United States Court of Appeals
For the First Circuit
No. 05-2118
ERIND SIMO,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Charles Christophe on brief for petitioner.
H.S. García, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney, Senior Appellate Attorney in
Charge, and Jaqueline D. Novas, Assistant United States Attorney,
on brief for respondent.
April 11, 2006
STAHL, Senior Circuit Judge. In May of 2001, Erind Simo,
a native and citizen of Albania, arrived in the United States on a
falsified passport. At the time of his arrival he was twenty years
old. What was then the Immigration and Naturalization Service
(INS) detained Simo as he entered the country, and the Department
of Homeland Security, successor agency to the INS, now seeks to
remove him to his native Albania. After a hearing before an
Immigration Judge (IJ), Simo's application for asylum, withholding
of removal, and relief under the Convention Against Torture (CAT)
was denied, and that decision was affirmed on appeal to the Board
of Immigration Appeals. Simo here contends that the Board
wrongfully based its decision denying relief on inconsistencies
between his testimony at his removal hearing and earlier statements
he made to immigration officials at the border. Simo seeks
reversal of the Board's affirmance of the IJ's decision, and remand
for a new hearing on his various claims for relief. Finding no
error in the decision of the Board, we affirm the Board's order and
deny the petition for review.
At his hearing before the IJ, Simo recounted a tale of
politically motivated harassment. He testified that his father was
an activist in the Albanian Democratic Party (DP), which was one of
the parties that emerged on the Albanian political scene after the
collapse of that country's Communist regime. Simo claimed to have
followed in his father's footsteps, joining the party's Youth Forum
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in 2000. The Albanian national government was controlled by the
country's Socialist Party from 1997 until 2005, when the DP
prevailed in the national elections. Throughout the period during
which Simo was purportedly a member of the party's youth wing, the
DP was a minority faction. Simo alleged that, because of his DP-
related activities, he was harassed on four separate occasions by
secret and regular police officials. Sometime during the month of
October 2000, Simo claimed to have been visited at the local DP
party headquarters by a member of the Albanian secret police
(SHIK), who confronted him about his party-related activities. In
March 2001, the same SHIK officer, accompanied by unidentified
thugs, allegedly accosted him on the street and beat him severely.
After four days in the hospital, Simo returned home, whereupon
local police officers allegedly detained him and interrogated him
for two hours about his political activities. Finally, in May
2001, Simo claimed that the same secret police agent and some aides
ushered him into a car, drove him around town while holding a gun
to his head, and finally threatened to kill him and told him to
leave town. Simo testified that immediately following this last
incident his father decided that it was no longer safe for him to
stay in the country. Simo was not entitled to a passport because
he had not performed the mandatory military service that was a
prerequisite for a passport's issuance. He claimed that his father
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purchased a falsified passport on the black market and sent Simo to
the United States to join an aunt and uncle who live in Boston.
Simo was detained on arrival at Boston's Logan Airport
and interviewed by an immigration officer. He was asked why he had
come to the United States, and said only that he "wanted to leave
Albania." He also said that he had purchased his passport for
$11,000 from "a guy in the market."1 The INS began removal
proceedings against Simo soon afterward. Simo conceded
removability but requested asylum, withholding of removal, and
relief under the CAT. At his hearing, Simo related the above
events, and provided certain ostensibly corroborating materials.
The corroborating evidence included medical records that attested
to the fact that Simo had sustained certain injuries in March 2001
after being beaten (though these attestations were produced, not
contemporaneously with the purported attack, but later and at the
behest of Simo's father, and were post-dated accordingly). Simo
also produced a newspaper article from a local Albanian newspaper
that described his plight in considerable detail. In response, the
government presented a State Department country assessment stating
1
The relevant portion of the colloquy ran as follows:
Q. Where did you get the passport and visa?
A. I bought it.
Q. How much did you pay for the documents?
A. $11,000.
Q. Where did you purchase these documents?
A. In Tirane.
Q. Who did you purchase these documents from?
A. I bought it from a guy in the market.
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that it was possible for Albanian asylum-seekers to pay a fee to a
local newspaper of ill repute in exchange for publication of a
fictional story corroborating an account of political persecution.2
2
The newspaper article, as translated and accepted into
evidence, with obvious typographical errors corrected, read in its
entirety as follows:
The prosecution against the democrat young people goes
on. The restitution of the ex-communists in power, on
March 1997, was followed by a political terror,
prosecution and execution of the people, member[s] and
activists of the Albanian Democratic Party, in
opposition. The terror increased especially after the
elections held on 29 June 1997, when the ex-communists
came back in power through non-democratic means. Since
that period of time the terror and violence became of a
state policy nature. The so-called free and democratic
election on October 2000, forced many political
oppositionists [to] leave Albania.
Mr. Erind SIMO, born on 13 August 1983, left the country
because of the frequent pressure[] exercised on him. The
reasons[] that made Mr. Erind leave the country were: the
active participation in the political life of the
country. Because of his engagement in the Youth Union of
the Democratic Party and his active participation in the
local elections, in which he was a member of the Election
Commission, Mr. Erind became a target of prosecution by
the political forces, who did not desire his activity.
Later on, he was registered, by the communist services,
as a regular participant in the meetings organized by the
opposition, against the injustices of the state.
He has also been one of the main militants[] who
protested against the killing of the deputy Azem Hajdari.
Mr. Erind SIMO was under continuous threat[]s, so he
could not live in Albania any longer. On May 25, 2001 he
left Albania for [the] U.S.A., because it was impossible
for him to find a job or attend the university studies in
his country.
The continuous disturbance by SHISH (Information Service)
and the impossibility [of finding] a job made him make
this decision.
The case of Erind is not the only one, concerning the
continuous leaving of the young people from Albania.
Looking for a better life, they were obliged to [leave]
[their] hometown, their families and relatives.
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The IJ determined that Simo's account was not credible,
primarily on the basis of the fact that his responses at his
interview on entering the country indicated nothing in the way of
political persecution, and his failure to mention any such
persecution cast doubt on his account at his later hearing. Also
vital to the IJ's determination was the inconsistency between
Simo's statement during his interview that he had purchased the
passport himself and his later statement that he fled Albania at
his father's urging and that his father bought the passport for
him. The IJ also noted that during his interview, Simo had been
asked if he had ever been arrested anywhere in the world for any
reason, and Simo replied that he had not, a response that the IJ
thought at odds with his account that he had been detained after
being released from the hospital in March 2001.3
Simo appealed the IJ's decision to the Board of
Immigration Appeals. The Board affirmed, stating that "insofar as
[the Immigration Judge's adverse credibility] determination is
based on inconsistencies between the respondent's testimony and his
statements to an immigration official upon his arrival in the
United States, we adopt and affirm the Immigration Judge's
decision." It went on to explain that "[t]he inconsistencies
3
The IJ based its credibility determination on other factors
as well, but the IJ's reasoning with respect to those factors was
not adopted by the Board and so those factors are not pertinent to
our review.
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(which pertain to the respondent's motivation to flee from Albania
and the mistreatment he allegedly suffered in that country) are
material to the respondents' persecution and torture claims, have
not been satisfactorily explained, and constitute a cogent basis
for the adverse credibility determination." Simo now petitions for
review of the Board's affirmance.
While we normally review a decision of the Board, not of
an IJ, to the extent that the Board has adopted the decision of an
IJ, we review the adopted portion of the opinion of the IJ as if it
were part of the opinion of the Board. See Sulaiman v. Gonzales,
429 F.3d 347, 350 (1st Cir. 2005) (citing Njenga v. Ashcroft, 386
F.3d 335, 338 (1st Cir. 2004)). When asked to review a credibility
determination by the Board, we look to see whether the
determination is "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." Bocova v.
Gonzales, 412 F.3d 257, 262 (1st Cir. 2005) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). We will not reverse a
determination that a witness was not credible unless "any
reasonable adjudicator would be compelled to conclude to the
contrary" of the Board's determination. 8 U.S.C. § 1252(b)(4)(B);
see also Chen v. Gonzales, 418 F.3d 110, 113 (1st Cir. 2005).
Although a petitioner has the burden of establishing his
eligibility for asylum, Settenda v. Ashcroft, 377 F.3d 89, 93 (1st
Cir. 2004), withholding of removal, id., and relief under the CAT,
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id. at 94, the Board may not reject a petitioner's testimony as
incredible without a specific, cogent, and supportable explanation
of what led it to its conclusion. See id. at 93 (quoting Gailius
v. INS, 147 F.3d 34, 47 (1st Cir. 1998)). Here, read as it must be
in light of the record as a whole, we find the Board's statement of
its reasons for its adverse credibility determination sufficiently
supportable.
At his initial interview at the airport, Simo gave not a
hint that he had come to the United States out of fear that he
would suffer politically motivated persecution in Albania, and he
candidly admitted purchasing a falsified passport, giving an
account that credibly suggested that he had purchased the passport
himself. The picture the interview statements taken alone painted
was of a young man who had decided in the ordinary course to try to
smuggle his way into the United States, but who was caught in the
process. Simo's later invocation of a tale of political
persecution evidently sounded to the Board like a post hoc attempt
at justification and a fabrication. Simo's description of the
process by which he had himself purchased the falsified passport
was inconsistent with his hearing testimony that his father had
procured the passport for him. His statement that he had come to
the United States because he "wanted to leave Albania," failing to
mention any persecution he had experienced in that country, was not
entirely inconsistent with his later testimony that he had
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experienced such persecution, but was also consistent with any
number of alternative stories -- among them, the government's
theory at the hearing that Simo fled Albania in order to avoid that
country's military service requirement -- and was suggestive that
such an alternate explanation was at least as plausible as Simo's
later account of persecution.4
Taken together, the inconsistent account of Simo's own
procural of the falsified passport and his failure to mention
persecution at the airport were sufficient to raise significant
doubt about Simo's credibility. Simo was asked for an explanation
at the hearing. Several answers might plausibly have explained the
discrepancy, and had Simo presented a more compelling explanation,
this case would look different -- as it would if Simo's case and
corroborating evidence were stronger. Inconsistency between a
petitioner's testimony before an IJ and earlier statements is not
necessarily sufficient to justify an adverse credibility
determination, but must be evaluated in light of the explanation
for the inconsistency tendered by the petitioner and of the rest of
the evidence presented. See Cordero-Trejo v. INS, 40 F.3d 482 (1st
4
In his interview, Simo also denied ever having been arrested,
and the IJ thought this statement was inconsistent with his
testimony that he had been detained and threatened by Albanian
police. These purportedly conflicting responses are not
necessarily inconsistent, however, for it is not at all clear that
Simo should have understood this alleged illegitimate detention to
have been an "arrest" in the sense that the immigration officer
intended.
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Cir. 1994) (supposed inconsistencies in petitioner's testimony and
evidence could not be basis for adverse credibility determination
where IJ overlooked material in record that fully resolved those
inconsistencies).
At the hearing, Simo only attested, first, and in
contravention of the notes taken at the airport interview, that he
had never said that he had procured the falsified passport himself,
and second, that he had not slept for two days before the
interview. Our cases make frequent reference to the failure of a
petitioner to sufficiently explain inconsistencies. See, e.g.,
Chen, 418 F.3d at 3; Dhima v. Gonzales, 416 F.3d 92, 96 (1st Cir.
2005). The Board is bound to thoroughly consider a petitioner's
explanation of inconsistencies if one is tendered. Here, it did
consider Simo's tendered explanation but ultimately discredited it,
and we see no grounds to say that it was compelled to do otherwise.
Simo's corroborating evidence was unconvincing, and indeed some of
it, like the newspaper article that recounted events similar to
those recounted by Simo himself, seemed to suggest not the truth of
Simo's story but its very fabrication. With no countervailing
corroborating evidence suggesting a reason for the inconsistency
that resolved it in favor of Simo's veracity at the hearing, the
Board validly concluded on the basis of the inconsistency that
Simo's story was not credible, because the contrary conclusion was
not compelled by the evidence presented.
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Without Simo's own testimony weighing in his favor, and
with his own account given at the airport cutting against him,
there was nothing erroneous in the Board's corollary determination
that there was insufficient evidence presented to establish that
Simo had the requisite well-founded fear of persecution. See Huang
v. Gonzales, 438 F.3d 65, 66 (1st Cir. 2006) (citing Mihaylov v.
Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004); 8 C.F.R. § 208.13(b)).
It follows inexorably that Simo did not carry his burden of
demonstrating the likelihood of persecution requisite to a grant of
withholding of removal, because such a grant requires a showing
stronger than the showing requisite to a grant of asylum.
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).
And it is likewise the case that, with Simo's hearing testimony
discredited and in light of the inferences drawn against him on the
basis of his interview responses, the Board did not demonstrably
err in concluding that he did not merit relief under the CAT, which
requires a demonstration that it is more likely than not that a
petitioner will be tortured upon removal, see Romilus v. Ashcroft,
385 F.3d 1, 8 (1st Cir. 2004) (citing Elien v. Ashcroft, 364 F.3d
392, 398 (1st Cir. 2004); 8 C.F.R. §§ 208.16(c)(2), 208.17(a)).
For the foregoing reasons, we affirm the order of the
Board of Immigration Appeals. The petition for review is denied.
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