Rizk v. Holder
| Decision Date | 03 January 2011 |
| Docket Number | No. 06-74213,06-74213 |
| Citation | 629 F.3d 1083 |
| Parties | George Gerges RIZK; Nadia Youssef Attia; Joseph George Gerges; John George Gerges, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ramsin Sheeno, Mansouri and Sheeno, Sherman Oaks, CA, attorney for the petitioners.
Daniel Glenn Lonergan, Office of Immigration Litigation, United States Department of Justice, Washington, DC, attorney for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A075-676-966, A075-674-142, A078-111-798, A078-111-799.
Before: DIARMUID F. O'SCANNLAIN, RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges.
George Gerges Rizk, the principal petitioner in this case, claims that the immigration judge (IJ) and Board of Immigration Appeals (BIA) erred in rejecting his asylum claim on the basis of an adverse credibility determination. Specifically, Rizk argues that he was not given a chance to explain the inconsistencies on which the IJ relied in finding him not credible. Because the record shows that Rizk did have ample opportunities to reconcile the numerous contradictions in his testimony, but failed to offer a reasonable and plausible explanation for them, the IJ's adverse credibility determination was supported by substantial evidence. We therefore deny his petition for review.
Rizk, a citizen of Egypt, entered the United States on December 6, 1998, as a nonimmigrant visitor for pleasure, with authority to remain in the United States until June 5, 1999. His wife, Nadia Youssef Attia (Attia), and two children, Joseph George Gerges (Joseph) and John George Gerges (John), entered the United States as nonimmigrant visitors on March 5, 1999, and were authorized to remain until September 4, 1999. In early 2000, all were issued Notices to Appear, charging them with being subject to removal under 8 U.S.C. § 1227(a)(1)(B) for having remained in the United States beyond the dates permitted by their visas. Rizk and his family conceded removability but sought relief in the form of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Rizk and his wife filed separate petitions for relief, and the children claimed derivative relief through each parent. See 8 C.F.R. § 207.7(a) (2010) ().
The IJ conducted an in-depth hearing over the course of three days. Rizk and Attia were the only witnesses, and each testified out of the hearing of the other. Their testimony focused on three separate incidents: the harassment and beating of their son Joseph for refusing to join in Islamic prayers, the break-in at the family's apartment, which led to Rizk's persecution by the police and prosecution for inciting sectarian chaos, and Attia's harassment by a Muslim, Mohammed Abdul Latif, culminating in her abduction and rape. For the reasons explained below, we focus mainly on the break-in incident.
The break-in and its aftermath are central to Rizk's claim of persecution. According to Rizk, on January 24, 1998, unknown perpetrators broke into the family's apartment, stole money and jewelry, and scrawled pro-Islamic slogans on the walls. After the police arrived to investigate, Attia accused Latif of committing the crime.The police took Rizk and Attia to the police station and interviewed them along with Latif. After preparing a report, the police detained Rizk overnight on the charge of "inciting sectarian chaos," allegedly because he accused a Muslim of breaking into and stealing from his apartment. The next day, the police transferred Rizk to State Security, where, Rizk asserted, he was interrogated, occasionally struck by officers, and given five minutes of electric shocks through his index fingers. He thereafter received letters requiring him to appear in court in connection with his prosecution on the incitement charge.
In a detailed, 37-page opinion, the IJ reviewed Rizk and Attia's testimony and detailed dozens of inconsistencies, including discrepancies as to times, dates, the sequence of events, and the identity of the individuals who participated in those events. The IJ pointed out internal inconsistencies, as well as inconsistencies between the stories offered by Rizk and Attia. 1 Most significantly, the petitioners' testimony contradicted the key piece of documentary evidence they had submitted: the police report on the break-in of their apartment. The IJ stated that "the unusual number of factual discrepancies present in the respondents' accounts, combined with the blatantly contradictory nature of those discrepancies, has left the respondents' representations dubious." In light of these numerous conflicts, the IJ determined that the petitioners were not credible, and indeed that their "testimony has left the Court in such disarray that it could not begin to discern the truth, if any, from the vast fallacies." Consequently, the IJ denied all of the petitioners' requested relief.
Following the IJ's rejection of their claims, petitioners appealed to the BIA. On December 29, 2003, the BIA "adopt[ed] and affirm[ed]" the IJ's opinion solely as to "the lead male respondent," i.e., Rizk. The BIA's opinion expressly did not address the appeals of Attia or the couple's children. Petitioners filed a timely petition for review of the BIA's decision.
On appeal, Attia argues that the BIA failed to address her challenge to the IJ's adverse credibility determination regarding her testimony. We agree. The BIA's opinion states: The opinion then upheld the IJ's adverse credibility as to the "respondent," and concluded that "the respondent's appeal is dismissed." In short, the BIA affirmed in full the IJ's decision as to Rizk, but did not mention Attia, John, or Joseph other than to include them in the definition of "respondents" (a term never again used in the opinion) and exclude them from the definition of "respondent."
At oral argument, the government asserted for the first time that the BIA did not address Attia's claims because they were not properly before it. According to the government, the petitioners' notice of appeal to the BIA addressed only Rizk's claims. Because Attia's claims were not exhausted, the government argues, we should dismiss her appeal for lack of jurisdiction. The record does not support this assertion. The petitioners' notice of appeal and supporting brief to the BIA lists the Alien Identification Number for each of the family members, repeatedly refers to the family collectively as "respondents" or "appellants," and refers specifically to the "female" appellant or respondent where appropriate. Accordingly, we conclude that Attia adequately appealed the IJ's decision and that we have jurisdiction over her petition.
Because the BIA's decision did not resolve Attia's appeal (and, consequently, did not resolve the cases of Joseph and John, who are eligible for derivative relief through Attia), we must grant her petition and remand her case (along with her children's) to the BIA for decision. "[W]here the BIA has not made a finding on an essential asylum issue, the proper course of action for a court of appeals is to remand the issue to the BIA for decision." Chen v. Ashcroft, 362 F.3d 611, 621 (9th Cir.2004) (citing INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002)). We therefore do not address Attia's additional challenges to the IJ's decision.
Rizk claims that the IJ's adverse credibility determination was not supported by substantial evidence. Where, as here, the BIA expressly adopts the IJ's decision, we review the IJ's findings as if they were the BIA's. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010). Because credibility determinations are findings of fact by the IJ, they "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (2000). "To reverse [such a] finding we must find that the evidence not only supports [a contrary] conclusion, but compels it." INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
We must uphold the IJ's adverse credibility determination "[s]o long as one of the identified grounds is supported by substantial evidence and goes to the heart of[the alien's] claim of persecution." Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003).2 The IJ "must havea legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief." Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994); accord Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006). Major inconsistencies on issues material to the alien's claim of persecution constitute substantial evidence supporting an adverse credibility determination. See Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir.2005). This general rule has two qualifications, however. First, minor inconsistencies regarding non-material and trivial details, such as typographical errors or inconsistencies in specific dates and times that lack a close nexus to the petitioner's asserted grounds of persecution, cannot form the exclusive basis for an adverse credibility determination. Id. at 1064. Of course, even minor inconsistencies going to the heart of a petitioner's claim may, when considered collectively, "deprive [the] claim of the requisite 'ring of truth,' " thereby supplying substantial evidence that will sustain the IJ's adverse credibility determination. Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir.2007) (quoting Kaur, 418 F.3d at 1067). Moreover, just as "repeated and significant inconsistencies" can deprive an alien's claim "of the requisite 'ring...
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