir. 2006). 

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corroborating evidence, the BIA must consider it too in deciding whether to grant

relief. Forgue, 401 F.3d at1287.

Here the BIA denied relief based solely on its adverse-credibility finding. 

Had Thapa not provided any corroborating evidence that would have been

sufficient to deny relief. But she did, so it wasn’t. Accordingly, we grant her

petition in part, vacate the BIA’s opinion in part, and remand to the BIA so that it

may consider whether she was entitled to relief in light of her corroborating

evidence despite the BIA’s adverse-credibility determination.

DENIED in part, GRANTED in part, REMANDED.

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