Bebri v. Mukasey

• Decision Date: 17 October 2008
• Docket Number: No. 07-2780.,07-2780.
• Citation: 545 F.3d 47
• Parties: Drini BEBRI, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

545 F.3d 47

Drini BEBRI, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-2780.

United States Court of Appeals, First Circuit.

Submitted September 9, 2008.

Decided October 17, 2008.

William P. Joyce and Joyce & Associates P.C. on brief for petitioner.

Gregory G. Katsas, Acting Assistant Attorney General, Anthony W. Norwood, Senior Litigation Counsel, and Shahrzad Baghai, Trial Attorney, on brief for respondent.

Before HOWARD, BALDOCK,^* and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Drini Bebri, is an Albanian national. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA) that affirmed a decision of an immigration judge (IJ) denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because the petitioner failed to renew the withholding of removal and CAT claims before the BIA, we treat those claims as abandoned. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.2004). Consequently, our sole focus is the asylum claim. After careful consideration of that claim, we deny the petition.

The petitioner entered the United States illegally on February 4, 2001. He immediately applied for asylum. An asylum officer interviewed him and referred his case to the immigration court.

After the petitioner amended his asylum application on May 16, 2002, the IJ convened an evidentiary hearing. Following that hearing, the IJ concluded that the petitioner's testimony was not credible and refused to grant asylum. The IJ premised her adverse credibility determination (and, hence, the denial of asylum) on perceived inconsistencies in the petitioner's presentation. We turn, then, to the petitioner's testimony.

The petitioner testified that, in 1999, he was an officer of the Democratic Party of Albania (PD). He started to receive unsigned letters threatening to kill him if he did not leave the party. He remained steadfast.

The linchpin of his account was an incident that he said occurred in October of 2000. As he described it, he was savagely beaten by a group of masked men after working in a parliamentary election. His assailants threatened further violence if he did not stop toiling for the PD. The petitioner finally escaped from his tormentors and, shortly thereafter, traveled to the Albanian capital (Tirana). He obtained a counterfeit Italian passport there. Using this bogus credential, he embarked on a lengthy peregrination through Italy, Belgium, France, Spain, Venezuela, and Colombia before flying into Miami.

The IJ discerned serious discrepancies in this account. The most glaring contradictions involved the linchpin event: the circumstances of the supposed beating. In his initial asylum application, the petitioner had described two incidents, not one. He said that "approximately two-three days" after the election, he was attacked by two men; that he was beaten so severely that he needed to be hospitalized; and that, seven days later, he was again confronted by the same men. In his amended asylum application, however, he stated that he had experienced only one encounter—he was beaten and threatened "at a rally." When testifying before the IJ, the petitioner admitted that this was a lie; instead, he vouchsafed that the beating occurred while he was walking home from the parliamentary election after the votes had been counted.

This version itself cast further doubt on his veracity. The petitioner testified that the beating lasted about twenty minutes and did not require hospitalization. Later in the hearing, however, he testified to leaving the polls before the votes were counted and being beaten for "about three hours."

The petitioner had no plausible explanation for any of these inconsistencies, and the IJ thought that they were telling. She also questioned the depth of the petitioner's commitment (if any) to the PD. And, finally, she observed that other parts of the petitioner's story, though consistent, seemed far-fetched. In this regard, she pointed to the petitioner's assertions that he had walked for four to five hours after absorbing a three-hour beating; that he had developed, virtually instantaneously and without assistance, an effective escape route that allowed an alien with no legitimate passport to enter the United States; and that he had financed his entire sojourn, flying on commercial aircraft, for under $3,500.

Based on these and similar findings, the IJ denied the petitioner's application for asylum and ordered his removal. On November 7, 2007, the BIA affirmed. This timely petition for judicial review followed.

Following a final order of removal, this court ordinarily reviews the decision of the BIA. But where, as here, the BIA adopts portions of the IJ's opinion, we review those portions of the IJ's opinion as well. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir.2004). Factual findings, including credibility determinations, are reviewed under the substantial evidence standard. Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir.2007). Under this deferential standard, contested findings will stand as 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Unless the evidence "compels a contrary conclusion, the findings must be upheld." Id.

Asylum is available only to a refugee. A refugee is a person who is unable or unwilling to return to his or her homeland "because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). It is an asylum-seeker's burden to prove that he or she is a refugee within the statutory definition. See Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir.2007).

To carry this burden, an alien's own testimony may suffice. See Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.2004). But an alien's testimony need not be taken at face value; if the trier deems that testimony speculative or unworthy of credence, "it may be either disregarded or sharply discounted." Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.2005). In that way, "an adverse credibility determination can prove fatal" to an asylum claim. Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir.2007).

Either past persecution or a well-founded fear of future persecution on account of a protected ground is a sine qua non for asylum. 8 U.S.C. § 1101(a)(42)(A). In the case at hand, the petitioner relies on a claim of past persecution to give rise to a reasonable possibility that such persecution will recur if he is repatriated. See Makhoul, 387 F.3d at 81. His showing of past persecution hinges on the linchpin incident: the savage beating that he claims was administered to punish him for his political beliefs. Apart from the petitioner's unsupported allegations of anonymous threats, that is the only tangible evidence of any past persecution specific to him.

The IJ concluded that both the beating and the petitioner's professed degree of political participation were apocryphal. Accordingly, she denied his asylum application. The petitioner assigns error in two respects. First, he asserts that the IJ based her adverse credibility determination on matters that were not central to the merits of the asylum claim. Second, he argues that the IJ's adverse credibility determination is not supported by the record as a whole. We address those plaints sequentially.

The premise on which the first claim of error rests—the so-called "heart of the matter" rule—is theoretically sound.¹ Under the heart of the matter rule, discrepancies relied upon by the trier in making adverse credibility determinations must "pertain to facts central to the merits of the alien's claims, not merely to peripheral or trivial matters." Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir.2006). Put another way, an adverse credibility determination "cannot rest on trivia but must be based on discrepancies that involved the heart of the asylum claim." Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.1999) (citation and internal quotation marks omitted).

The conclusion that the petitioner seeks to have us draw from this premise, however, is not sound. He attempts to depict the inconsistencies that permeated his shifting statements as minor differences of time and place. But every case is different; and here, that characterization is misleading. Although most of the discrepancies concern the time, place, or manner of various details incident to the alleged beating, they go to the heart of the matter. We explain briefly.

The petitioner variously described the beating as having taken place at a rally or during a stroll home from the polls. He said, at different times, that it occurred both before and after the votes were tallied. He estimated its duration on one occasion as twenty minutes and on another as three hours. He vacillated as to whether or not his injuries required hospitalization. And he first described a pair of incidents, and then retracted to a single incident.

Viewed collectively and in context,² the petitioner's wildly inconsistent statements about the timing, location, duration, and intensity of the alleged beating would raise a serious question in the mind of even the most sanguine listener as to whether the petitioner was beaten at all. Such inconsistencies surely can ground a finding that an alien's testimony is lacking in veracity. See, e.g., Pan, 489 F.3d at 86. What we wrote in Pan is equally apposite here: "Some of these inconsistencies,...