Case: 14-15305    Date Filed: 08/07/2015   Page: 1 of 6


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-15305
                            Non-Argument Calendar
                          ________________________

                           Agency No. A094-908-913

JOSEPH IFEANYICHUKWU MICHAEL ENE,
AUGUSTINA CHIAWUOTU ENE,

                                                                         Petitioners,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                 (August 7, 2015)

Before MARCUS, JULIE CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

      Petitioners, Joseph Ifeanyichukwu Michael Ene (“Ene”), and his wife

Augustina Ene, citizens of Nigeria, petition for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing their appeal from the Immigration Judge’s
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(“IJ”) denial of Ene’s application for asylum pursuant to the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1158(a), withholding of removal under 8

U.S.C. § 1231(b)(3), and withholding of removal under the United Nations

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

Punishment (“CAT”), 8 C.F.R. § 208.16(c), on account of persecution based on

political opinion and religious beliefs. In his petition, Ene argues that he is not

removable, and with regard to his asylum application, that the BIA and the IJ erred

in: (1) making an adverse credibility determination; (2) considering the fraud

allegations made during his removability hearing; and (3) applying the REAL ID

Act in his case, because it only applies to terrorists and he is not a terrorist. After

thorough review, we deny the petition.

      We review the BIA’s decision as the final judgment, unless the BIA

expressly adopted the IJ’s decision. Ruiz v. Gonzales, 

, 765 (11th

Cir. 2007). When the BIA expressly agrees with the IJ’s reasoning, we review

both decisions to the extent of the agreement. Ayala v. U.S. Att’y Gen., 

, 947-48 (11th Cir. 2010). We review de novo legal issues presented in a

petition for review. 

We review factual determinations, including

credibility determinations, under the substantial evidence test. Ruiz v. U.S. Att’y

Gen., 

, 1254-55 (11th Cir. 2006). Under this standard, “we review

the record evidence in the light most favorable to the agency’s decision and draw


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all reasonable inferences in favor of that decision.”       

(quotation

omitted). “[W]e must affirm the [] decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” 

(quotation omitted). Thus, in order to reverse a finding of fact, we must

determine that the record not only supports reversal but compels it. 

.

      The Attorney General has discretion to grant asylum to any alien determined

to be a refugee under the INA. 8 U.S.C. § 1158(b)(1). A refugee is defined as:

      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).

      An applicant seeking withholding of removal must show that his “life or

freedom would be threatened [on removal to a given country] because of the

alien’s race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The [applicant] bears the burden of

demonstrating that it is ‘more likely than not’ [he] will be persecuted or tortured

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

, 1232 (11th Cir. 2005). To obtain CAT relief, an applicant must demonstrate

that “it is more likely than not” that a government official or person acting in an




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official capacity would torture him or aid or acquiesce in his torture by others. Al

Najjar v. Ashcroft, 

, 1303 (11th Cir. 2001).

      The applicant bears the burden of establishing eligibility for relief by

offering “credible, direct, and specific evidence in the record.” Forgue v. U.S.

Att’y Gen., 

, 1287 (11th Cir. 2005). An applicant’s testimony may

be sufficient, without corroboration, to sustain his burden of proof, but only if the

trier of fact finds that the testimony “is credible, is persuasive, and refers to

specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C. §

1158(b)(1)(B)(ii). Conversely, a denial of relief “can be supported solely by an

adverse credibility determination, especially if the [applicant] fails to produce

corroborating evidence.” Chen v. U.S. Att’y Gen., 

, 1231 (11th Cir.

2006). If the IJ finds an applicant not credible, the IJ must make an explicit

adverse credibility finding and offer “specific, cogent reasons for the finding.” 

ID Act applies to “applications for asylum, withholding, or other

relief from removal made on or after” May 11, 2005. REAL ID Act, Pub.L.No.

109-13, § 101(h)(2), 119 Stat. 231, 305 (2005). Under the INA, as amended by the

REAL ID Act, a credibility determination may be based on the totality of the

circumstances, including: (1) the demeanor, candor, and responsiveness of the

applicant; (2) the plausibility of the applicant’s account; (3) the consistency

between the applicant’s written application and the applicant’s oral testimony; (4)


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the internal consistency of each statement; and (5) the consistency of the

applicant’s statements with other record evidence, including country reports. 8

U.S.C. § 1158(b)(1)(B)(iii). Additionally, an adverse credibility determination

may be based on inconsistencies, inaccuracies, or falsehoods regardless of whether

they go to the heart of the applicant’s claim. 

we lack jurisdiction to address Ene’s argument that he is not

removable, since he failed to exhaust this issue before the BIA. See Amaya-

Artunduaga v. U.S. Att’y Gen., 

, 1250-51 (11th Cir. 2006) (holding

that we lack jurisdiction to consider a claim raised in a petition for review unless

the petitioner has exhausted his administrative remedies by raising the claim before

the BIA). As for Ene’s claim that the REAL ID Act should not have been applied

to his application, it is without merit, because the REAL ID Act applies to all

applications for asylum or withholding of removal filed after May 11, 2005. See

REAL ID Act, Pub.L.No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005).

         We also reject Ene’s arguments that the IJ and BIA erred in concluding that

he was incredible and that there was a lack of corroborating evidence. As the

record     reveals,   substantial    evidence    supports    the   adverse   credibility

determinations. The BIA properly noted that there were inconsistencies between

Ene’s testimony regarding the 2004 attack and the medical report he submitted in

support of his claim, which indicated that his injuries were the result of a fall when


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a banister he was leaning on collapsed as opposed to an attack. This inconsistency

was material to Ene’s claim that he suffered past persecution, and provided a

“specific, cogent reason” for the adverse credibility finding. The BIA also noted

that Ene’s credibility was undermined by his fraudulent actions in obtaining the

visa and in attempting to alter his Social Security Card, considerations which the IJ

and BIA were permitted to rely on, although they stemmed from the underlying

removal proceedings. See 8 U.S.C. § 1158(b)(1)(B)(iii). Additionally, the BIA

observed that Ene’s testimony was often rambling and difficult to follow, which

related to his demeanor and was a proper consideration.           

result,

substantial evidence supports the adverse credibility determination and the record

does not compel reversal. Moreover, because Ene failed to provide sufficient

corroborating evidence, his application could be denied solely on the adverse

credibility determination. 

. Thus, the BIA did not err in

affirming the IJ’s denial of Ene’s application for asylum, withholding of removal,

and CAT relief.

      PETITION DENIED.




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