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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 14-13124
                         Non-Argument Calendar
                       ________________________

                        Agency No. A087-309-222


OLUWA GBENGA ROTIMI AWOLEYE,


                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,


                                                                     Respondent.

                       ________________________

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


                              (May 22, 2015)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Oluwagbenga Awoleye, a native and citizen of Nigeria, seeks review of the

Board of Immigration Appeals’s (“BIA”) final order affirming the Immigration

Judge’s (“IJ”) denial of his applications for asylum and withholding of removal

under the Immigration and Nationality Act (“INA”), and relief under the United

Nations Convention Against Torture (“CAT”). On appeal, Awoleye argues: (1)

that the BIA improperly affirmed the discretionary denial of his asylum claim

based on Awoleye’s 2013 conviction for marriage fraud; and (2) that substantial

evidence does not support the BIA’s denial of his requests for asylum, withholding

of removal, and CAT relief. After review, we deny the petition for review.

                           I. BACKGROUND FACTS

A.    Initiation of Removal Proceedings

      Awoleye first entered the United States on a student visa in 2003 or 2004.

Awoleye was a track and field athlete who attended several universities in the

United States on athletic scholarships. He was also invited to participate in the

2008 Olympic trials, and was a member of the Nigerian Olympic team in the 2008

Olympics in Beijing.

      Awoleye was last paroled into the United States in August 2008. Awoleye’s

most recent immigrant status expired on August 10, 2009.

      On September 15, 2009, the Department of Homeland Security issued

Awoleye a Notice to Appear (“NTA”). The NTA charged that Awoleye had not


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been granted or adjusted to any status that would allow him to remain in the United

States and that he was removable under INA § 212(a)(7)(A)(i)(I), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) because he was an immigrant who was not in possession of a

valid unexpired visa, reentry permit, border crossing card, or other valid entry

document, and a valid unexpired passport, other suitable travel document, or

document of identity and nationality. At a preliminary hearing in May 2010,

Awoleye admitted the allegations in the NTA and conceded that he was removable

as charged.

B.    Asylum Application

      In October 2010, Awoleye filed an application for asylum, withholding of

removal, and relief under CAT. Awoleye’s asylum application claimed that he and

his family had been threatened with death by the Northern Nigerian Islamic

Fundamentalist Group (“NNIFG”) because his father, a Christian minister, refused

to stop preaching in Jos, Plateau State, Nigeria.

      Awoleye has seven siblings, four sisters—Oluwafunmilayo, Oluwatofunmi,

Oluwabosede, and Oluwasun—and three brothers—Oluwashola, Oluwafemi, and

Oluwatosin. According to Awoleye’s asylum application and supporting

documents: (1) beginning in December 2009, the NNIFG sent his father

threatening letters, threatened to “wipe out” Awoleye’s entire family, and burned

down his father’s church and home; (2) sometime prior to the 2009 threatening


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letters, his mother survived an attack by unknown men who shot her three times;

(3) his uncle survived a separate attack by unknown assailants; (4) the NNIFG

killed two of Awoleye’s siblings on April 24, 2010 and two other siblings on June

28, 2010; (5) a third brother was missing since July 4, 2010; (6) the rest of

Awoleye’s family was in hiding in Nigeria; and (7) Awoleye’s father warned him

in June 2010 not to return to Nigeria to attend a track and field event because the

NNIFG had threatened to hunt Awoleye down during the competition.

C.     April 2011 Removal Hearing

       On the day of the April 2011 merits hearing, Awoleye filed an updated

asylum application that amended his earlier application, in relevant part, to state

that his mother “was gun shot and survived.”

       At the merits hearing, the IJ heard testimony from Awoleye. While

testifying, Awoleye named different siblings who were killed by the NNIFG, and

stated that the asylum application had mixed up the siblings’ names. 1 woleye also

stated that his mother was shot with an arrow. When the IJ questioned Awoleye

about these discrepancies, Awoleye’s attorney stated that they were her fault. Her

firm had confused the siblings’ names on the application, and she had assumed that


       1
        Awoleye’s asylum application and one portion of his attached affidavit stated that
Oluwafemi (a brother) and Oluwafunmilayo (a sister) were killed on April 24, 2010, and
Oluwashola (a brother) and Oluwatofunmi (a sister) were killed on June 28, 2010. In another
portion of his affidavit, as well as at the hearing, Awoleye testified that Oluwafunmilayo and
Oluwatofuni (the two sisters) were killed on April 24, 2010 and that Oluwashola and Oluwafemi
(the two brothers) were killed on June 28, 2010.
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when Awoleye said his mother had been shot, he meant shot with a gun, and had

revised the application that morning at her office.

       Finding that Awoleye had failed to carry his burden to present credible and

consistent testimony, the IJ denied all requested relief. In discrediting Awoleye’s

testimony, the IJ identified a number of discrepancies between Awoleye’s

testimony and his asylum application. For example, Awoleye’s asylum application

stated the NNIFG had forced Awoleye to renounce his own belief in Christianity,

whereas he testified at the hearing that the NNIFG wanted his father to stop

preaching Christianity; and his amended asylum application said his mother was

shot with a gun, but Awoleye testified she was shot with an arrow. The IJ also

identified implausibilities in Awoleye’s story and the lack of eyewitness statements

or other corroborating evidence establishing that the NNIFG was responsible for

his siblings’ deaths.

       Alternatively, the IJ concluded that Awoleye was not entitled to asylum on

the merits because he had not established a well-founded fear of future

persecution.2 Because Awoleye had not met the lower burden of proof for asylum,

the IJ concluded that Awoleye also was ineligible for withholding of removal.

Finally, the IJ determined that Awoleye had not shown that Nigerian officials

       2
         The IJ also concluded that Awoleye’s asylum application was untimely, but the BIA
never adopted or affirmed this finding, and we do not address it. See Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001) (stating that we review the BIA’s decision “except to the extent
it expressly adopts the IJ’s opinion”).
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would seek to harm him or acquiesce in the NNIFG’s attempts to harm him, and

thus Awoleye was not entitled to CAT relief.

D.    BIA Appeal and Remand

      On appeal to the BIA, Awoleye argued, inter alia, that he had not received

good counsel and that the inconsistencies between his asylum application and his

hearing testimony occurred because Awoleye’s attorney revised his asylum

application on the morning of the removal hearing without Awoleye’s knowledge.

Awoleye submitted additional evidence, including, among other things: (1) two

February 2011 newspaper articles indicating that, in addition to the NNIFG killing

his four siblings, his mother and father were found dead along a road in Jos on

January 31, 2011, after receiving threats from the NNIFG and (2) articles

describing violence taking place in Northern Nigeria, including near Jos, and the

radical Islamic group Boko Haram.

      In April 2013, the BIA sustained Awoleye’s appeal and remanded for further

proceedings. The BIA, after noting the IJ’s credibility finding and summarizing

the evidence, stated that Awoleye’s ineffective counsel claims essentially

constituted a request for a remand. The BIA noted that the IJ’s credibility

determination was primarily based on inconsistencies between Awoleye’s

testimony and his application that may have been due to counsel’s failure to review

the application with Awoleye.


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       Given that the IJ’s adverse credibility finding in turn supported the IJ’s

finding that Awoleye had not otherwise met his burden of proof, the BIA

concluded that a remand was necessary for further development of the record and a

new credibility determination. The BIA noted the articles documenting the deaths

of Awoleye’s parents and attributing the deaths to the NNIFG, but declined to

address Awoleye’s extensive new documentation or any of the remaining bases for

the IJ’s decision. Instead, the BIA remanded for the IJ to enter a new decision

considering: (1) whether the record contained sufficient evidence establishing a

substantial likelihood of future harm for purposes of asylum, withholding of

removal, and CAT relief; and (2) whether internal relocation was reasonable.

E.     Awoleye’s March 2013 Marriage Fraud Conviction

       Prior to the second removal hearing, the parties submitted numerous

documents, including a criminal judgment indicating that, in March 2013, Awoleye

pled guilty to marriage fraud, in violation of 8 U.S.C. § 1325(c).3 Awoleye’s

conviction was based on statements of his ex-wife, Donna Kemp, a U.S. citizen,

who had filed an I-130 petition for Awoleye that was denied in 2008. Kemp told

federal investigators that she married Awoleye after he promised her money from

his Olympic winnings. The factual resume, issued in conjunction with Awoleye’s

       3
        In his written plea agreement, Awoleye recognized that his guilty plea might “have
consequences with respect to immigration status,” and affirmed he wanted to plead guilty
“regardless of any immigration consequences . . . even if the consequence is his automatic
removal from the United States.”
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written plea agreement, stated that: (1) Awoleye married a Nigerian citizen,

Florence Nna, in January 2005, while both he and Nna were in the U.S. on student

visas; (2) in July 2006, while still married to Nna, Awoleye entered into a sham

marriage with Kemp to fraudulently obtain lawful permanent resident status; (3)

during the entirety of the marriage to Kemp, Awoleye lived with Nna; and (4) at

Awoleye’s direction, Kemp filed an I-130 petition that falsely indicated that Kemp

lived with Awoleye.

F.    September 2013 Removal Hearing

      At the second removal hearing in September 2013, Awoleye, now appearing

pro se, testified that he married Nna, a lawful permanent resident of the United

States, in the summer of 2011 and that they had four children together.

      According to Awoleye, his parents were killed in Nigeria, and a newspaper

article tied their deaths to the NNIFG, but Awoleye did not know personally how

they had died. Awoleye had four deceased siblings, and, according to a newspaper

article he provided to the IJ, they also were killed by the NNIFG in two separate

incidents in April and June of 2010.

      The IJ asked Awoleye to spell the names of his siblings who had been killed,

and Awoleye identified them as “Oluwafunmilayo Awoleye,” “Abosede

Awoleye,” “Oluwashole Awoleye,” and “Oluwasin Awoleye.” Awoleye could not

remember the ages of his deceased siblings or whether his siblings were older or


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younger than him. He stated he was a middle child and explained that he did not

know whether he was younger or older because “[w]e don’t celebrate the birthday

like, like people do.” When the IJ asked him which siblings went to school first,

Awoleye stated that he used to remember this information but a lot of things had

happened since Awoleye came to the United States.

      The IJ examined Awoleye’s documents regarding the deaths of his siblings

and asked Awoleye if his sister Oluwabosede (or “Abosede”) had been killed.

Awoleye responded that Oluwabosede had not been killed. He said that

Oluwafunmilayo and Oluwashola had been killed. The IJ asked if Oluwatosin had

been killed. Awoleye responded, “That was one I was missing from the, from the

beginning, Your Honor.” Awoleye stated that two of the siblings who were killed

were Oluwafunmilayo and Oluwafemi. The two males that were killed were

Oluwashola and Oluwafemi. The IJ asked if Awoleye understood that these names

were different than the names he had just provided during his testimony, and

Awoleye responded that he was tired and was “just trying to wake up,” as he had

been sitting at a computer “[o]utside at the gate here” the previous night.

      Awoleye stated that he was never harmed in Nigeria, and he last came back

to the United States from Nigeria in August 2008. Awoleye filed his asylum

application in 2010, after he called his father, who told him of his family’s recent

difficulties in Nigeria and advised him not to return. Awoleye initially stated that


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his father told him a “[c]ouple of weeks” before a Nigerian track and field event set

for mid-to-late June that if he returned to Nigeria for the event he might be killed.

Awoleye and the IJ then engaged in an extended discussion to try to determine

precisely when this telephone call took place. Awoleye repeatedly stated he could

not remember the precise date, but when the IJ pressed him and asked for his “best

estimate,” Awoleye said the call occurred sometime in mid-May.

      Awoleye said that his father told him that he was attacked by Muslims for

preaching in the Christian community in Jos. Awoleye explained that while Jos is

majority Christian, it lies in the northern part of Nigeria, which is predominantly

Muslim. Awoleye said that although the attacks occurred in northern Nigeria, the

problems were beginning to spread to southern Nigeria.

      Awoleye explained that in the first phone call, his father said only that he

was having problems with Muslim extremists. Later, when Awoleye told his

father he needed to return to Nigeria to make money at the track event, his father

told him that his two sisters had been killed and that the extremists had found out

Awoleye would be returning home because his name was in the newspaper.

      The IJ asked Awoleye why, if the extremists wanted Awoleye’s father to

stop preaching, they were interested in Awoleye. Awoleye responded that four

children were already lost and that the extremists indicated in a letter that he was

next in line. The IJ asked Awoleye why the NNIFG killed Awoleye’s siblings


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after saying that they would kill his father. Awoleye responded that the violence

against his family was retaliation because his father would not stop preaching.

Awoleye admitted he had never personally been contacted by the NNIFG.

      Awoleye last spoke to his father in October 2010. At that time, Awoleye’s

father said he would send documents to Awoleye about the attacks. In 2011,

Awoleye learned about his father’s death through a Nigerian friend who had seen

the newspaper article that Awoleye had provided to the IJ. Awoleye said his

parents were killed at the same time, but agreed he did not know anything about

their killings other than what he had read in the newspaper. Awoleye continued to

believe that someone would harm him if he returned to Nigeria. The IJ noted that

Awoleye’s father was no longer preaching and asked why the NNIFG would still

be interested in Awoleye. Awoleye indicated he was afraid because he had been

identified as a target in one of the NNIFG’s letters.

      With respect to the earlier attack on his mother, Awoleye testified that, in

2010, she was “dragged out” and the attackers shot her “when the fire burn[ed]

out.” Awoleye’s father told him that the attackers shot his mother with a bow and

arrow.

      When the IJ asked Awoleye about inconsistencies in his asylum application,

Awoleye responded that his previous attorney had typed his application, and he

had merely signed the statement afterward. Awoleye said that he did not see the


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application until he got to court. The IJ noted that Awoleye had signed his

application on October 1, 2010, before the first removal hearing, which was

inconsistent with Awoleye’s current testimony. Awoleye said that he wrote the

statement down for his attorneys, who typed up the statement and sent him only the

last page to sign. Later, however, Awoleye admitted he received the entire asylum

application from his lawyers, but his lawyers told him he only needed to print and

sign the last page, and he did not look at the entire document before signing it.

      The IJ also asked Awoleye about his marriage fraud conviction. Awoleye

testified that he had pled guilty to marriage fraud in 2012, but insisted he was not

guilty and had pled guilty because he was in deportation proceedings and was

afraid that he would never get to see his children again. Awoleye stated that his

marriage to Kemp was legitimate, but he was living with and had children with his

present wife during the marriage to Kemp.

      With respect to his ability to relocate in Nigeria, Awoleye said he did not

know if anything had happened to his remaining siblings who still lived in Nigeria.

Awoleye stated he could not move to southern Nigeria because he did not know

any of his extended family. He did not think that it was safe for him to return even

to southern Nigeria because the government was unable to curb the ongoing

violence.




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G.    IJ’s Decision

      The IJ denied Awoleye’s application, again finding that Awoleye had not

met his burden of presenting credible and consistent testimony and documents in

support. The IJ stressed Awoleye’s inconsistent hearing testimony about which

siblings were killed and Awoleye’s inability to state whether he was older or

younger than his siblings. [Id.] The IJ indicated that he had observed Awoleye’s

demeanor and listened to Awoleye’s explanations for discrepancies and had the

“distinct impression” that Awoleye “was not being accurate or truthful . . . .”

      The IJ further found that the discrepancies between Awoleye’s application

and his testimony more likely were caused by Awoleye’s changed testimony than

by ineffective assistance of counsel. The IJ noted that Awoleye testified he had

signed his sworn asylum statement the day of his first removal hearing, but the date

on the statement indicated he had in fact signed it on a prior date. When

confronted with this evidence, Awoleye first changed his testimony to say that he

had been sent only the last page to sign, and then testified that he had been sent the

entire application, but had signed the last page without reading it. Thus, the IJ

gave little credence to Awoleye’s claim that he had not read the entire application.

      Overall, the IJ found the record was “replete with inconsistencies.” The IJ

cited as examples Awoleye’s application, which stated Awoleye’s mother was

shot, while Awoleye testified she was attacked with a bow and arrows, and


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Awoleye’s initial statement, which listed two sisters alive in Nigeria, when

Awoleye testified that he did not know his sisters’ whereabouts. Although

Awoleye attempted to “explain away” inconsistencies by saying he was tired or

blaming the problem on his attorney, the IJ found that Awoleye was “not being

candid with the Court” and his explanations were unconvincing Additionally,

Awoleye’s conviction for marriage fraud raised serious issues as to his credibility.

The IJ denied all of Awoleye’s applications for relief because he had failed to

present a credible and consistent account of his claim.

      Alternatively, the IJ stated that he would deny Awoleye’s future persecution

claim on the merits. The IJ found that Awoleye’s claim was based on his family

relationship, rather than on anything Awoleye had done. That is, the Islamic

extremists in Nigeria had targeted Awoleye because his father would not stop

preaching. Nothing in the record suggested that the extremists had any continuing

interest in Awoleye now that his father was no longer preaching. Awoleye had not

had contact with the extremists, and there was no indication that his remaining

siblings in Nigeria had come to any harm or that there were any more threats after

their father’s death in 2011. The IJ also noted that Awoleye had not shown that he

could not live in the southern part of Nigeria without being exposed to the harm he

feared.




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      Because Awoleye had not met the lower burden of proof with respect to

asylum, the IJ also denied Awoleye’s application for withholding of removal on

the merits. The IJ further denied CAT relief because Awoleye failed to establish

that anyone associated with the government or acting with the government’s

acquiescence or consent would seek to torture him. Finally, the IJ explained that

Awoleye’s marriage fraud conviction demonstrated that he did not deserve the

favorable exercise of discretion. Thus, to the extent Awoleye was otherwise

eligible for asylum, the IJ alternatively denied his asylum request as a matter of

discretion.

H.    BIA Appeal

      Awoleye appealed to the BIA, challenging the IJ’s credibility finding and

merits rulings. Awoleye also argued that the IJ was biased against him and had not

given proper consideration to his new evidence on remand. With respect to the

discretionary denial of asylum, Awoleye contended that he had pled guilty on the

bad advice of his defense attorney, who should have moved to dismiss the

indictment based on the statute of limitations.

      The BIA affirmed the IJ’s denial of Awoleye’s applications. In relevant

part, the BIA noted the IJ’s explicit credibility finding against Awoleye based on:

(1) inconsistencies regarding which of Awoleye’s siblings were killed in Nigeria;

(2) changes in Awoleye’s testimony regarding when he had signed and reviewed


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his asylum application; and (3) inconsistencies surrounding Awoleye’s testimony

about when he learned that his siblings were killed.

      The BIA concluded that the IJ’s credibility finding was not clearly

erroneous. The BIA highlighted that Awoleye’s asylum application identified his

deceased siblings as Oluwafunmilayo, Oluwatofunmi, Oluwashola, and

Oluwafemi, but at the removal hearing he had testified that his deceased siblings’

first names were “Oluwashole,” “Oluwasin,” “Oluwafumilayo,” and “Abosede.”

When the IJ questioned Awoleye about this discrepancy, he changed his testimony

and explained that he was tired, but both his explanation before the IJ and his

explanation on appeal—that his siblings’ names were easy to confuse—were

unconvincing. Furthermore, Awoleye only corrected the names of his deceased

siblings after the IJ pointed out the discrepancy. The BIA also stressed that, even

assuming Awoleye might not know the age of each of his siblings, it was

reasonable to expect Awoleye to know his birth order within his family. With

respect to Awoleye’s siblings, the IJ “had the distinct impression that the

respondent was not being accurate and truthful with the Court,” and the BIA

determined that this observation of demeanor was entitled to deference.

      The BIA also affirmed the IJ’s adverse credibility findings as to whether the

inconsistencies in Awoleye’s asylum application were attributable to errors by his

counsel, when Awoleye learned of his siblings’ deaths, and when he had last


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spoken with his father, stressing the IJ’s observations of demeanor and Awoleye’s

changing testimony. The BIA concluded that, under the totality of the

circumstances, Awoleye failed to credibly establish his eligibility for asylum.

      The BIA also affirmed the IJ’s alternative holding that Awoleye did not

show a well-founded fear of future persecution. The BIA pointed out that,

according to Awoleye, his siblings were killed to put pressure on his father, but his

father was now dead. Awoleye failed to provide sufficient evidence that the

NNIFG would be interested in harming Awoleye “4 years after killing his siblings,

and 3 years after killing his father.”

      The BIA recognized Nigeria’s current problems with Boko Haram, but

concluded that Awoleye failed to demonstrate that Boko Haram would be

interested in him if he returned to the country. Similarly, Awoleye failed to

provide evidence showing that he could not relocate from northern to southern

Nigeria, as his only evidence on this point was that he did not know his family in

southern Nigeria. The BIA noted that the U.S. Department of State’s 2012 Human

Rights Report for Nigeria indicated that many Christians were relocating to

southern Nigeria.

      The BIA affirmed the discretionary denial of asylum. The BIA noted that

Awoleye argued only that his marriage fraud conviction was invalid, and did not

“otherwise [make] a meaningful argument regarding why the alternative


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discretionary denial was incorrect.” The BIA explained that it did not have

jurisdiction to determine the validity of Awoleye’s underlying conviction. The

BIA also rejected Awoleye’s claims that the IJ was biased against him.

      The BIA determined that Awoleye had not met his burden of proof with

regard to asylum, and he therefore also failed to meet his higher burden of proof

for withholding of removal. Finally, the BIA found that Awoleye had not

demonstrated that it was more likely than not that he would be tortured if returned

to Nigeria, and, thus, he was not entitled to CAT relief.

                                 II. DISCUSSION

A.    Asylum

      The IJ denied Awoleye asylum on two separate grounds: (1) Awoleye failed

to prove he was statutorily eligible for asylum; and (2) even if Awoleye was

statutorily eligible, his asylum request should still be denied as a matter of

discretion because of his marriage fraud conviction. Even if an alien otherwise

establishes eligibility for asylum, the actual grant of asylum is a matter of

discretion that lies with the Attorney General. Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1231 (11th Cir. 2005). The discretionary denial of asylum is

“conclusive unless manifestly contrary to the law and an abuse of discretion.” INA

§ 242(b)(4)(D), 8 U.S.C. § 1252(b)(4)(D).




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       On appeal, Awoleye argues both that he proved his statutory eligibility for

asylum and that he merits asylum as a matter of discretion. Because we conclude

that Awoleye has not shown that the discretionary denial of asylum was manifestly

contrary to the law and an abuse of discretion, we do not reach the merits of

Awoleye’s asylum claim. 4

       The discretionary decision whether to grant or deny asylum requires

consideration of the totality of the circumstances, in which adverse factors are

balanced against favorable ones. See Matter of Pula, 19 I. & N. Dec. 467, 474

(BIA 1987). In exercising its discretion, the BIA must, after determining the

asylum applicant has a prior conviction, “consider all evidence in support of the

alien’s request” and in particular “must evaluate the nature and underlying

circumstances of the applicant’s conviction in order to determine the weight it

should accord to this adverse factor.” Martinez-Benitez v. I.N.S., 956 F.2d 1053,

1055 (11th Cir. 1992). Further, the asylum applicant’s “guilty plea constitutes an

admission of all the elements of a formal criminal charge.” Id. at 1056 (quotation

marks omitted).

       It is undisputed that Awoleye pled guilty to marriage fraud in connection

with his 2006 marriage to Kemp. Under 8 U.S.C. § 1325(c), the crime of marriage

fraud is committed by “[a]ny individual who knowingly enters into a marriage for

       4
         Contrary to Awoleye’s argument, the BIA did not deny his CAT claim as a matter of
discretion, only his asylum claim.
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the purpose of evading any provision of the immigration laws . . . .” 8 U.S.C.

§ 1325(c). Thus, by pleading guilty, Awoleye admitted attempting to fraudulently

evade the immigration laws. 5 Moreover, Awoleye’s signed plea agreement

indicated that he entered into a sham marriage with Kemp to obtain lawful

permanent resident status; that when he entered into the sham marriage, he was

already married to, and living with, a Nigerian woman; and that he had Kemp file a

false I-130 petition stating that he lived with Kemp.

       Awoleye’s only exhausted argument is that he should have received a

favorable exercise of discretion because his marriage fraud conviction is invalid.6

Specifically, he contends that his criminal indictment should have been dismissed

based on the statute of limitations. Awoleye, however, does not contend that his

marriage fraud conviction was overturned, much less that he appealed it. Thus his

conviction remains final for immigration purposes and could not be collaterally

attacked in his immigration proceedings. See Mohammed v. Ashcroft, 261 F.3d

1244, 1251 (11th Cir. 2001) (explaining that the alien may not collaterally attack

his underlying conviction in his immigration proceedings); Zinnanti v. I.N.S., 651


       5
         Awoleye does not argue that his guilty plea was involuntary or that he was not advised
of the immigration consequences that might result from his guilty plea.
       6
         To the extent Awoleye now challenges the IJ’s balancing of the favorable and
unfavorable factors, Awoleye did not raise this argument before the BIA, but instead argued only
the validity of his marriage fraud conviction. We lack jurisdiction to address unexhausted
claims. See 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250
(11th Cir. 2006).
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F.2d 420, 421 (5th Cir. Unit A July 1981) (concluding that immigration authorities

may not look behind the judicial record of final conviction to determine the

validity of a guilty plea). 7 Awoleye has not shown that the discretionary denial of

asylum on the basis of Awoleye’s marriage fraud conviction was manifestly

contrary to the law and an abuse of discretion.

B.     Withholding of Removal

       To establish eligibility for withholding of removal, an applicant must show

that his life or freedom would be threatened in the country of removal because of

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

opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). To meet this standard, the

applicant bears the burden of showing that it is “more likely than not” that he will

be persecuted or tortured on account of one of the five protected grounds.

Sepulveda, 401 F.3d at 1232; 8 C.F.R. § 208.16(b)(2).

       Although an adverse credibility determination alone may support a denial of

withholding of removal, if the applicant produces evidence other than his

testimony, the IJ and the BIA must consider this evidence as well. See Forgue v.

U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). In making an adverse

credibility finding, the IJ must offer “specific, cogent reasons” for the finding.


       7
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Circuit adopted as binding precedent all decisions by the former Fifth Circuit handed down
before October 1, 1981.
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Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006) (quotation marks

omitted). The IJ, in evaluating credibility, must consider the “totality of the

circumstances,” including (1) demeanor, candor, or responsiveness of the

applicant; (2) the inherent plausibility of the applicant’s written and oral statements

(whenever made and whether or not under oath, and considering the circumstances

under which such statements were made); (3) the internal consistency of each such

statement; (4) the consistency of such statements with other evidence of record

(including the reports of the Department of State on country conditions); and (5)

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.” INA § 208(b)(1)(B)(iii), 8 U.S.C.

§ 1158(b)(1)(B)(iii); 8 see also Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th

Cir. 2006). “Once an adverse credibility finding is made, the burden is on the

applicant alien to show that the IJ’s credibility decision was not supported by




       8
         Although 8 U.S.C. § 1158 governs asylum claims, 8 U.S.C. § 1231(b)(3)(C) provides
that the IJ’s credibility findings for purposes of determining eligibility for withholding of
removal are governed by § 1158(b)(1)(B). Awoleye’s withholding of removal claim is subject to
the REAL ID Act’s amendments to § 1158 because his application was filed after the
amendments took effect on May 11, 2005. See REAL ID Act of 2005, Pub. L. No. 109-13,
§ 101(h)(2), 119 Stat. 231, 305.
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specific, cogent reasons or was not based on substantial evidence.” Ruiz, 440 F.3d

at 1255 (quotation marks and brackets omitted).9

       Here, the IJ and the BIA gave specific, cogent reasons for finding Awoleye

not credible, and those reasons are supported by substantial evidence. In

particular, the IJ and the BIA stressed Awoleye’s inability to consistently identify

which of his siblings were killed, the ages of any of his siblings, or even his birth

order within his family. Awoleye stated in his asylum application that two of his

deceased siblings were Oluwafunmi and Oluwafemi, but at the second removal

hearing, he omitted these names and testified that the NNIFG had killed “Abosede”

and “Oluwasin,” the two sisters his asylum application stated were alive in Nigeria.

Awoleye did not correct his mistake until it was pointed out by the IJ and he was

allowed to review his asylum application. And, his only explanation for this

mistake was that he was tired. Similarly, when the IJ pressed Awoleye on his

inability to recall his siblings’ ages and whether they were older or younger than he

was, Awoleye’s only explanations were that his family did not observe birthdays

and that a lot had happened to him in the United States. As both the IJ and the BIA


       9
         The BIA affirmed the IJ’s adverse credibility finding and expanded upon the IJ’s
reasoning. Thus, we review the IJ’s credibility finding as supplemented by the BIA. See
Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006). Credibility findings, like all
factual determinations, are reviewed under the substantial evidence test. Mohammed v. U.S.
Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008). Our review of credibility determinations is
“highly deferential” and we “may not substitute our judgment for that of the Board.” Id. at 1344-
45 (quotation marks and brackets omitted). We will overturn a credibility finding only if the
record compels it. See id.at 1345.
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emphasized, even assuming Awoleye might not know the ages of his siblings, it

was reasonable to expect that he would have at least some idea of whether his

siblings with whom he grew up were older or younger than he was, especially

given that some of his deceased siblings were not close to him in age. 10

      While Awoleye contends he offered plausible explanations, the IJ was not

required to accept them, especially given that the IJ specifically found that during

this portion of Awoleye’s testimony, his demeanor suggested he was not being

candid. In any event, we cannot say these explanations compel a conclusion that

Awoleye was credible. See Chen, 463 F.3d at 1233 (concluding that a tenable

explanation for an inconsistency, alone, does not compel a conclusion that the

applicant is credible).

      The IJ and the BIA also correctly noted that Awoleye gave changing

testimony regarding receiving, reading, and signing his asylum application, and the

IJ found Awoleye’s demeanor during this testimony indicated he was not being

candid. Given that Awoleye was attempting to explain other inconsistencies

between his asylum application and hearing testimony, Awoleye’s inability to

consistently explain how and when he reviewed the application is a specific,




      10
        According to Awoleye’s asylum application, Awoleye was born in 1982, whereas his
deceased siblings were born in 1979, 1985, 1987, and 1990.
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cogent reason for discrediting him, and one that Awoleye has not made any

significant effort to rebut. 11

       Another inconsistency noted by the IJ was Awoleye’s claim that the NNIFG

burned down his father’s church—the Foursquare Gospel Church in Jos—in March

2010, but two of the threatening letters the NNIFG purportedly sent to Awoleye’s

father were sent to that church in May and June 2010, months after the NNIFG had

already burned it down. Similarly, the obituary notices for Awoleye’s deceased

family members—which list their dates of death as occurring in April and June

2010—also reference the Foursquare Gospel Church in Jos. In addition, Awoleye

submitted documentation indicating that his father reported the deaths of his four

children to the police, but these documents make no mention of the threats his

father received from the NNIFG.

       The IJ noted the inconsistency between Awoleye’s asylum application,

which stated that his mother was shot with a gun, and Awoleye’s hearing

testimony, which was that his mother was shot with a bow and arrow. Even

putting aside the gunshot versus bowshot inconsistency, Awoleye was inconsistent




       11
         Awoleye repeatedly argues that the inconsistencies relied upon to discredit him are
inconsequential or do not go to the heart of his claims. However, an adverse credibility finding
may be based on any inconsistency, regardless of whether the inconsistency goes to the heart of
the applicant’s claim. See 8 U.S.C. § 1158(b)(1)(B)(iii); Tang v. U.S. Att’y Gen., 578 F.3d
1270, 1277 (11th Cir. 2009).
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about whether his mother was shot three times or once and whether she was shot in

2010 or before his father began receiving the threatening letters in 2009.

          The BIA noted that Awoleye gave inconsistent statements about when he

spoke to his father and learned of his siblings’ deaths in 2010. During his hearing

testimony, Awoleye initially said he spoke to his father one or two weeks before

the mid-to-late June track event, then said the call occurred in mid-May, and a few

minutes later stated that his father told him of his sisters’ deaths in “mid-April –

May,” and that his talking to his father “ran into June,” when his two brothers were

killed.

          Finally, there is Awoleye’s marriage fraud. As the IJ explained, the fact that

Awoleye has already attempted to fraudulently obtain lawful permanent resident

status by entering into a sham marriage with a United States citizen and then

having his wife file a false I-130 petition on his behalf seriously undermines

Awoleye’s credibility.

          In sum, the discrepancies and implausibilities identified by the IJ and the

BIA, the IJ’s observations of Awoleye’s equivocal and less-than-candid demeanor,

and Awoleye’s conviction for marriage fraud all amply support the adverse

credibility finding. Awoleye does not contend that the other evidence in the

record, without his discredited testimony, compels a conclusion that it is more

likely than not that he will be persecuted by the NNIFG if he returns to Nigeria.


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Accordingly, in light of the IJ’s credibility finding, substantial evidence supports

the denial of Awoleye’s request for withholding of removal.

      Even if Awoleye were deemed credible, substantial evidence also supports

the alternative finding that Awoleye’s future persecution claim failed on the merits.

Awoleye’s own testimony established that the NNIFG targeted him because of his

father’s preaching, rather than because of Awoleye’s own religious beliefs, and

that Awoleye had not received any threats or learned of any violence against his

family in the seventeen months since his father’s death.

      Furthermore, substantial evidence supports the finding that Awoleye failed

to meet his burden of showing that he could not reasonably relocate to southern

Nigeria. See 8 C.F.R. § 208.16(b)(2), (b)(3)(i) (providing that an applicant cannot

show a well-founded fear of future persecution if the IJ “finds that the applicant

could avoid a future threat to his or her life or freedom by relocating to another

part of the proposed country of removal and, under all the circumstances, it would

be reasonable to expect the applicant to do so” and placing the burden to show

relocation would not be reasonable on the applicant). At his removal hearing,

Awoleye admitted that all the violence against his family occurred in northern

Nigeria. Country evidence in the record indicates that religious unrest and

violence have occurred in northern Nigeria, which is dominated by Muslim ethnic

groups. As a result, many Christians have fled to southern Nigeria, which is


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predominantly Christian, to escape the religious violence in the North. Awoleye’s

only justification for not moving to southern Nigeria was that he did not know his

extended family there. Thus, substantial evidence supports the finding that

Awoleye’s testimony, if credited, did not establish statutory eligibility for

withholding of removal.

C.     CAT Claim

       To be eligible for CAT relief, an applicant must establish that it is more

likely than not that he would be tortured if removed to the proposed country of

removal. 8 C.F.R. § 208.16(c)(2); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d

1239, 1242 (11th Cir. 2004). The applicant must demonstrate that the torture

would be inflicted by the government or with its acquiescence. Reyes-Sanchez,

369 F.3d at 1242; Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th

Cir. 2007); see also 8 C.F.R. § 208.18(a)(1) (requiring that the torture be “inflicted

by or at the instigation of or with the consent or acquiescence of” a government

official).

       For the same reasons that Awoleye failed to carry his burden with respect to

withholding of removal under the INA, Awoleye also did not show that it is more

likely than not that he would be tortured within the meaning of CAT if he was

removed to Nigeria. See 8 C.F.R. § 208.18(a)(1); Reyes-Sanchez, 369 F.3d at

1242. Furthermore, Awoleye presented no evidence that any harm he fears would


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be inflicted by, or with the acquiescence of, the Nigerian government. Neither the

NNIFG nor Boko Haram is part of the Nigerian government, and none of the

evidence Awoleye submitted suggests that either group is acting with the

acquiescence of the Nigerian government. Thus, substantial evidence supports the

BIA’s denial of CAT relief.

      For all the foregoing reasons, we deny Awoleye’s petition for review.

      PETITION DENIED.




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