                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-3408
                                     _____________

             VLADISLAV PAVLOV a/k/a Vladislav Vladimirovich Pavlov;
                            DANIL PAVLOV;
                             ILYA PAVLOV,
                                     Petitioners

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                    Respondent
                            _______________

                      On Appeal for Review of an Order of the
                           Board of Immigration Appeals
              (Agency Nos. A201-139-917, A201-139-918, A201-139-919)
                       Immigration Judge: Steven A. Morley
                                _______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 17, 2015

           Before: SMITH, JORDAN and VAN ANTWERPEN, Circuit Judges.

                               (Opinion Filed: June 9, 2015)
                                    ______________

                                        OPINION*
                                     ______________




       *
        This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
VAN ANTWERPEN, Circuit Judge.

       Vladislav Pavlov (“Pavlov”) and his sons Danil Pavlov (“Danil”) and Ilya

Pavlov (“Ilya”) filed this Petition for Review of the decision of the Board of

Immigration Appeals (“BIA”), dated June 27, 2014, affirming the Immigration

Judge’s (“IJ”) September 20, 2012 denial of their collective application for asylum,

withholding of removal, and protection under Article 3 of the United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“CAT”). Because substantial evidence supported the IJ’s finding that

Pavlov’s testimony was not credible and that petitioners did not have a well-founded

fear of future persecution, we will deny the Petition for Review.

            I.    FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       Because we write for the parties, we will only set forth the facts as necessary

to inform our analysis. Pavlov, a native and citizen of Turkmenistan, is the lead

petitioner in this case. Pavlov’s sons, Danil and Ilya, are also natives and citizens of

Turkmenistan and are derivatives of Pavlov’s petition. Pavlov and his sons are

ethnically Russian. This appeal arises from Pavlov’s alleged past persecution in

Turkmenistan based on his Russian ethnicity and his fear of future persecution if his

family is required to return to Turkmenistan.

       The following description of events leading to the Pavlov family’s departure

from Turkmenistan for the United States in 2010 is based on Pavlov’s account of

those events. After the fall of the Soviet Union, Pavlov and his now ex-wife, Elena

Pavlova (“Elena”), also an ethnic Russian, began to experience harassment and

                                           2
verbal abuse in public places. In October 1994, Pavlov was fired from his job as a

mechanic on account of his Russian ethnicity. Pavlov then began to sell records and

videotapes at a marketplace to earn money. He and other Russian vendors had to

bribe Turkmen police officers in order to remain open.

       In December 1996, two men stole Elena’s purse, but the police refused to take

a report of the incident because of her ethnicity. A second incident occurred in 1996,

when Pavlov and a friend were riding in a taxicab and the cab driver picked up

another passenger. The police stopped the cab and discovered that the new passenger

had drugs. The police beat Pavlov and his friend, even though they were not involved

in the illegal activity.

       In 1999, Pavlov opened an office in Turkmenibad for a company that gave

seminars—mainly attended by ethnic Russians—to help people find jobs.

Government officials demanded bribes and harassed Pavlov for not hiring more

Turkmen employees. Eventually the Assistant Mayor of Turkmenibad asked Pavlov

to shut down his business in order to prevent him from publicizing employment

problems, particularly among the ethnic Russian community.

       In 2002, Elena took Ilya to a playground where she was attacked by Turkmen

women who told her that ethnic Russians did not belong there. Pavlov then went to

the playground to confront the women. When he arrived, three Turkmen men tried to

fight him, called him a “Russian pig,” and told him to go back to Russia. (IJ1 at 41).


       1
         “IJ” refers to the September 20, 2012 decision of the Immigration Judge in
this matter. This decision begins at page 37 of the Appendix to the Appellant’s Brief.

                                           3
       In August 2004, police officers harassed Pavlov while he was waiting outside

of a store for a friend to finish shopping. Pavlov and his friend were then arrested,

taken to the police station, and released from custody approximately eight hours

later. The police spoke negatively about Pavlov’s ethnicity. They told him that the

power of the Soviet Union had ended and that it was time to live according to

Turkmen laws.

       Elena moved to the United States in May of 2004 because of the incident at

the playground. In June 2007, police interrogated Pavlov about Elena because she

applied for asylum in the United States. The police asked if she had anything against

the Turkmen government or president. The police threatened that if Pavlov did not

divorce Elena, they would imprison Pavlov and place his children in a foster home.

Pavlov and Elena decided that they should divorce for the family’s safety. Elena

subsequently filed for and obtained a divorce from Pavlov in the United States.

       On August 21, 2009, Turkmen individuals attacked Ilya while he was playing

in a courtyard. Ilya suffered a head injury after being struck on the head with a stick.

Pavlov reported the incident to the police, but the police refused to take action and

classified the incident as an accident.

       The final event occurred in August of 2010, when Pavlov and his brother were

waiting in line at a motor vehicle inspection station. Both of them were casually

dressed in the same manner as the Turkmen customers waiting in line. They were

told that their car inspection documents could not be processed until they went home



                                           4
and changed their clothes. Pavlov was told that “[y]ou Russians have to follow our

rules now.” (IJ at 43).

       After these incidents, Pavlov decided that his family needed to leave

Turkmenistan. Pavlov, Danil, and Ilya entered the United States on October 19, 2010

and were authorized to remain in the United States until April 18, 2011. On July 7,

2011, the Department of Homeland Security (“DHS”) issued Pavlov and his sons a

Notice to Appear, charging them with being removable as aliens who remained in the

United States for a time longer than permitted.

       DHS commenced removal proceedings against Pavlov and charged him with

removability under § 237(a)(1)(B) of the Immigration and Nationality Act (“INA”).

Pavlov conceded his removability, but he filed claims for asylum, withholding of

removal, and protection under CAT, with Danil and Ilya as derivatives of his

petitions. The IJ held merits hearings in February and May of 2012 to evaluate

Pavlov’s application. He issued a decision finding Pavlov removable and denying

Pavlov’s application for asylum, withholding of removal, and protection under CAT

on September 20, 2012.

       The IJ found Pavlov’s testimony not credible—noting that Pavlov’s testimony

at the merits hearings was materially inconsistent with statements made in an

affidavit he submitted with his application. Furthermore, the IJ found that Pavlov’s

testimony about Ilya’s head injury was inconsistent with other evidence in the record.

Alternatively, the IJ found that Pavlov’s claims failed because he did not demonstrate

past persecution or a well-founded fear of future persecution. Specifically, the IJ

                                          5
found that while Russians face economic discrimination and are treated as second-

class citizens, that treatment does not rise to the level of persecution. The IJ further

explained that there was no evidence that the military hazing of ethnic Russians was

more severe than that faced by individuals from any other ethnic, geographic, or

tribal background. Accordingly, the IJ denied Pavlov’s application for asylum,

withholding of removal, and relief under CAT.

       Following the IJ’s decision, Pavlov petitioned the BIA for review. The BIA

dismissed Pavlov’s appeal, finding that the IJ’s adverse credibility determination was

proper and finding no other clear errors in the IJ’s decision. This timely petition for

review followed.

                                 II.    DISCUSSION2

       1.     Standard of Review

       When the BIA issues its own decision, this Court will review that decision and

not the decision of the IJ. Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009).

However, “[w]hen the BIA adopts or defers to the underlying decision of the IJ, we

review the IJ’s opinion as the decision of the agency.” Garcia v. Att’y Gen., 665 F.3d

496, 502 (3d Cir. 2011). Here, the BIA issued a decision that substantially relied on

the IJ’s decision, and it deferred to the IJ’s findings on each issue. Accordingly, we

review the IJ’s decision as the decision of the agency. Id.



       2
        The BIA had jurisdiction to review the IJ’s decision pursuant to 8 C.F.R.
§ 1003.1(b)(3). This Court has jurisdiction to review final orders of removal pursuant
to 8 U.S.C. § 1252(a).

                                           6
      This Court reviews legal determinations de novo, subject to the principles of

deference established in Chevron v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010). We review

adverse credibility determinations and other findings of fact under the substantial

evidence standard. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009). Under

this standard, factual findings are upheld so long as they are “supported by

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

Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). This court “cannot

supersede an administrative agency’s findings simply because an alternative finding

could be supported by substantial evidence.” Yan Lan Wu v. Ashcroft, 393 F.3d 418,

424–25 (3d Cir. 2005). However, this deference is not warranted when “any

reasonable adjudicator would be compelled to conclude to the contrary.” Lin-Zheng,

557 F.3d at 155 (citing 8 U.S.C. § 1252(b)(4)(B) (2012)).

      2.     Asylum Claim

      Pavlov first appeals the denial of his petition for asylum. The INA authorizes

the Attorney General to grant asylum to any person who has established that he is a

refugee. 8 U.S.C. § 1158(b)(1)(A) (2012). To establish refugee status, an applicant

must show either past persecution or a well-founded fear of future persecution based

on a protected characteristic. Id. at § 1101(a)(42)(A) (2012); 8 C.F.R. § 208.13(b)

(2014). The applicant must also prove that his “race, religion, nationality,

membership in a particular social group, or political opinion was or will be at least

one central reason” for persecution. 8 U.S.C. § 1158(b)(1)(B)(i) (2012).

                                          7
              A.     Adverse Credibility Determination

       Pavlov first argues that the IJ erred by concluding that his testimony was not

credible “based on minor omissions and inconsistencies between his affidavit and his

testimony.” (Appellant’s Br. at 16). Pavlov further argues that minor inconsistencies

or omissions that “do not go to the heart” of the asylum claim cannot support an

adverse credibility determination. (Id. at 17). The burden is on the applicant to

establish that he is a refugee. 8 U.S.C. § 1158(b)(1)(B)(i) (2012); 8 C.F.R. §

208.13(a) (2014). An applicant’s testimony standing alone may satisfy this burden,

“but only if the applicant satisfies the trier of fact that the applicant’s testimony is

credible.” 8 U.S.C. § 1158(b)(1)(B)(ii) (2012).

       Therefore, in evaluating whether an applicant has sustained his burden, the IJ

must make a credibility determination. The REAL ID Act sets forth the standard for

credibility determinations for asylum applications that were filed after May 11, 2005.

8 U.S.C. § 1158(b)(1)(B)(iii) (2012); Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d

Cir. 2007). Pursuant to the REAL ID Act, the IJ’s credibility determination must be

based on “totality of the circumstances, and all relevant factors,” including:

       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
8 U.S.C. § 1158(b)(1)(B)(iii) (2012) (emphasis added). Prior to the REAL ID Act,

minor omissions or inconsistencies that did not go to the heart of the asylum claim

could not support an adverse credibility determination. See Gao v. Ashcroft, 299 F.3d

266, 272 (3d Cir. 2002) (“Generally, minor inconsistencies and minor admissions

that reveal nothing about an asylum applicant’s fear for his safety are not an adequate

basis for an adverse credibility finding.” (internal quotation marks and citations

omitted)). However, the Real ID Act created a new standard that permits the trier of

fact to base credibility determinations on a wide variety of factors, regardless of

whether an inconsistency relates to the heart of the asylum claim.

       Generally, the IJ’s overall credibility determination “is more properly decided

on the cumulative effect of the entirety of the [applicant’s testimony]” rather than on

each individual element. Jishiashvili v. Att’y Gen., 402 F.3d 386, 396 (3d Cir. 2005).

This Court generally defers to the IJ on credibility questions where the IJ’s findings

and conclusions are supported by the record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d

Cir. 2003). However, the IJ must give the applicant the opportunity to explain any

inconsistencies in his testimony before making a credibility determination. Caushi v.

Att’y Gen., 436 F.3d 220, 226 (3d Cir. 2006).

       The REAL ID Act provisions concerning testimonial credibility govern this

analysis because Pavlov filed his asylum petition in 2012—well after the May 2005

date in which the REAL ID Act took effect. 8 U.S.C. § 1101 (2012). The REAL ID

Act specifically authorized the IJ to base his credibility determination of Pavlov’s

testimony “without regard to whether the inconsistency . . . goes to the heart of the

                                          9
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (2012). Therefore, it was

permissible for the IJ to base his credibility determination solely on issues that did

not go to the heart of Pavlov’s asylum claim. The REAL ID Act compels us to reject

Pavlov’s argument that the IJ erred by basing his adverse credibility determination on

inconsistencies that allegedly do not go to the heart of Pavlov’s asylum claim.

       On appeal, Pavlov contends that the IJ erred in determining that Pavlov’s

testimony was not credible based on several inconsistencies between his testimony

and the written documentation he submitted. (Appellant’s Br. at 16–20). We

disagree. Substantial evidence supports the IJ’s adverse credibility determination.

For example, Pavlov testified at his merits hearing that after the playground incident

where his wife and son were chased away, he called the police and they did not

respond. (IJ at 41). This information was not included in his affidavit dated April 12,

2011. Pavlov explained that he did not include this information in his affidavit

because if he wrote down everything that happened to him, “it would not fit in the

book.” (Id.). On appeal, Pavlov contends that he did not include his call to the police

because “[i]t was not shocking . . . that the police were disinterested in this incident.”

(Appellant’s Br. at 18). Pavlov submitted a nearly seven-page, single spaced affidavit

detailing events dating back to 1991. As the IJ noted, in this otherwise highly

detailed and lengthy affidavit, this is the type of information that one expects to be

included. (IJ at 55). Applying the substantial evidence standard, we do not reject the

IJ’s conclusion that this explanation was insufficient.



                                           10
       Pavlov also testified at the merits hearing that the police beat him on the back

and shoulders when he was being interrogated about Elena’s asylum application in

the United States. (Id. at 42). Pavlov did not make any mention of being hit in his

affidavit. When given the opportunity to explain this discrepancy, Pavlov explained

he did not include the incident because he did not consider it to be a “formal beating”

and he did not have corroborating medical evidence. (Id.) However, as the IJ noted,

Pavlov’s affidavit contains descriptions of several other instances that are not

supported by corroborating evidence. (Id. at 56). Pavlov’s affidavit contained a

description of being beaten at the playground. (Appellant’s R. at 66) He did not

supply any evidence corroborating this incident. Therefore, substantial evidence

supports the IJ’s determination that the lack of documentation is an implausible

excuse for Pavlov’s failure to include the beating in his affidavit when he included

other unsubstantiated events.

       Finally,   substantial   evidence   supports   the   IJ’s   adverse   credibility

determination based on the inconsistencies between Pavlov’s testimony and

documentary evidence regarding Ilya’s head injury. Pavlov testified that Ilya

sustained his head injury on August 21, 2009, when Pavlov was out of town. (IJ at

43). Pavlov stated that when he returned home two days later, on August 23, he saw

Ilya with bandages on his head. (Id.). However, the evidence that Pavlov submitted

in support of his petition, including medical documentation and an affidavit

submitted by Elena’s mother, Valentine Artuhina (“Artuhina”), indicated that Ilya’s

injury took place on August 15, 2009. (Id. at 56).

                                           11
       Artuhina’s affidavit further stated that she took Danil and Ilya out of town for

a week beginning on August 22, 2009. (Id.). Accordingly, Pavlov could not have

seen Ilya’s bandaged head on August 23, when Pavlov had returned to his hometown

and Ilya was away with his grandmother. Artuhina’s affidavit also stated that the

police came to her home and spoke with her husband while she, Danil, and Ilya were

out of town. (Id.). Pavlov testified that he was present when the police came to the

home. (Id.). However, Artuhina’s affidavit does not make any mention of Pavlov

seeing Ilya’s bandaged head days after the injury nor of him being present when the

police came. (Id.). The material inconsistencies between Pavlov’s testimony and his

documentary evidence support the IJ’s adverse credibility determination.

       The IJ’s credibility determination was based on the cumulative effect of these

inconsistencies in Pavlov’s testimony. Jishiashvili, 402 F.3d at 396. Because

“reasonable, substantial, and probative evidence on the record” supports the IJ’s

adverse credibility findings, we affirm that decision. Lin-Zheng, 557 F.3d at 155.

              B.     Well-Founded Fear of Future Persecution

       Pavlov next argues that the BIA and IJ erred in finding that he does not have a

well-founded fear of future persecution because he faces “life-threatening

consequences” for returning to Turkmenistan after filing for asylum. (Appellant’s Br.

at 22–23). He also argues that his sons will be subject to Turkmenistan’s pattern or

practice of hazing ethnic Russians in the military. (Id. at 20–21).

       An applicant can establish eligibility for asylum by demonstrating a well-

founded fear of future persecution based on a protected characteristic. 8 U.S.C.

                                           12
§ 1101(a)(42)(A) (2012); 8 C.F.R. § 208.13(b) (2014). To prove a well-founded fear

of persecution, an applicant must meet a two-pronged test. Lie v. Ashcroft, 396 F.3d

530, 536 (3d Cir. 2005). First, the applicant must demonstrate a subjective fear of

persecution “through credible testimony that [his] fear is genuine.” Id. Second, the

applicant must show that “a reasonable person in the alien’s circumstances would

fear persecution if returned to the country in question.” Id.

       In order to meet this second, objective prong, the applicant must (1) show that

he would be individually singled out for persecution, or (2) demonstrate that his

country of nationality has a pattern or practice of persecuting groups similarly

situated to the applicant based on a protected characteristic. Id. (citing 8 C.F.R.

§ 208.13(b)(2)(iii)(A) (2014)). The INA does not define the country conditions that

constitute a “pattern or practice of persecution.” Id. at 537. However, as a threshold

matter, this Court has held that the persecution of the group must be “systematic,

pervasive, or organized” and sufficiently widespread to constitute a pattern or

practice. Id.

       Substantial evidence supports the IJ’s determination that Pavlov failed to

establish a pattern or practice that would lead to future persecution should he and his

sons return to Turkmenistan. 3 The record established that military hazing in

Turkmenistan is severe and is often based on ethnic, geographic, or tribal affiliation.

(IJ at 45, 50). However, we agree with the IJ that Pavlov did not present sufficient

       3
        The IJ found that Pavlov did not “allege that he will be singled out for
persecution upon return to Turkmenistan” and instead treated Pavlov’s claim as one
based on a pattern or practice of persecution. (IJ at 58).
                                           13
evidence to conclude that ethnic Russians are singled out for more severe hazing than

individuals from other backgrounds. (Id. at 59). The affidavit Pavlov submitted from

one ethnically Russian former conscript on his brutal hazing in the military is not

sufficient to demonstrate that there is a “systematic, pervasive, or organized” pattern

or practice of persecution of ethnic Russians in the Turkmen military. Lie, 396 F.3d

at 537. Pavlov therefore failed to show he had an objective fear of future persecution

based on the Turkmen’s pattern or practice of discrimination.

       Furthermore, Pavlov speculates that because of his experience being

interrogated when his wife filed for asylum, he is also “likely” to face danger

because of his asylum application. (Appellant’s Br. at 23). However, he cannot cite

to evidence in the record that Turkmen officials will inflict “life-threatening

consequences” because of his asylum application, or even that they know of it. (Id.)

Pavlov also asserts that because of the dwindling numbers of Russians in

Turkmenistan, there is a strong likelihood that he will be persecuted by civilians and

the police. (Id. at 24). Again, Pavlov does not cite to evidence in the record to

support this assertion. Pavlov has therefore not presented substantial evidence that

would compel us to overturn the IJ’s determination that Pavlov failed to prove a

well-founded fear of persecution.

       3.     Withholding of Removal and CAT

       Pavlov also appeals the decision to deny his request for withholding of

removal pursuant to INA § 241(b)(3) and relief under CAT. This Court has

previously recognized that the threshold for granting asylum “is lower than [the one]

                                          14
for protection under the withholding of removal or CAT provisions.” Yu v. Att’y

Gen., 513 F.3d 346, 349 (3d Cir. 2008). Therefore, the “rejection of the petitioners’

asylum claims necessarily requires that their CAT and withholding claims be rejected

as well.” Id. Because Pavlov has failed to meet his burden in establishing his asylum

claim, he has also failed to meet the more demanding burdens necessary to establish

his claims for withholding of removal and relief under CAT. We therefore deny

Pavlov’s petition for relief from the decisions for withholding of removal pursuant to

INA § 241(b)(3) and relief under CAT.

                                III.    CONCLUSION

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




                                         15
