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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-13504
                         Non-Argument Calendar
                       ________________________

                        Agency No. A079-489-156


ALEKSANDR SERGEYEVICH NESTERENKO,
YULIYA YURYEVNA NESTERENKO,
MARIYA ALEKSANDROVNA NESTERENKO,

                                                                     Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.
                       ________________________

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

                              (May 7, 2013)

Before CARNES, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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       Lead petitioner Aleksandr Sergeyevich Nesterenko, along with his wife

Yulia and their minor daughter Mariya, seeks review of the Board of Immigration

Appeals’ affirmance of the Immigration Judge’s denial of his application for

asylum, withholding of removal, and relief under the United Nations Convention

Against Torture (CAT). See 8 U.S.C. § 1158(a); 8 U.S.C. § 1231(b)(3); 8 C.F.R. §

208.16(c). The petitioners contend that the IJ’s adverse credibility determination,

which the BIA adopted, is not supported by substantial evidence and that

Aleksandr’s testimony was therefore sufficient to establish past persecution in his

native country of Russia on account of his Baptist faith, as required to warrant the

grant of asylum and withholding of removal. The petitioners alternatively

maintain that the BIA erred in failing to grant such relief based on a well-founded

fear of future persecution, which they argue Aleksandr established through record

evidence documenting discrimination, harassment, and violence against minority

religious groups in Russia. 1

                                               I.

       The petitioners, natives and citizens of Russia, entered the United States on

July 10, 2000, as nonimmigrant visitors with authorization to remain in the country

until January 9, 2001. The petitioners stayed in the United States past the


       1
        The petitioners do not specifically address or challenge the denial of their request for
CAT relief, and have therefore abandoned the issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005).
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authorized time period and later conceded removability. With the aid of a Russian

interpreter, Aleksandr applied for asylum, withholding of removal, and CAT relief,

including his wife and minor daughter as derivative beneficiaries. Aleksandr

claimed that, on account of his evangelical Baptist faith, he suffered past

persecution and had a well-founded fear of future persecution in Russia,

particularly at the hands of the Russian National Unity Party (RNU), a neo-fascist

paramilitary organization committed to maintaining both ethnic purity and strict

adherence to Russian Orthodox Christianity.

      Aleksandr based his claim for relief on seven discrete incidents of past

mistreatment in Russia, two of which he neglected to disclose in his asylum

application, credible fear interview, or both. His accounts of several of these

incidents were marked by varying degrees of apparent inconsistencies. Aleksandr

identified the following instances of abuse: (1) a February 1993 incident where he

and other members of his Baptist congregation were beaten by RNU members for

distributing religious materials in a public square, and then detained by the local

police for three days for illegally distributing such materials; (2) a January 1994

incident in which RNU members vandalized and ransacked his business; (3) a

1997 incident in which he and his driver were stopped by RNU members and

viciously beaten with sticks; (4) an incident in 1997 or 1998 where he was stopped

by a police officer, falsely accused of drug possession, and detained for several


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hours; (5) a February 1999 incident in which RNU members grabbed Mariya, then

seven months old, and repeatedly tossed her into the air while threatening to drop

her onto the pavement; (6) a 2000 incident in which RNU members set his church

ablaze and assaulted the parishioners as they evacuated the burning building; and

(7) the disappearance of his pastor shortly after the arson attack.

      Aleksandr also maintained that, from February 1993 onward, he sporadically

received threatening telephone calls and fliers from unknown persons, who he

believed were affiliated with the RNU, which demanded that he either convert to

Russian Orthodox Christianity, the dominant faith in the country, or renounce his

Baptist religion altogether. His mother continued to receive threatening phone

calls even after Aleksandr and his family left for the United States, and in 2001 her

mailbox was set on fire and “Death to sectarians” and a swastika were spray

painted on her apartment door.

      In support of their asylum application, the petitioners submitted various

governmental reports and news articles, which generally confirmed that members

of minority religious groups in Russia, including Baptists and other evangelical

Christians, were subject to discrimination, harassment, and occasional physical

attacks, particularly by skinheads, nationalists, and right-wing extremists. The

U.S. State Department’s 2007 reports on human rights practices and religious

freedom in Russia noted incidents of harassment and violence directed at religious


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minorities, including cases of vandalism and arson attacks on non-Orthodox

Christian churches. The State Department’s 2005 report on religious freedom

documented similar hostility, harassment, and instances of religiously motivated

violence directed at evangelical Christians and other non-Orthodox religious

groups. The report specifically mentioned incidents of vandalism, bombings, and

arson attacks on Baptist and Pentecostal churches located in disparate regions

throughout the country. Additional reports and new articles ranging from 2001

through 2005 documented church burnings and physical attacks on members of

Protestant denominations, which were rarely investigated by the police and seldom

led to the arrest of suspects.

      The IJ initially granted the petitioners’ request for asylum, concluding that

Aleksandr credibly testified about the mistreatment he suffered in Russia, that the

discrepancies between his hearing testimony and earlier statements were not

significant enough to undermine his credibility, and that the cumulative impact of

the identified incidents of abuse amounted to past persecution on account of his

religious faith, even though none of the incidents individually reached that level.

The BIA, on the government’s appeal, found the credibility determination

inadequate because the IJ failed to explain why the inconsistencies did not

significantly undermine Aleksandr’s credibility, and failed to make an express

determination as to whether any of the inconsistencies were “key” to Aleksandr’s


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asylum claim. The BIA accordingly remanded the case for a new credibility

determination.

      On remand, the IJ made individual credibility determinations with respect to

each of the alleged incidents of past mistreatment, and then rendered an

overarching adverse credibility finding based on the combined effect of numerous

purported inconsistencies between Aleksandr’s hearing testimony, asylum

application, and responses at his credible fear interview. While the IJ found that

Aleksandr consistently and credibly testified about his Baptist faith, the beating

and three-day detention he experienced in February 1993, and the threatening

communications he received thereafter, the IJ rejected the remaining portions of

his testimony as not credible. The IJ expressly relied on perceived discrepancies

concerning the ownership and merchandise distributed by the allegedly ransacked

business, the date on which Aleksandr and his driver were attacked by RNU

members, the date and length of time the police detained him for allegedly

possessing drugs, and whether he was physically present during the alleged church

burning. The IJ also identified several apparent inconsistencies in Aleksandr’s

account of the 1999 incident involving his infant daughter, including his

description of the uniforms worn by the RNU members, whether his daughter was

snatched from his hands or a stroller, whether the RNU members physically

assaulted his family, and whether his wife was present at the time. The IJ


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emphasized that Aleksandr failed to mention the alleged church burning in his

asylum application, and failed to disclose the alleged disappearance of his pastor in

either his application or credible fear interview. Based solely on the adverse

credibility determination, the IJ concluded that Aleksandr failed to carry his burden

of demonstrating his eligibility for asylum, withholding of removal, or CAT relief.

      The BIA expressly adopted and affirmed the IJ’s decision, and highlighted

several of the discrepancies cited by the IJ in support of the adverse credibility

determination. The BIA concluded that Aleksandr’s lack of credibility on critical

aspects of his claim was dispositive on the issue of whether he had established

eligibility for asylum, withholding of removal, and CAT relief, and that there was

no need to further address whether he suffered past persecution or had a well-

founded fear of future persecution upon his return to Russia.

                                          II.

      Where, as here, the BIA issues its own decision, but expressly adopts the

IJ’s opinion or reasoning, we review both the BIA’s and IJ’s decisions. Xia v. U.S.

Att’y Gen., 608 F.3d 1233, 1239 (11th Cir. 2010). Administrative factual findings,

including credibility determinations, are reviewed under the highly deferential

substantial evidence test, which requires us to affirm the agency’s decision if it is

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

considered as a whole.” Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344


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(11th Cir. 2008) (quotation marks omitted). We may reverse a factual finding or

credibility determination only when the record compels reversal; the fact that the

record may support a contrary conclusion is not enough. Id. at 1345.

      An asylum applicant must, with specific and credible evidence, establish

either past persecution or a well-founded fear of future persecution on account of

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

opinion. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286–87 (11th Cir. 2005). A

sufficient showing 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). However, even

in the absence of past persecution, an applicant may still be entitled to relief if he

can demonstrate a well-founded fear of persecution by showing either “a

reasonable possibility [that he] would be singled out individually for persecution,”

or that he is a member of a group that is subject to a “pattern or practice” of

persecution in his native country. 8 C.F.R. § 208.13(b)(2)(iii). To qualify for

withholding of removal, an alien must satisfy the more stringent standard of

demonstrating that it is “more likely than not that [he] will be persecuted or

tortured” upon being returned to his country. Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1232 (11th Cir. 2005).

      An adverse credibility determination must be supported by “specific, cogent

reasons,” and indications of reliable testimony include “consistency on direct


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examination, consistency with the written application, and the absence of

embellishments.” Li Shan Chen v. U.S. Att’y Gen., 672 F.3d 961, 964 (11th Cir.

2011) (quotation marks omitted). 2 Once an adverse credibility determination is

made, the burden is on the applicant to show that it “was not supported by specific,

cogent reasons or was not based on substantial evidence.” Shkambi v. U.S. Att’y

Gen., 584 F.3d 1041, 1049 (11th Cir. 2009) (quotation marks omitted). An adverse

credibility determination alone may be sufficient to support the denial of asylum or

withholding of removal, but only if the applicant produces no evidence other than

his testimony. Li Shan Chen, 672 F.3d at 964; Forgue, 401 F.3d at 1287. If an

applicant “produces other evidence of persecution, whatever form it may take, the

IJ must consider that evidence, and it is not sufficient for the IJ to rely solely on an

adverse credibility determination in those instances.” Forgue, 401 F.3d at 1287.

       The petitioners contend that the omissions and inconsistencies identified by

the IJ in support of his adverse credibility determination are either immaterial, the

result of poor communication or translation, or are not inconsistencies at all. We

agree with their assessment, but only to a limited extent that does not compel

       2
          Because the petitioners’ asylum application was filed before May 11, 2005, their claims
for immigration relief are not governed by the REAL ID Act of 2005, which provides that an
adverse credibility determination may be based on inconsistencies regardless of whether they go
“to the heart of the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Shkambi v. U.S. Att’y
Gen., 584 F.3d 1041, 1049 n.7 (11th Cir. 2009). We have never decided in a published opinion
whether adverse credibility determinations in pre-REAL ID Act cases must be based on
inconsistencies that go to the heart of an applicant’s claim, and we need not resolve that issue in
this case because, as we explain later, a number of the inconsistencies identified by the IJ and the
BIA directly relate to the petitioners’ allegations of past persecution.
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reversal of the adverse credibility determination. Two of the purported

inconsistencies cited by the IJ are not supported by the record and, as such, are not

actual inconsistencies. The IJ concluded that Aleksandr gave inconsistent

descriptions about the uniforms worn by the RNU members during the 1999

incident involving his daughter because he testified that the men were wearing

“winter camouflage clothes,” but stated in his credible fear interview that they

wore “black uniforms.” During his hearing testimony, however, Aleksandr

promptly clarified that the RNU members wore dark security guard uniforms

adorned with swastikas, which was consistent with his earlier statements. The

purported inconsistency stemmed entirely from the IJ’s view that winter

camouflage referred to white-colored clothing. But given Aleksandr’s prompt

explanation about what he meant by winter camouflage and his otherwise

consistent statements that the RNU members wore dark uniforms, the IJ’s

interpretation of the phrase “winter camouflage clothing” was unreasonable and

based solely on speculation or conjecture. See Tang v. U.S. Att’y Gen., 578 F.3d

1270, 1278 (11th Cir. 2009) (noting that an adverse credibility determination must

rest on more than speculation, conjecture, or personal perceptions).

      Similarly, the IJ found that Aleksandr’s hearing testimony failed to mention

the presence of his wife during this incident, which purportedly conflicted with his

asylum application. Although Aleksandr did not specifically refer to his wife


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during his testimony on direct examination, he noted that RNU members

threatened to “kill our kids” and “scolded us” for subscribing to a minority

religious creed, and he later mentioned on cross-examination that his wife was

pushing their daughter in a stroller when the RNU members first approached them.

The record, therefore, does not support the IJ’s determination that Aleksandr’s

hearing testimony and asylum application offered inconsistent accounts about

whether his wife was present during the particular incident.

      Two other discrepancies cited by the IJ are supported by the record, but are

not material enough, when viewed in isolation, to constitute a reasonable or cogent

basis for discrediting Aleksandr’s testimony. See Todorovic v. U.S. Att’y Gen.,

621 F.3d 1318, 1326 (11th Cir. 2010) (explaining that an inconsistency may

constitute substantial evidence to support an adverse credibility determination

where it is “inconsistent enough or material enough that rejecting the applicant’s

entire account would be a ‘reasonable’ decision for an IJ to make”). The IJ wholly

rejected Aleksandr’s account of the 1997 incident in which he was viciously beaten

by RNU members based solely on a discrepancy about whether the attack occurred

in August of that year, as indicated in Aleksandr’s hearing testimony, or June of

that year, as indicated during his credible fear interview. At each stage of the

proceedings, however, Aleksandr gave otherwise consistent accounts of the attack,

and he explained at the merits hearing that he could not recall the exact dates of


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events that occurred more than eight years earlier. Under the circumstances, a

minor discrepancy concerning the precise month in which the incident took place

does not provide a reasonable basis for discounting Aleksandr’s testimony about

the entire episode as not credible. Likewise, the IJ pointed to an inconsistency

about whether Aleksandr’s daughter was snatched from his hands, as indicated in

his asylum application, or a stroller, as suggested in his hearing testimony. The

distinction between “hands” and a “stroller” does not constitute a material

inconsistency in Aleksandr’s account of the incident, particularly given that

Aleksandr’s asylum application was translated into English by a Russian

interpreter and the English term “hands,” when used in conjunction with the act of

snatching or grabbing, is often employed in a metaphorical sense.

      Nevertheless, the BIA and the IJ identified a number of actual

inconsistencies that, either individually or collectively, were significant enough to

constitute specific, cogent reasons to support their adverse credibility

determination. See Shkambi, 584 F.3d at 1049. The IJ and the BIA accurately

noted that Aleksandr provided conflicting statements regarding the date and length

of time that the police allegedly detained him. His asylum application indicated

that he was detained for “a whole day” and released “after 24 hours,” while he later

testified that his detention lasted approximately three or four hours. He also

asserted at various times, including on cross-examination, that the incident


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occurred in 1997, while his testimony on direct examination indicated that it

happened in 1998. There was also a discrepancy with regard to whether he and his

wife were physically assaulted during the 1999 incident involving his infant

daughter. Although Aleksandr stated in his credible fear interview that the RNU

members “hit [his] family,” he did not mention any physical abuse in his asylum

application or hearing testimony.

      Furthermore, Aleksandr offered inconsistent, or at least confusing, accounts

about the nature and ownership of the business that was allegedly ransacked by

RNU members. During the merits hearing, Aleksandr testified that he opened the

business with other members of his congregation, and that it sold food and clothing

and distributed religious materials on behalf of their church. In his earlier

statements, however, Aleksandr made no mention of the fact that he opened the

business with fellow church members or that the company distributed religious

materials, and he inconsistently described the business as selling automotive parts

instead of food and clothing. He also suggested during his credible fear interview

that he was physically present during the alleged arson attack on his church in

2000, stating that RNU members “lit us on fire” and started to “beat us” after “[w]e

broke the windows [of the church] to escape,” though he later testified that he did

not arrive at the church until after the relevant events took place. As the IJ noted,

he also failed to disclose the alleged church burning in his asylum application, and


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failed to mention the alleged disappearance of his congregation’s pastor in either

the application or his credible fear interview.

      Aleksandr offered explanations for some of these discrepancies before the

BIA, which he now reiterates, asserting that: (1) he used the phrase “a whole day”

in a figurative sense when recounting his detention, which his Russian interpreter

mistakenly interpreted to mean a 24-hour period; (2) he used the terms “we” and

us” when describing the arson attack in his credible fear interview to broadly refer

to his “religious brethren”; and (3) it was unlikely that the asylum officer would

have asked about the alleged disappearance of his pastor during the credible fear

interview when he did not disclose the incident in his asylum application. While

these explanations might be plausible, they do not account for all of the material

discrepancies cited by the IJ. Nor do they otherwise compel reversal of the adverse

credibility determination. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1223 (11th

Cir. 2006) (concluding that, although an asylum applicant offered tenable

explanations for inconsistencies, those explanations would not compel a reasonable

fact finder to reverse the IJ’s adverse credibility determination).

      The cumulative impact of several of the inconsistencies cited by the BIA and

IJ, which are both supported by the record and relate to critical aspects of

Aleksandr’s claimed mistreatment in Russia, adequately supports the adverse

credibility determination. In turn, the record does not compel the conclusion that


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the petitioners have met their burden of establishing past persecution in Russia.3

Although the governmental reports and news articles submitted by the petitioners

indicate that religious minorities are subject to discrimination, harassment, and

occasional acts of violence in Russia, that evidence did not corroborate the

individual incidents of mistreatment that Aleksandr claimed to have suffered.

       However, the adverse credibility determination was not by itself sufficient to

dispose of the petitioners’ claims for asylum or withholding of removal. Even in

the absence of past persecution, an applicant may be entitled to asylum if he

possesses a well-founded fear of future persecution, which can be satisfied by

showing membership in a group subject to a pattern or practice of persecution, or

he may eligible for withholding of removal if it is more likely than not that he will

suffer such persecution. See 8 C.F.R. §§ 208.13(b)(2)(iii), 208.16(b)(2). At the

very least, the governmental reports and news articles submitted by the petitioners

suggest that members of non-Russian-Orthodox religious groups, including

Baptists, may be subject to mistreatment amounting to persecution. The BIA’s and

IJ’s adverse credibility finding did not relieve them of their duty to meaningfully

consider this documentary evidence and make adequate findings about the

likelihood of future persecution on account of Aleksandr’s unquestioned religious
       3
         The petitioners do not argue that the past incidents of abuse credited by the IJ, including
the threatening communications and the battery and three-day detention Aleksandr experienced
in 1993, are enough to amount to past persecution. As such, they have abandoned any challenge
based solely on these events to the BIA’s and IJ’s finding of a lack of past persecution. See
Sepulveda, 401 F.3d at 1228 n.2.
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faith. See Forgue, 401 F.3d at 1287; Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375

(11th Cir. 2006) (noting that the BIA and IJ must give “reasoned consideration” to

an alien’s application and make “adequate findings”).

      Although the IJ generally referred to the documentary materials the

petitioners submitted, neither he nor the BIA considered whether those materials

were sufficient to show that Aleksandr has a well-founded fear of future

persecution, or is likely to suffer such persecution, on account of his religion if

returned to Russia, particularly in light of the specific incidents of past

mistreatment that they found credible. Because the BIA and IJ did not adequately

consider whether the petitioners are eligible for asylum or withholding of removal

based on the likelihood of future persecution, we grant the Nesterenkos’ petition

for review, vacate the BIA’s decision, and remand to the BIA for the limited

purpose of allowing it to make these determinations in the first instance. See

Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1236 (11th Cir. 2007)

(“[W]hen the IJ or BIA has not made findings of fact or has not applied the law to

those facts, appellate courts should remand to the allow the IJ to make such

determinations in the first instance.”).

      PETITION GRANTED; VACATED AND REMANDED.




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