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                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10316
                        Non-Argument Calendar
                      ________________________

                        Agency No. A087-927-876



PEDRO RAFAEL PEREIRA OLIVARES,
MARIA ESTHER QUIROGA GONZALEZ,
ALEJANDRO JOSE PEREIRA QUIROGA,

                                                                     Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (November 22, 2013)

Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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       Pedro Rafael Pereira Olivares, Maria Esther Quiroga Gonzalez, and

Alejandro Jose Pereira Quiroga, (collectively Petitioners), natives and citizens of

Venezuela, petition for review of the Board of Immigration Appeals’ (BIA)

dismissal of their appeal from the Immigration Judge’s (IJ) denial of Olivares’

application for asylum, withholding of removal, and relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT). 1 The IJ determined Olivares was not credible.

The BIA found no clear error in the IJ’s adverse credibility determination and

concluded without credible testimony, Olivares could not satisfy the burden of

proof applicable to asylum or withholding of removal. 2 In his petition, Olivares

argues (1) the BIA and IJ erred by failing to consider his corroborating evidence,

and (2) the adverse credibility determination was not supported by specific, cogent

reasons. After careful review, we grant Olivares’ petition.

                                         I. Standard of Review

       We review the BIA’s decision as the final judgment, except to the extent that

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

, 765

(11th Cir. 2007). We will affirm the BIA’s decision “if it is supported by


       1
           Petitioners’ claims are based on the asylum application of Olivares, the lead petitioner.
       2
         Olivares failed to argue in his initial brief that the IJ or BIA erred in denying his claim
for CAT relief. Accordingly, he has abandoned any claims regarding CAT relief. See Imelda v.
U.S. Att’y Gen., 

, 727 (11th Cir. 2010) (holding the petitioner abandoned her CAT
claim when she failed to raise it in her initial appellate brief).
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reasonable, substantial, and probative evidence on the record considered as a

whole.” 

The BIA’s factual findings are reviewed “under

the highly deferential substantial evidence test,” where we view the evidence in the

light most favorable to the BIA’s decision and draw all reasonable inferences in

favor of that decision. Adefemi v. Ashcroft, 

, 1026-27 (11th Cir.

2004). Credibility determinations, like any other fact finding, can only be

overturned if the record compels it. Forgue v. U.S. Att’y Gen., 

,

1287 (11th Cir. 2005).

                                       II. Discussion

      The Secretary of Homeland Security or the Attorney General may grant

asylum to an alien who is determined to be a “refugee.” 8 U.S.C. § 1158(b)(1)(A).

The applicant bears the burden of establishing that he is statutorily eligible for

asylum. 8 U.S.C. § 1158(b)(1)(B)(i). To satisfy this burden, an alien must

establish he is unable or unwilling to return to his native 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). To qualify for withholding of removal, an alien must

demonstrate that, if removed to his country, his “life or freedom would be

threatened” on account of his “race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3).


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      An adverse credibility determination, standing alone, may be sufficient to

deny an asylum application where the applicant produces no corroborating

evidence. 

. However, if an applicant produces evidence,

the IJ must consider that evidence, and cannot rely solely on the adverse credibility

determination. 

adverse credibility determination is made, the burden

shifts to the applicant to show that the IJ’s decision “was not supported by

‘specific, cogent reasons’ or was not based on substantial evidence.” 

REAL ID Act of 2005, credibility determinations are based upon

the totality of the circumstances:

      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).

      As an initial matter, the BIA rested the denial of Olivares’ application for

asylum and withholding of removal on the adverse credibility determination.

Olivares presented medical reports, photographs, and other documentary evidence


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that supported his testimony, yet the BIA failed to consider this corroborating

evidence.3 Because “an adverse credibility determination does not alleviate the

IJ’s duty to consider other evidence produced by an asylum applicant,” see 

, the failure to consider Olivares’ corroborating evidence was

error.

         The BIA concluded the IJ’s adverse credibility determination was supported

by the following inconsistencies: (1) Olivares never told the asylum officer or

stated in his asylum application that the first threats made against him occurred in

November 2008; (2) Olivares testified before the IJ and told the asylum officer that

he was cut on his back with an unknown object, but his application stated he was

cut with a knife; (3) Olivares testified that his troubles became serious in February

2009, but, in his asylum interview, he stated that his problems began in May 2009;

and (4) Olivares did not mention the May 2009 smoke bomb during his testimony.

         As to the first three perceived inconsistencies, “no reasonable fact-finder

could conclude on this record that they were inconsistencies.” Kueviakoe v. U.S.

Att’y Gen., 

, 1305 (11th Cir. 2009). First, the record contradicts the

BIA’s finding that Olivares never told the asylum officer or mentioned in his

asylum application that the first threats against him came in November 2008 while
3
  The Government contends Olivares did not argue to the BIA that the IJ erred by failing to
consider all of the evidence presented. However, in his brief to the BIA, Olivares discussed the
evidence presented and argued that the IJ’s finding that no members of his family had been
injured to the point of requiring medical attention was contradicted by the photographic evidence
and medical records he submitted.
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serving as a fraud watchdog during the elections. When the asylum officer asked

Olivares when he began having problems, Olivares started to discuss 2006, but the

officer interrupted him, stating “Let’s talk about more recent events,” and

specifically asking “[w]hen problems in 2009 beg[a]n.” Thus, the asylum officer

expressly diverted Olivares from discussing pre-2009 events. Moreover, in his

asylum application, Olivares stated he had worked in the electoral polls during

elections in 2006, 2007, 2008, and 2009, and that “[d]ue to these political

activities, I got in trouble with Chavistas from PSUV.”

      Second, the inconsistency between the use of the word “knife” on Olivares’

application, and the interview statement and testimony that he was cut with a sharp

object, is immaterial. In Kueviakoe, we concluded that the inconsistency between

the use of the word “car” in the petitioner’s testimony and the use of the word

“truck” in the petitioner’s written testimony was inconsequential when the

petitioner’s words were translated from another language and, more significantly,

when all of the other pertinent information about petitioner’s story remained the

same. 

Likewise, Olivares’ words had been translated from Spanish

by his son, and all of the other pertinent information about the incident remained

the same: Olivares’ application stated that on June 1, 2009, Chavistas came to his

factory on motorcycles and attacked him, and cut him in the back before he

escaped to his office on the second floor; Olivares told the asylum officer that on


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June 1, 2009, Chavistas came to his factory on motorcycles and fought with him,

one of the men cut him on his back with an unknown object, and Olivares ran to

his office on the second floor; and Olivares testified before the IJ that on June 1,

2009, Chavistas came to his factory on motorcycles, beat him up, and hit him on

his back with an object before he ran to his office on the second floor. Like in

Kueviaoke, “a reading of the record compels the conclusion that [the] difference in

terminology is wholly immaterial.” 

      The BIA’s rationale for the third perceived inconsistency is likewise

unconvincing. The BIA found that Olivares was not credible because he told the

asylum officer that his problems began in May 2009, but he testified that his

troubles became serious in February 2009. Although Olivares recalled the 2009

events out of chronological order with the asylum officer, he described the

February 2009 incident to the asylum officer. Thus, contrary to the BIA’s

characterization, Olivares consistently stated that he received harassing phone calls

in January 2009, was attacked and had the electoral cards destroyed in February

2009, and was approached by Chavistas in May 2009.

      Olivares concedes that the record supports the BIA’s final stated

inconsistency—that Olivares failed to mention in his testimony that his attackers

threw a smoke bomb at him during the May 2009 incident. Because the BIA’s

credibility finding is only supported by the smoke bomb omission and the BIA


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failed to consider Olivares’ corroborating evidence, we grant Olivares’ petition and

remand to the BIA to enable it to reevaluate its decision in light of this opinion and

in light of the corroborating evidence. See Tang v. U.S. Att’y Gen., 

,

1280-81 (11th Cir. 2009) (rejecting two of the BIA’s credibility determinations,

finding that two other credibility determinations were “not as easily rejected,” and

remanding “to the BIA to enable the BIA or IJ to reevaluate its decision . . . and its

credibility determinations in light of this opinion and in light of the medical

records”); see also 

.

      PETITION GRANTED.




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