                                                                     [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-14905         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        MAY 31, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                                           Agency No. A099-392-485




ALABA JEFFERY IGBINOGHENE,

llllllllllllllllllllllllllllllllllllllll                                      Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                      Respondent.

                                     ________________________

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

                                               (May 31, 2012)

Before TJOFLAT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
      Petitioner Alaba Igbinoghene, a native and citizen of Nigeria, entered the

United States with a false name and with a fraudulent British passport under the

Visa Waiver Pilot program. On November 2, 2006, he applied for asylum,

withholding of removal under Immigration and Nationality Act (“INA”)

§ 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the United Nations

Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). An Immigration

Judge (“IJ”), following a hearing at which Petitioner testified and introduced

documentary evidence, denied his application in full and ordered his removal. He

appealed the decision to the Board of Immigration Appeals’s (“BIA”), and it

dismissed the appeal. He now petitions this court for review.

      The IJ denied Petitioner’s application for asylum as time-barred and,

alternatively, on the merits, because he was not credible. Among other things, his

testimony was often internally inconsistent and vague, and included numerous

facts and events that he did not include in his asylum application. In appealing the

IJ’s decision to the BIA, Petitioner did not challenge the IJ’s determination that his

asylum application was untimely. Given that circumstance, we must dismiss the

part of his petition that seeks review of the timeliness of his application for

asylum. See INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). What remains for review,

then, are the BIA’s withholding of removal and CAT rulings.

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      Petitioner urges us to reverse those rulings because the record before the

BIA shows (1) that it is “more likely than not” that he will be persecuted if

returned to Nigeria; thus, he is entitled to withholding of removal, and (2) that his

testimony concerning government agents harassing, beating, and detaining him, in

combination with the reports of political violence in Nigeria, establish that he is

also entitled to CAT relief.

      We review the BIA’s decision as the final judgment, unless the BIA

expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th

Cir. 2007). When the BIA explicitly agrees with the findings of the IJ, we review

the decision of both the BIA and the IJ as to those issues. Ayala v. U.S. Att’y Gen.,

605 F.3d 941, 948 (11th Cir. 2010). Here, the BIA issued its own decision and

explicitly agreed with several findings of the IJ. Accordingly, we review the

decisions of both the BIA and the IJ.

      Factual determinations, which include credibility determinations, are

reviewed under the substantial evidence test. Ruiz v. U.S. Att’y Gen., 440 F.3d

1247, 1254-55 (11th Cir. 2006). A credibility determination is due to be affirmed

“if it is supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. (quotation omitted). This means that we will “not

substitute [our] judgment for that of the BIA with respect to credibility findings.”

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D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). Accordingly,

to reverse a finding of fact, we must determine that the record “compels” reversal.

Ruiz, 440 F.3d at 1255 (quotation omitted). In all, we take “the record evidence in

the light most favorable to the agency’s decision and draw all reasonable

inferences in favor of that decision.” Id. at 1255 (quotation omitted).

      An applicant for asylum must meet the INA’s definition of a refugee. INA

§ 208(b)(1), 8 U.S.C. § 1158(b)(1). The definition of “refugee” includes:

      any person who is outside any country of such person’s nationality
      . . . and who is unable or unwilling to return to, and is unable or
      unwilling to avail himself or herself of the protection of, that country
      because of persecution or a well-founded fear of persecution on
      account of race, religion, nationality, membership in a particular
      social group, or political opinion . . . .

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

definition of a refugee, the applicant must, “with specific and credible evidence,

demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a

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

Ruiz, 440 F.3d at 1257 (quotation omitted).

      Under the INA, an alien seeking withholding of removal must show that his

“life or freedom would be threatened in [his] country [of origin] because of [his]

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



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opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The alien seeking

withholding of removal bears the burden of showing that it is “more likely than

not” that he will be persecuted upon returning to his country. D-Muhumed, 388

F.3d at 819 (quotation omitted). “This standard is more stringent than the

‘well-founded fear’ standard for asylum.” Id. An alien cannot meet the higher

standard for withholding of removal if he does not meet the lower asylum

standard. Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001).

      To be entitled to CAT relief, an applicant must establish that it is “more

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

8 C.F.R. § 208.16(c)(2). Torture is the intentional infliction of severe pain or

suffering by, or with the acquiescence of, a person acting in an official capacity. 8

C.F.R. § 208.18(a)(1). The burden of proof for an applicant seeking relief under

CAT, like that for an applicant seeking withholding of removal, “is higher than the

burden imposed on an asylum applicant.” Al Najjar, 257 F.3d at 1303.

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

of proof, without corroborating evidence. Ruiz, 440 F.3d at 1255. Conversely, if

the applicant relies solely on his testimony, an adverse credibility determination

may alone be sufficient to support the denial of an application. Forgue v. U.S.

Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). If the applicant produces other

                                          5
evidence of persecution, the IJ must consider that evidence, and the IJ cannot rely

solely on an adverse credibility determination. The IJ must offer specific, cogent

reasons for an adverse credibility determination, and upon such a determination,

the applicant bears the burden of demonstrating that it was not supported by

specific, cogent reasons or that it was not based upon substantial evidence. Id. To

be considered an adverse credibility determination, the IJ or BIA must make

“clean determinations of credibility,” and state explicitly that the applicant’s

testimony was not credible. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th

Cir. 2005) (quotation omitted). The weaker the applicant’s testimony, the greater

the need for corroborating evidence. Id. Indications of reliable testimony include

consistency on direct examination, consistency with the written application, and

the absence of embellishments. Ruiz, 440 F.3d at 1255.

      Under the REAL ID Act of 2005, Pub. L. No. 109-13, § 101(h)(2), 119 Stat.

302 (2005), as codified in the U.S. Code, factfinders are to consider the totality of

the circumstances when making credibility determinations. See INA

§ 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii). Those circumstances can

include the witness’s demeanor, candor, and responsiveness, the inherent

plausibility of the account, the consistency among and within all oral and written

statements and other evidence, and any inaccuracies and falsehoods in the

                                          6
statements. Id. These determinations are to be made “without regard to whether

an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s

claim.” Id.

      In this case, the BIA’s adverse credibility determination is supported by

specific, cogent reasons, including the inconsistency of Petitioner’s oral and

written statements, his vague and non-responsive answers to questions during his

merits hearing, and his material omissions in his asylum application of events that

formed the basis of his claims for relief. Among other things, the record supports

the BIA’s rejection of Petitioner’s argument that the IJ erred in finding that his

testimony about his participation in the Movement of Social Justice (“MOJ”) was

inconsistent with a news article describing his participation. Not only was his

testimony inconsistent with what the article stated, it was altogether internally

inconsistent and confusing. Additionally, his answers to questions about his

alleged arrests and detentions by Nigerian authorities were vague and non-

responsive. The medical records and police reports he submitted in proof of his

claim that he would be tortured if returned to Nigeria taken together only

established that he had two encounters with police, two years apart, after being

arrested for demonstrating. This evidence fell far short of supporting the

testimony he gave of beatings, harassment, and detention at the hands of the

                                          7
authorities. As the IJ properly found, the treatment he received was not so

extreme or persistent in nature as to rise to the level of “past persecution.”

      In sum, substantial evidence in the record supports the agency’s adverse

credibility decision and its removal decision. The BIA’s decision is, accordingly,

      PETITION DISMISSED, in part, and DENIED, in part.




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