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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10097
                        Non-Argument Calendar
                      ________________________

                        Agency No. A200-567-680



PIERRE JUDE RICHARD,
STEPHANIE RICHARD ABNER,
SASKYA LEILA RICHARD,

                                                                      Petitioners,
                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                      ________________________

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

                            (November 12, 2015)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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       Petitioner Pierre Jude Richard is a native and citizen of Haiti. An

Immigration Judge (“IJ”) denied his application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”) because he

found Richard’s testimony in support of his application not credible.1 The IJ

alternatively concluded, as to asylum and withholding of removal, that Richard did

not meet the standards for relief because he failed to establish that he was

persecuted on the basis of a protected characteristic or that he attempted to relocate

within Haiti to avoid his alleged persecution, and further that Richard did not meet

his burden as to CAT relief.

       Richard appealed the IJ’s decision to the Board of Immigration Appeals

(“BIA”) and challenged the adverse-credibility finding and the IJ’s alternative

reasons for denying him relief. The BIA adopted the IJ’s adverse-credibility

finding and dismissed Richard’s appeal, concluding that since Richard had not

provided credible or other evidence that he suffered past persecution or torture, or

that it was more likely than not that his life or freedom would be threatened if

returned to Haiti, he was not eligible for relief. The BIA expressly declined to

review the IJ’s alternative grounds for denying Richard relief.



       1
          Petitioner Stephania Richard Abner is Richard’s wife. She and their daughter,
petitioner Saskya Leila Richard, are derivatives on Richard’s application for asylum, withholding
of removal and CAT relief.


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       Richard now petitions this Court to review the BIA’s decision, arguing that

the record compels the reversal of its adverse-credibility finding.2 We review that

credibility finding, like other findings of fact, under “the highly deferential

substantial evidence test.” Adefemi v. Ashcroft, 

, 1026-27 (11th Cir.

2001) (en banc). Under that standard, we “must affirm the [BIA’s] decision if it is

reasonable, substantial, and probative evidence on the record considered as a

whole.” Al Najjar v. Ashcroft, 

, 1284 (11th Cir. 2001) (internal

quotation marks omitted). In the review at hand, our task is to determine whether

the record “compels” the reversal of the BIA’s and IJ’s adverse-credibility finding.

Ruiz v. U.S. Att’y Gen., 

, 1255 (11th Cir. 2006).

       An applicant for asylum must meet the Immigration and Nationality Act’s

[INA’s] definition of a refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The

definition of “refugee” includes:

     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.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Thus, in order to meet the

definition of a refugee, the applicant must, “with specific and credible evidence,
       2
          “When the [BIA] issues a decision, [we] review only that decision.” Chacon-Botero v.
U.S. Att’y Gen., 

, 956 (11th Cir. 2005). Where, as here, the BIA explicitly agrees
with particular findings of the IJ, we review both the BIA’s and the IJ’s conclusions regarding
such findings. Ayala v. U.S. Att’y Gen., 

, 948 (11th Cir. 2010).
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demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a

well-founded fear that the statutorily listed factor will cause future persecution.”

(quotation marks omitted).

      In order to support a claim for withholding of removal, an applicant must

show that it is more likely than not that he would be persecuted or tortured on his

return to the country in question. 8 C.F.R. § 208.16(b)(2). Similarly, to support a

claim for CAT relief, an applicant must show that it is more likely than not that he

will be tortured if returned to his home country. D-Muhumed v. U.S. Att’y Gen.,

, 819 (11th Cir. 2004).

      An applicant’s testimony, if credible, may be sufficient to sustain his burden

of proof, without corroborating evidence. 

. Conversely, if

the applicant relies solely on his testimony, an adverse-credibility finding may

alone be sufficient to support the denial of an application. Forgue v. U.S. Att’y

Gen., 

, 1287 (11th Cir. 2005). “If, however, the 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.” 

IJ makes an adverse-credibility

finding, the applicant must demonstrate that the decision was not supported by

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

.


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       Pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13 § 101, 119 Stat.

302, for applications filed after May 11, 2005, a credibility finding 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 and oral statements; (4) the

internal consistency of each statement; and (5) the consistency of the applicant’s

statements with other record evidence, including country reports. INA

§ 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, an adverse-credibility

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

whether they relate to the heart of an applicant’s claim. 

inconsistency and one omission may justify an adverse-credibility

finding where the applicant did not provide corroborating evidence that would

have rebutted the inconsistency and omission. See Xia v. U.S. Att’y Gen., 

, 1240-41 (11th Cir. 2012) (holding that an adverse-credibility finding was

supported where the applicant’s testimony “included at least on internal

inconsistency (how old she was when she had the abortion) and one omission

(identifying data on the abortion operations certificate)” and thus the record

provided “ample support for the IJ’s specifically stated finding that Xia’s

testimony regarding the critical events at issue was not credible”). However,

minor perceived inconsistencies and omissions may be insufficient to support an


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adverse-credibility finding. See Kueviakoe v. U.S. Att’y Gen., 

,

1305-06 (11th Cir. 2009). In Kueviakoe, we concluded that three perceived

inconsistencies, including the use of the word “car” during testimony and the use

of the word “truck” in the written statement, were insufficient to support an

adverse credibility 

. We noted that, in both the testimony

and written application, the words were translated from French, which suggested

that the applicant was not the person making the word choice. 

pertinent information remained the same, as the applicant repeatedly asserted that

he was dragged to a car and that ten other people were with him in the vehicle. 

determined that the record compelled the conclusion that this

inconsistency was immaterial. 

inconsistencies cited by the BIA were

based on a misreading of the record and were therefore illusory. 

      In this case, the record compels reversal of the adverse-credibility finding.

See 

. First, although the IJ noted that Richard provided no

letter from the Haitian National Police stating he was the sole witness against gang

leader Evans Jeune, Richard provided a news article that confirmed that fact.

Second, the IJ relied on the fact that Richard’s testimony omitted the names of

certain family and associates of Jeune whom he said he feared in his asylum

application; however, Richard generally described those persons at the hearing and

was never asked their names. Third, although Richard inconsistently testified that


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an injury he suffered was to his knee and later to his foot, his application stated it

was to his leg under his knee, and this inconsistency is insufficient in light of the

record as a whole, which shows Richard testified consistently on other points and

provided corroboration for many of the critical aspects of his claim, notably that he

was the sole witness to testify against the captured gang leader. Accordingly, we

vacate the BIA’s decision.

      Because the BIA declined to reach Richard’s alternative arguments

concerning his eligibility for asylum, withholding of removal, and CAT relief, we

remand to the BIA to consider in the first instance whether–when viewing Richard

as a credible witness–the IJ’s denial of relief was proper. See Calle v. U.S. Att’y

Gen., 

, 1329-30 (11th Cir. 2007).

      PETITION GRANTED; VACATED AND REMANDED.




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