Floyd Abdul, et al v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioners Floyd Herbert Abdul and Sharon Shahadat. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Petition DISMISSED in part, DENIED in part. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-12337

Date Filed: 07/20/2017

Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12337
Non-Argument Calendar
________________________
Agency No. A077-640-800

FLOYD HERBERT ABDUL,
SHARON SHAHADAT,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 20, 2017)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 16-12337

Date Filed: 07/20/2017

Page: 2 of 9

Floyd Abdul and Sharon Shahadat petition for review of the Board of
Immigration Appeals (BIA) decision denying their applications for asylum and
withholding of removal under the Immigration and Nationality Act (INA) and the
Convention Against Torture. The BIA, affirming the decision by the Immigration
Judge (IJ), concluded that Abdul’s and Shahadat’s applications for asylum were
untimely and that Abdul and Shahadat failed to establish eligibility for withholding
of removal under either the INA or the Convention Against Torture. After careful
consideration of the record and the parties’ briefs, we dismiss in part and deny in
part.
I
Abdul and Shahadat are married, and both are natives and citizens of
Zimbabwe. Abdul entered the United States in April 1999 as a non-immigrant
visitor with authorization to remain in the United States until October 1999, while
Shahadat entered the United States in April 2001 as a non-immigrant visitor with
authorization to remain until October 2001. Both Abdul and Shahadat stayed in
the United States beyond their authorized time periods, leading the Department of
Homeland Security to commence removal proceedings against Abdul in October
2002 and against Shahadat in May 2003. Thereafter, Abdul and Shahadat filed
applications for asylum and withholding of removal claiming that, if they are

2

Case: 16-12337

Date Filed: 07/20/2017

Page: 3 of 9

removed to Zimbabwe, they will be persecuted and tortured because of their
political opinions.
In 2013, an IJ held a hearing on Abdul’s and Shahadat’s requests for asylum
and withholding of removal. Abdul and Shahadat both testified at the hearing, and
they offered various documents into evidence. The documents included, among
other things, a Department of State Human Rights Report for Zimbabwe, e-mails
between Abdul and members of a Zimbabwean opposition party, records indicating
that Abdul and Shahadat attended meetings for a United States branch of the
Zimbabwean opposition party, and several affidavits from friends and family
members.
Abdul testified that, just prior to entering the United States in 1999, he was
harassed by members of the Zimbabwean government because of his involvement
with a trade union. According to Abdul, on one occasion police officers beat him
and his roommate, forcing them to seek medical attention,1 and on another
occasion he was abducted from his apartment.2 Abdul indicated that this
harassment contributed to his decision to visit the United States, but he also
indicated that he came to the United States for “holiday.” After entering the
United States, Abdul married a United States citizen, and because of the marriage,
1

An affidavit from Abdul’s roommate undermines Abdul’s testimony about this alleged
encounter with police. The affidavit discusses the encounter but provides no indication that
Abdul and the roommate sought medical attention.
2
Although Abdul lived with his roommate at the time of the alleged abduction, the
roommate’s affidavit does not mention the abduction.
3

Case: 16-12337

Date Filed: 07/20/2017

Page: 4 of 9

he decided to stay in the country beyond his authorized time period. However,
Abdul divorced the United States citizen in 2001 and married Shahadat in 2002. In
testifying about his relationship with Shahadat, Abdul at one point stated that he
met her in 1998 in Zimbabwe but at another point stated that he met her in the
United States in summer 2001.
Abdul also testified that, while living in the United States, he has become
active in Zimbabwean politics and that he fears the Zimbabwean government will
persecute him based on his political opinions if he is removed to Zimbabwe.
Abdul explained that in June 2003 he started supporting a Zimbabwean opposition
party and criticizing the Zimbabwean government. He expressed his views about
the party and the government on the internet and through letters to Zimbabwean
government officials. As evidence that he will face persecution for these activities
and his political opinions if he returns to Zimbabwe, Abdul noted that in response
to his internet posts he has been threatened and has received “negative comments.”
Shahadat testified that she met Abdul in Zimbabwe in 1998 and married him
in 2002. She stated that she is affiliated with the same opposition party as Abdul
and that she fears that, because of Abdul’s political activities, she will be
persecuted if she returns to Zimbabwe.
The IJ denied Abdul’s and Shahadat’s applications for asylum and
withholding of removal. The IJ first concluded that Abdul’s and Shahadat’s
4

Case: 16-12337

Date Filed: 07/20/2017

Page: 5 of 9

applications for asylum are time barred. Next, the IJ found that Abdul and
Shahadat failed to offer sufficient evidence to establish eligibility for withholding
of removal under either the INA or the Convention Against Torture. The evidence
offered by Abdul and Shahadat, the IJ concluded, lacked both credibility and
probative value. The IJ, for example, determined that Abdul’s testimony was not
reliable because it included various inconsistencies and, during the testimony,
Abdul was evasive of simple questions and often nonresponsive. The IJ also
determined that the documents submitted by Abdul and Shahadat were “largely
self-made and ha[d] no proof of authenticity.”
The BIA affirmed the IJ’s decision. The IJ, the BIA found, did not err in
finding that Abdul’s and Shahadat’s applications for asylum are time barred, nor
did the IJ err in finding that Abdul and Shahadat failed to establish eligibility for
withholding of removal under either the INA or the Convention Against Torture.
II
In seeking review of the BIA’s decision, Abdul and Shahadat argue that the
BIA erred in affirming the IJ’s findings that (1) their applications for asylum are
time barred, (2) Abdul’s testimony was not credible, and (3) they failed to establish
eligibility for withholding of removal under either the INA or the Convention
Against Torture. We address each argument in turn.
A
5

Case: 16-12337

Date Filed: 07/20/2017

Page: 6 of 9

We must dismiss Abdul and Shahadat’s challenge to the BIA’s time-barred
finding because our court does not have jurisdiction to review the finding. We
have repeatedly held that 8 U.S.C. § 1158(a)(3) divests us of jurisdiction to review
a BIA determination that an application for asylum is time barred. See, e.g.,
Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per
curiam); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
B
The BIA did not err in affirming the IJ’s finding that Abdul’s testimony was
not credible. Applying the “highly deferential” substantial evidence test, we
cannot conclude that the BIA committed reversible error. See Delgado v. U.S.
Att’y Gen., 487 F.3d 855, 860 (11th Cir. 2007) (per curiam); Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (“[C]redibility determinations . . . are
reviewed under the substantial evidence test.” (internal quotation marks omitted)).
Under the substantial evidence test, we must affirm a BIA credibility
determination “if it is supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” See Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (internal quotation marks omitted). This standard is “highly
deferential.” Id. We take the evidence in the “light most favorable” to the BIA’s
determination, “draw[ing] all reasonable inferences in favor of” the determination.
Forgue, 401 F.3d at 1286 (internal quotation marks omitted). And “[w]e may
6

Case: 16-12337

Date Filed: 07/20/2017

Page: 7 of 9

reverse only when the record compels it.” Li Shan Chen v. U.S. Att’y Gen., 672
F.3d 961, 964 (11th Cir. 2011) (per curiam) (internal quotation marks omitted).
Substantial evidence supports the BIA’s credibility determination. First,
Abdul’s testimony, construed in the light most favorable to the BIA’s
determination, was both internally inconsistent and inconsistent with documents
that Abdul himself and Shahadat submitted to the IJ. See 8 U.S.C. §
1158(b)(1)(B)(iii) (“[A] trier of fact may base a credibility determination on the . . .
consistency between the applicant’s or witness’s written and oral statements . . . ,
the internal consistency of each such statement, [and] the consistency of such
statements with other evidence . . . , without regard to whether an inconsistency . . .
goes to the heart of the applicant’s claim, or any other relevant factor.”). Second,
the IJ specifically found that Abdul’s demeanor during his testimony indicated that
the testimony was not reliable. See id. (“[A] trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of the applicant . . . .”);
Todorovic v. U.S. Att’y Gen., 621 F.3d 1318, 1324–25 (11th Cir. 2010) (“[W]e
afford great deference to an IJ’s assessment of ‘demeanor’ [because the IJ] . . .
observ[es] the [witness] and assess[es] his or her tone and appearance.”).
C
The BIA did not err in affirming the IJ’s finding that Abdul and Shahadat
failed to establish eligibility for withholding of removal under either the INA or the
7

Case: 16-12337

Date Filed: 07/20/2017

Page: 8 of 9

Convention Against Torture. We review the BIA’s withholding-of-removal
determination under the substantial evidence test. See Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1259 (11th Cir. 2006) (per curiam) (reviewing a withholding-ofremoval determination under the INA for substantial evidence); Najjar, 257 F.3d at
1304 (reviewing a withholding-of-removal determination under the Convention
Against Torture for substantial evidence). And taking the record in the light most
favorable to the BIA’s determination, see Forgue, 401 F.3d at 1286, the
determination is supported by substantial evidence.
“To obtain withholding of removal [under the INA], an applicant must
establish that her life or freedom would be threatened [upon removal] because of
her race, religion, nationality, membership in a particular social group, or political
opinion.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (internal
quotation marks omitted). And to obtain withholding of removal under the
Convention Against Torture, an applicant must “establish that it is more likely than
not that . . . she would be tortured if removed to the proposed country of removal.”
See Najjar, 257 F.3d at 1303 (internal quotation marks omitted). However, the
evidence, when taken in the light most favorable to the BIA’s determination, does
not establish that Abdul and Shahadat will be singled out for persecution or torture
in Zimbabwe. Abdul and Shahadat submitted evidence showing that, while living
in the United States, they have been involved with a Zimbabwean opposition party,
8

Case: 16-12337

Date Filed: 07/20/2017

Page: 9 of 9

and they have offered evidence showing that Zimbabwean government officials
often persecute political activists. But because Abdul’s testimony was not credible
and many of the documents that Abdul and Shahadat offered into evidence are of
limited probative value, the record does not establish that “it is more likely than not
[that they] will be persecuted or tortured upon being returned to” Zimbabwe. See
Tan, 446 F.3d at 1375 (internal quotation marks omitted). The record shows
neither that Zimbabwean government officials are aware of Abdul’s and
Shahadat’s political activity in the United States nor that Abdul and Shahadat will
continue their political activity in Zimbabwe nor that Abdul and Shahadat
experienced past persecution in Zimbabwe because of their political opinions.
III
We dismiss Abdul and Shahadat’s petition to the extent that it seeks review
of the BIA’s time-barred determination, and we deny the remainder of the petition.
DISMISSED IN PART, DENIED IN PART.

9