IMG-108                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 12-2106
                                    ___________

                                ALMAZ USSENOV,
                                             Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                   ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A088-440-332)
                    Immigration Judge: Honorable Mirlande Tadal
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                               September 5, 2012
       Before: FUENTES, JORDAN AND VAN ANTWERPEN, Circuit Judges

                          (Opinion filed: September 6, 2012)
                                      _________

                                     OPINION
                                     _________

PER CURIAM

      Almaz Ussenov, a native of the former USSR and citizen of Kazakhstan, seeks

review of a Board of Immigration Appeals (BIA) opinion denying his application for

asylum, withholding of removal, and protection under the Convention Against Torture

(CAT). The BIA sustained the adverse credibility determination of the immigration
judge (IJ), and held, as a result, that Ussenov had failed to meet his burden of proof for

obtaining relief. For the following reasons, we will deny the petition for review.

       Ussenov, who arrived in the United States in March 2010 on a nonimmigrant F-1

visa, was charged with removability under 8 U.S.C. § 1227(a)(1)(C)(i) for failing to

attend the program for which he had been admitted to the United States. In response, he

applied for asylum and derivative relief, on account of alleged persecution sustained on

the basis of nationality, religion, political opinion, and membership in a social group.

Administrative Record (A.R.) 440. In a lengthy asylum statement, Ussenov both decried

the general conditions in Kazakhstan and told the story of his mistreatment in the

country, focusing on several instances of alleged persecution. First, in 2002, he was

allegedly pushed off a train by religious extremists, leading to a year-long period of

hospitalization. A.R. 450–52. After his recovery, he visited a church, as he was

considering converting from Islam to Christianity. Upon leaving the church, he was

assaulted, leading to another period of hospitalization. A.R. 452–53. He filed a police

report, but was beaten yet again. A.R. 453. Separately, Ussenov described his fear of his

brother-in-law, a member of Kazakhstan’s national-security apparatus (described

variously as equivalent to the FBI or KGB) who assaulted him after a domestic dispute

and killed his father, a murder covered up in the official records. A.R. 454–55. This

incident led to his wife’s divorcing him and taking away their son. A.R. 455. Ussenov

worried that, were he to return to Kazakhstan, he would be targeted by people who

“desire [his] death and could do it with ease.” A.R. 456.

       After several continuances, Ussenov appeared pro se before an IJ in January 2011.

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His testimony (which was conducted through a translator) was, at times, difficult to

follow; Ussenov appeared confused regarding the chronology of the numerous assaults

and hospitalizations, and testified about incidents that he had not included in his

statement. At several times during the proceedings, the IJ appeared to become

exasperated with Ussenov’s shifting answers. Ultimately, the IJ denied his application.

She found that Ussenov had not testified credibly, which doomed his application, see

A.R. 79; in the alternative, even if Ussenov had testified credibly, she concluded that he

would not have satisfied the burdens of proof necessary for asylum, withholding, or CAT

relief. A.R. 80–90.

       On appeal before the BIA, and now represented by counsel, Ussenov assailed,

inter alia, the IJ’s demeanor during his hearing and the bases of her adverse credibility

determination. The appeal was dismissed, and while the BIA acknowledged some errors

in the adverse credibility determination, it held that it was not so infirm as to be clearly

erroneous. A.R. 3. Thus, because Ussenov had not testified credibly, and because the

IJ’s behavior did not amount to the denial of a fair hearing, Ussenov had not met his

burden for relief. A.R. 4. Ussenov filed a timely, counseled petition for review.

       We have jurisdiction under 8 U.S.C. § 1252 to review the BIA’s final order of

removal. See Borrome v. Att’y Gen., No. 11-1975, ___ F.3d ___, 2012 WL 2914111, at

*2 (3d Cir. July 18, 2012). Factual findings, including adverse credibility determinations,

are reviewed under the deferential “substantial evidence” standard. See Yusupov v. Att’y

Gen., 650 F.3d 968, 989 (3d Cir. 2011). A credibility finding must be upheld on review

unless any reasonable adjudicator, finding that it is not supported by “reasonable,

                                              3
substantial, and probative evidence on the record considered as a whole,” would be

compelled to reverse it. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009)

(citations, quotations omitted). Because Ussenov filed his asylum application after May

2005, the REAL ID Act standards governing credibility determinations apply. See

Yusupov, 650 F.3d at 991 n.34. Under REAL ID, the trier of fact may base her

credibility determination on a variety of factors, without regard to whether any

inconsistency, inaccuracy, or falsehood implicates the heart of the claim for relief. 8

U.S.C. § 1158(b)(1)(iii). “An alien’s credibility, by itself, may satisfy his burden, or

doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc); see also

Hassan v. Holder, 571 F.3d 631, 637 (7th Cir. 2009).

       As a preliminary matter, we agree with the Government that the BIA did not

“expressly adopt or defer to” the IJ’s alternative holding denying Ussenov relief even if

he were deemed credible. See Br. for Respondent 33 n.4. As we read the BIA’s

decision, it affirmed, with modifications, the IJ’s adverse credibility determination, and

held that because Ussenov was not credible, he had failed to meet his burden of proof.

Under this construction, because the BIA did not defer to the IJ’s decision, we have

jurisdiction to review its opinion only. See Nelson v. Att’y Gen., 685 F.3d 318, 320–21

(3d Cir. 2012). Consequently, were we to hold that the credibility determination was not

supported by substantial evidence, we would remand to the BIA for consideration of the

IJ’s alternative conclusion.

       However, having carefully considered the evidentiary record compiled in this case,

we conclude that the BIA’s adverse credibility determination finds substantial support in

                                              4
the record, and must therefore be upheld. The BIA pointed out that Ussenov’s testimony

regarding police reports varied from his written statement, and declined to credit his

alternative explanation that “police reports” were synonymous with letters to the Ministry

of Internal Affairs. A.R. 3. More broadly, the BIA was troubled by Ussenov’s assertions

that there were many additional violent incidents, several of which led to hospitalization,

that were not laid out in his asylum application. We agree that he did not adequately

show that the many injuries he received affected his memory to the point where this

discrepancy would be satisfactorily addressed. In sum, while we have certainly seen

adverse credibility determinations based on sounder (and broader) foundations, we

cannot conclude that the BIA’s decision was so unsupported as to be reversible.

       Ussenov argues, in the alternative, that the IJ’s conduct, which he describes as

“unprofessional and improper,” had the net effect of denying him a fair hearing and

undermining her adverse credibility determination. Ussenov cites three primary

incidents: the first, an exchange regarding the admissibility of X-rays; the second, an

“irrational” exertion of pressure in the aim of getting him to assent to the veracity of the

materials in his asylum application; and the third, a moment where the IJ appeared to

“rebuke” Ussanov for smiling. 1 We agree with the BIA that Ussenov has failed to show

prejudice flowing from these incidents, a necessary component of a due-process

violation. See Delgado-Sobalvarro v. Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010).


1
 A fourth area of contention, involving the IJ’s failure to acknowledge Ussenov’s
complaints about documents being lost by the management of the detention center, was
not raised below and is hence unexhausted and unreviewable. See Castro v. Att’y Gen.,
671 F.3d 356, 365 (3d Cir. 2012).
                                              5
Furthermore, while the exchanges evince a certain impatience, they do not rise to the

belligerence, browbeating, and finger-on-the-scale phenomena described by this Court in

cases such as Cham v. Attorney General, 445 F.3d 683 (3d Cir. 2006), and Wang v. Att’y

Gen., 423 F.3d 260 (3d Cir. 2005).

       In sum, because we conclude that the adverse credibility determination was

supported by substantial evidence, we are in agreement with the BIA that Ussenov failed

to meet his burden of demonstrating entitlement to asylum or the stricter standard for

showing that he should be granted withholding of removal; nor, for that matter, are his

evidentiary submissions alone sufficient to show that he would more likely than not be

“tortured” if returned to Kazakhstan. See Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d

582, 590–91 (3d Cir. 2011) (setting out the tests for relief under all three standards).

       Accordingly, we will deny this petition for review.




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