                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0050n.06
                           Filed: January 19, 2005

                                           No. 03-3523

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


AWAN FAWZI JEBRAAIL,                              )
                                                  )
       Petitioner,                                )      ON PETITION FOR REVIEW OF AN
                                                  )      ORDER OF THE BOARD OF
v.                                                )      IMMIGRATION APPEALS
                                                  )
JOHN ASHCROFT, Attorney General,                  )
                                                  )
       Respondent.                                )



       Before: GIBBONS and ROGERS, Circuit Judges; BUNNING, District Judge.*


       ROGERS, Circuit Judge. Awan Fawzi Jebraail petitions for review of a final order of

removal issued by the Board of Immigration Appeals (“the Board”). Pursuant to its affirmance

without opinion procedure, the Board affirmed the Immigration Judge’s (“IJ”) denial of Jebraail’s

application for asylum and for withholding of removal under both the Immigration and Nationality

Act and the Convention Against Torture. Because the IJ’s adverse credibility determination, which

resulted in a finding that Jebraail did not suffer persecution, was supported by substantial evidence

in the record, we deny Jebraail’s petition for review.




       *
       The Honorable David L. Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 03-3523
Jebraail v. Ashcroft

           Jebraail, a citizen of Iraq, lawfully entered the United States in March of 2000 under a non-

immigrant fiancé visa. After overstaying his visa, Jebraail filed an application for asylum,

withholding of removal, and relief under the Convention Against Torture. Jebraail based his asylum

application on imputed and actual political opinion and religion.1 Jebraail is an Assyrian Christian.

He alleged in his application that he was perceived as an opponent of dictator Saddam Hussein

because of his association with General Yaseen Ali, a high-ranking Iraqi official and member of the

ruling Ba’ath Party who was subsequently arrested and accused of opposing the Hussein regime.

Further, Jebraail alleged that he actually did hold dissident political opinions. Jebraail was the only

witness to testify at his asylum hearing, and his testimony formed the chief evidence supporting his

application.2 An IJ issued a decision denying Jebraail’s requests for relief and ordering him removed

to Iraq.


           Jebraail’s asylum application and testimony at his hearing describe the facts of his claim as

follows. Jebraail was conscripted into the Iraqi army in 1990 and was trained in the use of electronic

surveillance equipment. While in the Iraqi military, Jebraail was forced to sign a document stating

that he would not oppose the Ba’ath Party or join another political party on penalty of death.




           1
         Although Jebraail alleged religion as a ground for asylum in his application, his written
account and his testimony both identified Jebraail’s alliance with General Yaseen Ali as the chief
basis for his claim.
           2
         Jebraail also submitted country reports and news articles detailing Saddam Hussein’s
repressive regime, affidavits from Jebraail’s brother and sister corroborating that Jebraail was
arrested in Iraq, and a translation of Jebraail’s military certificate.

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Jebraail v. Ashcroft

Jebraail was periodically recalled to service in the Iraqi army between his discharge in 1992 and his

flight from Iraq in 1999.


        After serving his term in the Iraqi army, Jebraail trained to become a glass-maker in the

northern Mosul region. Jebraail opened a small glass shop and began doing business with a Kurdish

man. With the help of his associate and General Yaseen Ali, Jebraail was able to do business selling

glass in the northern no-fly zone. At his asylum hearing, Jebraail identified General Ali as Iraq’s

Assistant Director for General Security. Jebraail bribed General Ali to allow Jebraail to make

business trips to the no-fly zone. When he left and returned from the no-fly zone, Jebraail was

detained by Iraqi security forces, who questioned Jebraail regarding the purpose of his trips.


        Jebraail’s sister was a medical doctor and as such was forbidden to leave Iraq. In 1996,

Jebraail’s father escorted Jebraail’s sister to Jordan after obtaining false papers that concealed her

occupation. From there, Jebraail’s sister fled to the United States and married a U.S. citizen.

Jebraail’s father was imprisoned when he returned to Iraq after helping Jebraail’s sister flee. Jebraail

paid Iraqi officials a bribe to secure his father’s release.


        In 1999, General Ali, Jebraail’s Ba’athist contact, was arrested by Iraqi security forces and

accused of opposing Hussein’s regime. Following the arrest of General Ali, Jebraail was arrested

and held in an Iraqi prison for forty-five days, from July 29, 1999, through September 11, 1999.

Iraqi security forces questioned him regarding his connection to General Ali, his trips to the northern

no-fly zone, and his perceived opposition to Hussein’s regime. Jebraail alleges he was beaten



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Jebraail v. Ashcroft

repeatedly during the interrogation, leaving a visible scar on his forehead. Jebraail was released

from prison after his Kurdish business partner paid a large bribe. Shortly after his release, Jebraail

sold his glass business to this partner and left Iraq for Jordan, where he remained for six months

before departing for the United States.


       On February 22, 2001, the IJ issued a decision denying all of Jebraail’s requests for relief,

and ordering him removed to Iraq. The IJ determined that Jebraail was ineligible for asylum;

further, he was not entitled to withholding of removal under the Act or the Convention Against

Torture. The IJ found that Jebraail was not credible, because his testimony and asylum application

gave divergent descriptions of events central to his claim of persecution. Jebraail appealed the IJ’s

decision to the BIA. As provided by 8 C.F.R. § 1003.1, the BIA affirmed the IJ’s decision without

opinion on March 27, 2003. Jebraail then filed this petition for review.


       To establish eligibility for asylum, an applicant must prove he is a “refugee,” i.e., a person

unable or unwilling to return to his country of origin because of a well-founded fear of persecution

based on race, religion, nationality, membership in a particular social group, or political opinion. 8

U.S.C. § 1101(a)(42)(A) (2001); 8 C.F.R. § 208.13(a) (2004).        To be well-founded, the fear of

persecution must be subjectively genuine and objectively reasonable. Mikhailevitch v. INS, 146 F.3d

384, 389 (6th Cir. 1998). If credible, the testimony of the applicant is sufficient to establish his

status as a refugee without corroboration. Id. (citing 8 C.F.R. § 208.13(a)). Proof of past

persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. 8

C.F.R. § 208.13(b)(1). If an applicant establishes that he is a refugee, he is eligible for a

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No. 03-3523
Jebraail v. Ashcroft

discretionary grant of asylum. 8 U.S.C. § 1158(b)(1) (2001); 8 C.F.R. § 208.14(a). To earn

withholding of removal under the Act, an applicant must demonstrate that there is a clear probability

that he would be subject to persecution on account of the reasons enumerated above. INS v.

Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987); Mikhailevitch, 146 F.3d at 391. To establish

eligibility for withholding of removal under the Convention Against Torture, an applicant must

demonstrate that it is more likely than not he will be tortured if returned to his country of origin.

See 8 C.F.R. § 208.18(a) (definition of torture); id.§ 208.16(c)(2) (burden of proof for relief under

Convention Against Torture).


       Because the BIA affirmed without an opinion, this court directly reviews the decision of the

IJ. Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003). Jebraail must demonstrate that the IJ’s adverse

credibility determination was not supported by substantial evidence in order to persuade this court

to grant the petition for review. See Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004). The

reversal of an adverse credibility determination is warranted only where “any reasonable adjudicator

would be compelled to conclude to the contrary.” See 8 U.S.C. § 1252(b)(4)(B); Yu, 364 F.3d at 703.

The IJ based her determination on inconsistency between Jebraail’s asylum application and his

testimony regarding two aspects of the persecution he alleged. First, the IJ found discrepancies

concerning the mistreatment Jebraail suffered when he was routinely detained while entering and

leaving the no-fly zone as part of his business. Jebraail testified that during these crossings he was

detained only once, for two hours; his written asylum application, on the other hand, stated he was

often held overnight and that the guards hit him each time he was interrogated or detained. Second,



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Jebraail v. Ashcroft

the IJ noted discrepancies between Jebraail’s asylum application and testimony concerning the

details of physical abuse Jebraail suffered during his forty-five-day imprisonment in the summer of

1999. Jebraail testified he was tied to a fan and beaten with cables; his application stated that he was

beaten with batons and hung from a hook while blindfolded. When an applicant alleges grave

mistreatment in his asylum application, but his subsequent hearing testimony does not “measure up”

to the account in the application, the IJ is entitled to conclude that the discrepancy casts “grave doubt

upon the applicant’s overall credibility.” Pilica v. Ashcroft, 388 F.3d 941, 953–54 (6th Cir. 2004)

(citing Octaviano De Leon-Barrios v. INS, 116 F.3d 391, 393–94 (9th Cir. 1997)). Here, Jebraail’s

asylum application and testimony arguably were consistent concerning his core claim that Iraqi

police imprisoned him for forty-five days in retaliation for his association with General Ali.

Nonetheless, given inconsistencies regarding previous episodes of mistreatment,3 one cannot say

that any reasonable adjudicator would be compelled to find Jebraail credible.


        The IJ found that Jebraail’s failure to provide corroboration damaged the credibility of his

claims. Jebraail argues that the IJ erred by strictly requiring corroboration. While corroboration is

not essential to establishing an objective basis for the applicant’s well-founded fear of persecution,

the IJ may look to corroboration to sustain the applicant’s burden of proof when the applicant’s




        3
         The weight the IJ attached to Jebraail’s inconsistent statements regarding the implements
with which he was beaten, on the other hand, strains the bounds of reasonableness. This is
particularly the case since Jebraail testified at his hearing that much of the abuse occurred while he
was blindfolded. Nonetheless, given the highly deferential standard of review and the presence of
other, more damaging, inconsistencies, this failing does not require reversal of the adverse
credibility determination.

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Jebraail v. Ashcroft

testimony lacks credibility. See Nigussie v. Ashcroft, 383 F.3d 531, 537-38 (7th Cir. 2004). The IJ

noted that Jebraail’s brother and sister were unable to confirm any factual details of Jebraail’s

account. The IJ may have held unrealistic expectations of corroboration concerning some factual

aspects of the case: for example, Jebraail’s brother and sister both left Iraq before Jebraail’s 1999

imprisonment and therefore would have no direct knowledge of the circumstances that led to it.

Nonetheless, it is reasonable to expect that these close relatives might confirm other details, such

as Jebraail’s association with General Ali, which predated Jebraail’s sister’s departure. Instead, they

merely submitted spare affidavits that referred to Jebraail’s imprisonment in Iraq.


       The IJ also requested that Jebraail come forward with corroborating evidence concerning

General Ali, and questioned whether General Ali in fact existed, since State Department country

reports noted the names of other military officers arrested or executed by the government for

disloyalty, but did not mention General Ali. As permitted by regulation, the Immigration Court

inquired of the State Department regarding General Ali; the State Department had no record of his

existence. The IJ was reasonable to question why Jebraail could not document the existence of a

purportedly high-ranking Ba’athist general. Substantial evidence supported the IJ’s adverse

credibility determination; therefore, the IJ’s denial of asylum and withholding of removal was

proper. See Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir.2004) (noting that, because

withholding of removal claims under the Act and under the Convention Against Torture require a

higher burden of proof than that imposed on asylum-seekers, a finding that an applicant failed to




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No. 03-3523
Jebraail v. Ashcroft

establish eligibility for asylum frequently means that he is not entitled to either form of withholding

of removal on the same facts).


       Jebraail further argues that the IJ incorrectly found him to be firmly resettled in Jordan. If

an asylum applicant has been firmly resettled outside his home country before arriving in the United

States, asylum is mandatorily barred. 8 C.F.R. § 208.13(c)(2)(i)(B). This argument is irrelevant,

because the IJ did not determine Jebraail to be barred from asylum eligibility based on firm

resettlement; instead, her determination that Jebraail was ineligible for asylum was based chiefly on

her conclusion that Jebraail was not credible enough to prove past persecution or a well-founded fear

of future persecution.


       Finally, Jebraail argues that this court should remand his case to the Board for consideration

of changed country conditions. Jebraail argues that conditions in Iraq have deteriorated for Iraqi

Christians, who face the threat of attack by Islamic zealots. This argument must fail. This court

cannot supplement the administrative record, and the Board did not take administrative notice of the

likelihood that Hussein would be toppled when it affirmed without opinion the IJ’s order of removal

in March 2003.4 See 8 U.S.C. § 1252(a)(1) (providing that reviewing court may not take additional

evidence); id. § 1252(b)(4)(A) (limiting judicial review to administrative record on which removal


       4
         Were this court to take notice of changed country conditions, the toppling of the Saddam
Hussein regime would further undermine the claims reviewed here, which are based chiefly on
Jebraail’s opposition to the Hussein regime. See 8 C.F.R. § 208.13(b)(1)(i)(A) (providing that,
where the applicant proves past persecution but the Service demonstrates that, due to a fundamental
change in circumstances, the applicant no longer has a well-founded fear, the applicant is ineligible
for asylum).

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No. 03-3523
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order is based). This court, in a well-reasoned but unpublished opinion, has found further that it

cannot take judicial notice of changed country conditions. Visha v. INS, No. 00-3446, 2002 WL

31553921, at *3 (6th Cir. Nov. 13, 2002).


       For the foregoing reasons, we deny the petition for review.




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