Jabri v. Holder

• Decision Date: 16 March 2012
• Docket Number: No. 10–1616.,10–1616.
• Citation: 675 F.3d 20
• Parties: Abdallah JABRI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

675 F.3d 20

Abdallah JABRI, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–1616.

United States Court of Appeals, First Circuit.

Heard June 9, 2011.Decided March 16, 2012.

Robert B. Huntington, with whom Carlos E. Estrada was on brief, for petitioner.

Charles S. Greene, III, Attorney, Office of Immigration Litigation, Civil Division, with whom Tony West, Assistant Attorney General, Civil Division, and Mark C. Walters, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Petitioner Abdallah Jabri, a native and citizen of Jordan, seeks review of a Board of Immigration Appeals (“BIA” or “Board”) order denying him asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).¹ The Board's order upheld the determination of an immigration judge (“IJ”) that Jabri's claim was not credible and that he had therefore failed to establish eligibility for relief. Jabri's principal contention is that this determination was based on inappropriate conclusions regarding the credibility of his claim. After careful consideration of the agency decisions and a close review of the record, we vacate and remand for additional proceedings.

I.

Jabri entered the United States together with his immediate family in 1997, when he was eight years old. The family members subsequently overstayed their visas and settled in New Hampshire. In April 2009, removal proceedings were initiated against Jabri, who conceded removability but cross-applied for asylum, withholding of removal, and protection under CAT.

Jabri's applications center around his claimed conversion from Islam to Christianity in late 2008. In an affidavit and at a hearing held before an IJ, Jabri explained that although he was born into a Muslim family, he grew up in a predominantly Christian community where he was routinely exposed to Christian teachings and customs. He stated that as he explored his religious identity, first as a boy of high school age and then as a young adult, he felt increasingly drawn to the tenets of Christianity. He testified to attending Bible studies and Christian church services and holiday celebrations intermittently beginning in 2004. Following a year of intensified exploration, and feeling that he “was falling off track” and “needed a permanent faith in his life,” ² Jabri claims that he officially converted to Christianity on December 2, 2008, when he recited a sinner's prayer and took communion at a Pentecostal church.

Jabri asserts that he will be persecuted on account of his conversion if returned to Jordan. There was evidence that the Jordanian constitution stipulates that Muslims' personal status is governed by Islamic law, according to which apostasy may be punished by an inability to own property, find employment, marry, or maintain custody of one's children. Jabri fears that his paternal grandfather, who Jabri says is a strongly religious and prominent member of the Muslim community with strong ties to the Jordanian government, will wield his influence to ensure that the full panoply of such consequences come to bear. Moreover, he testified that he fears that his grandfather may provoke an honor killing to protect the well-known family name. These concerns, Jabri avers, are based on multiple threats that his grandfather made upon learning of his interest in and eventual conversion to Christianity.

In support of his claim, Jabri submitted testimony and an affidavit from his father as well as an affidavit from his mother. Both parents described their son's religious journey, the grandfather's threats in response, and the power that the grandfather has to ensure that his threats are carried out. Jabri also provided affidavits from family friends and church leaders attesting to his Christian faith, as well as country conditions evidence illustrating the dangers faced by Christian converts in Jordan.

The IJ denied Jabri's applications on the grounds that he and his father were not credible witnesses. The IJ found to be problematic differences between the testimony of Jabri and that of his father. The IJ focused on inconsistencies regarding a Bible that Jabri claimed to have kept, and regarding the details of how the grandfather learned of and reacted to Jabri's alleged conversion. The IJ noted that such inconsistencies “may be considered minor when taken alone, but are significant when considered in the aggregate.” The IJ did not dispute the potential consequences of apostasy but, on the basis of these perceived inconsistencies, disbelieved that Jabri had in fact converted to Christianity. The IJ further found that the supporting affidavits and documentary evidence were insufficient to overcome these discrepancies. The negative credibility finding, in turn, proved fatal to Jabri's ability to demonstrate that he fell within the statutory definition of “refugee” or, for purposes of his CAT claim, would be in danger of being subjected to torture upon return to Jordan. See 8 C.F.R. §§ 1208.13, 1208.16 (2011).

On review, the Board adopted and affirmed the IJ's decision, finding the adverse credibility determinations to be adequately supported by specific evidence in the record. This timely petition for judicial review followed.

II.

Jabri's arguments properly before us coalesce around a central theme, namely, that the record establishes that he has a well-founded fear of persecution on account of his conversion to Christianity and there were no inconsistencies that would suffice to undercut the credibility of his claim. His pitch is that, in finding his claim incredible, the IJ and BIA ignored substantial portions of the evidence and placed inappropriate emphasis on inconsistencies that were not material and in some instances were nonexistent.

To the extent that the petitioner argues that the inconsistencies identified by the IJ and BIA concerned immaterial or “collateral” matters and could not therefore form the basis of the adverse credibility determinations, he misapprehends the applicable law. This argument, and the cases that the petitioner relies on to support it, are based on the “heart of the matter” rule, whereby an adverse credibility determination may not be predicated on inconsistencies in an applicant's testimony that do not go to the heart of his claim. See Bojorques–Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.1999). That rule was superseded by the Real ID Act with respect to applications that, like the petitioner's, were filed on or after May 11, 2005. See Pub. L. No. 109–13, div. B, tit. I, § 101(h)(2), 119 Stat. 231, 305 (2005) (codified at 8 U.S.C. § 1158 note (2005) (Effective Date of 2005 Amendment)); see also Lin v. Mukasey, 521 F.3d 22, 26–28 (1st Cir.2008). Under the Real ID Act, a trier of fact may base an adverse credibility determination on any inconsistency in the record that has a bearing on the petitioner's veracity, “without regard to whether [the] inconsistency ... goes to the heart of the applicant's claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); 8 U.S.C. § 1231(b)(3)(C). Consequently, we may not reverse the adverse credibility determinations on the ground that the inconsistencies relied upon in reaching and affirming those determinations were not central to Jabri's claim.

The petitioner's suggestion that the adverse credibility determinations were premised in part on nonexistent inconsistencies and an incomplete consideration of the evidence does, however, give us pause. Although we review the agency's factual findings, including credibility determinations, under the deferential substantial evidence standard, e.g., Rivas–Mira v. Holder, 556 F.3d 1, 4 (1st Cir.2009), our deference is not unlimited. “We give great respect to the IJ [only] so long as he provides specific and cogent reasons why an inconsistency, or a series of inconsistencies, render the alien's testimony not credible.” Stanciu v. Holder, 659 F.3d 203, 206 (1st Cir.2011) (citing Kartasheva v. Holder, 582 F.3d 96, 105 (1st Cir.2009)). Moreover, while the Real ID Act permits the IJ to consider inconsistencies that do not go to the heart of the applicant's claim, he may only do so as part of his consideration of “the totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii); cf. Lin, 521 F.3d at 25–26 (“In assessing whether findings are supported by the record, we review the entire record, not merely the evidence that supports the BIA's conclusions.”). The IJ must, in other words, present a reasoned analysis of the evidence as a whole. We are...