Hoxha v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1454

FATMIR HOXHA; ERMIRA HOXHA; VINCENZO HOXHA; ANXHELO HOXHA,

Petitioners,

v.

ALBERTO GONZALES,
Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella and Lipez, Circuit Judges,

and DiClerico,* District Judge.

Daniel F. Cashman, with whom Cashman & Lovely, P.C. and
Susanna L. Shafer were on brief, for petitioners.
H.S. García, United States Attorney, with whom Nelson Pérez-
Sosa and Scott Anderson, Assistant United States Attorneys, were on
brief, for respondent.

May 3, 2006

* Of the District of New Hampshire, sitting by designation.
 LIPEZ, Circuit Judge. We must decide whether substantial

evidence supports the Board of Immigration Appeals' (BIA)

affirmance without opinion of an Immigration Judge's (IJ) denial of

the petitioners' application for asylum based on an adverse

credibility determination. After reviewing the testimony and

documents in the record, we affirm.

I.

On March 31, 2002, Fatmir Hoxha ("Hoxha"), his wife,

Ermira Hoxha, and their two children, Vincenzo and Anxhelo Hoxha,

entered the United States without proper documentation. Several

months later, on June 19, 2002, Hoxha applied for asylum and

withholding of removal, and for relief under the Convention Against

Torture, asserting that he and his family were persecuted on

account of his membership in the Democratic Party of Albania.1 In

support of his application, Hoxha submitted two declarations: one

dated June 2002, and the other July 2002. In August 2002, the INS

served Hoxha with a Notice to Appear, charging him with

removeability under § 237(a)(1)(A) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(1)(A). On September 30, 2003,

after hearing testimony on the merits of Hoxha's application, the

IJ denied it and entered an order of removal to Albania.

Specifically, the IJ made a negative credibility determination

1
Hoxha's wife and children are derivatives listed on his asylum
application.

-2-
based on discrepancies between Hoxha’s two declarations, and

between those declarations and his in-court testimony. The BIA

issued a summary affirmance without opinion on March 28, 2003.2

Hoxha filed this petition, claiming that the IJ's decision,

affirmed by the BIA, is not supported by substantial evidence, and

that the BIA violated its own regulatory procedure by streamlining

Hoxha's case and affirming the IJ's decision without opinion.

II.

We summarize the testimonial and documentary evidence

that Hoxha presented to the IJ and then discuss the IJ's evaluation

of that evidence.

A. Summary of Evidence

Hoxha was born in Tirana, the capital of Albania, where

he lived for approximately thirty-five years before coming to the

United States. Hoxha was self-employed as the owner of a "fast

food business." In 1995, he joined the ruling Democratic Party of

Albania, "participat[ing] in every rally and meeting," contributing

money, and "help[ing] recruit[] young people, new people to

increase the membership." The Democratic Party remained in power

from March 1992 until June 1997, when the Socialist Party was

elected. Hoxha's problems with the government then began.

2
"Where, as here, the BIA summarily affirms the decision of the
IJ, we review the decision of the IJ." Mihaylov v. Ashcroft, 379
F.3d 15, 18 n.3 (1st Cir. 2004).

-3-
 On June 30, 1997, police beat Hoxha over the head with

clubs while he attended a meeting in the public square protesting

the Socialist Party's "manipulation of the election that took place

in June." Police arrested Hoxha, forced him into a car, and

continued to beat him on the way to "prison number 313." Once

there, police beat Hoxha more severely, using their fists and

clubs, and kicking him all over his body. Hoxha remained in

custody overnight. The following day, police asked Hoxha to sign

a document stating that he had participated in an illegal meeting,

which he refused to do. Before releasing Hoxha, police told him

not to attend any more meetings.

The following year, on March 31, 1998, a suspicious fire

occurred at the home of Hoxha's father during a visit from Hoxha,

his son Anxhelo, and several of Anxehlo's friends. Hoxha "heard

the children screaming" and "saw flames coming out of the room."

His son "had flames on his arm and another child also and my son's

hands were taken afire." Hoxha took his son to the hospital, where

his son remained for seventeen days.

On May 24, 1998, when Hoxha was returning from a

Democratic Party rally, people in civilian clothing hit him "very

hard without any warning or saying anything," leaving him

unconscious on the ground where he remained for several hours.

Hoxha, accompanied by his wife, sought medical treatment at the

hospital for his injuries. One year later, on September 12, 1999,

-4-
police again arrested Hoxha at an "illegal meeting" of the

Democratic Party. At the police station, police subjected Hoxha to

"very hard heavy physical violence," including beatings "with

rubber sticks and the butt of a gun." Hoxha explains that police

"cut my eyebrow, all the parts of my body, they were hitting me.

They tied me to the chair. They were hitting me on the legs and on

the head . . . ." The police then told Hoxha that they had started

the fire that injured his son, stating that "for 45 years we are in

power, we are going to kill you. Like we burned your house. We

are going to try to burn your house. We are going to burn you

out."

On March 22, 2000, at a Democratic Party meeting in the

public square celebrating "the anniversary of the victory of

democracy," police arrested Hoxha and beat him in custody. Hoxha

explains that police were "pulling [his] hair" and hitting him on

the back, and that he "was unconscious several time[s] from the

police brutality." Police held him in custody overnight and

released him the following day, warning him that if they saw him at

any more meetings, he "was the first one [they were] going to

grab."

The following month, three men in civilian clothing

approached him on the street and began beating him. They "told

[him] to stop [his] political activities" and then left him on the

ground. On June 5, 2000, police approached Hoxha at a Democratic

-5-
Party meeting and began punching him. According to Hoxha, "[t]wo

of them were holding me. One of them was punching me in the

stomach with police clubs in the back." Hoxha received medical

treatment for "shock[] and [] depress[ion]."

In October of that year, Hoxha was chosen to represent

the Democratic Party as a member of the commission charged with

ensuring the fairness of the local mayoral elections. Hoxha began

receiving anonymous and threatening phone calls and letters

throughout the month, telling him that he "should pull out . . .

should resign as a member of the democratic party[], [and] threats

against [his] children." Immediately following the elections, on

his way out of the election office, Hoxha was attacked by several

people "dressed in civilian clothing," who thr[e]w [him] to the

ground, hitting [him] hard, [with] heavy objects, [and] punching

[him]." Hoxha sought medical treatment at the hospital for a cut

on the back of his head and received several stitches.

On October 26, 2000, police approached Hoxha and his wife

in the public square as they protested the manipulation of the

mayoral elections. One police officer "threw [Hoxha] on the ground

. . . punched [him], kicked [him] on the lip [and] punched him,"

while other officers hit his wife and pulled her hair. Police then

handcuffed Hoxha and brought him and his wife to the police

station, where they "beat[] [him] with police clubs and kicking."

Hoxha was "bleeding very much," and police brought him to the

-6-
hospital, where he received stitches for the cut on his lip. He

was then brought back to the police station, where police

questioned him about his participation in the illegal meeting and

told him "not to go to meetings anymore because they are illegal."

Hoxha responded by telling the police that he would "take them to

court" for beating him and his wife. The police released Hoxha and

his wife after three days. Hoxha's wife "had a swollen eye. In

the face, they slapped her and they were pulling her hair in the

cell." After his release, Hoxha filed a complaint with the local

district attorney's office, but the complaint was never prosecuted.

On January 24, 2001, Hoxha's house was hit with "heavy

machine guns," which injured his son, Anxhelo, whose "left leg was

bleeding." Hoxha and his wife took their son to the hospital, but

were told that the hospital lacked "conditions to operate on him,"

and that they should instead take their son to Greece to receive

treatment. Hoxha arranged for his brother, who lived in Greece, to

take Anxhelo to a hospital there. Anxhelo returned from Greece

over a week later, on approximately February 3 or 4. Shortly

thereafter, Hoxha decided to flee Albania.

On February 8, 2001, Hoxha sold his fast food business;

the following month, he and his family left Tirana for Vlora,

Albania. They remained in Vlora for over a year. During that

time, in December 2001, Hoxha briefly returned to Tirana to discuss

obtaining passports so that he and his family could leave Albania.

-7-
While in Tirana, Hoxha attended a Democratic Party activity.

During a lunch break, approximately four civilians attacked Hoxha

as he sat with several friends at a coffee shop. According to

Hoxha, "I fell down and I was bleeding and they said – you are the

one criticizing everywhere that you are going? – You forgot

something that we are back in power son of the beach [sic]." They

then kicked him and beat him.

On March 30, 2002, Hoxha and his family traveled by plane

to Milan, Italy, and then to Montreal, Canada, where they arrived

on March 31, 2002. That same day, Hoxha and his family crossed the

Canadian border into the United States using passports provided by

a smuggler, took a taxi to Albany, New York, and arrived in New

York City by bus.

Hoxha also submitted numerous documentary sources in

support of his application, including: two membership

verifications for the Democratic Party; an alleged certificate from

the district attorney of Tirana stating that Hoxha and his wife

were "mistreated by the police" following a demonstration on

October 26, 2000; a membership card from the Association of Ex-

Politically Persecuted of Albania stating that he "belonged to a

persecuted family"; a medical report from the University Hospital

Center of Tirana regarding the treatment of Anxhelo Hoxha for

burns; an alleged newspaper article dated May 25, 2001, regarding

the persecution of Hoxha and his family; and the State Department's

-8-
2002 Country Reports on Human Rights Practices for Albania, which

reported that "police beat and otherwise abused suspects, detainees

and prisoners," and that police "arbitrarily arrested and detained

persons."

B. IJ's Evaluation of Evidence

The IJ denied Hoxha's request for asylum, withholding of

removal, and withholding under the Convention Against Torture,

based on an adverse credibility determination.3 In reaching this

determination, the IJ recognized that "a credibility assessment is

not reducible to a finite formula, and that all factors must be

considered both individually and cumulatively." While "mere

trivial errors or errors incidental to a claim are insufficient for

an adverse credibility finding," the IJ reasoned, "discrepancies

and omissions [that] cumulatively go to the heart of the claim or

otherwise show testimony ultimately dubious" support such a

finding. Where these discrepancies and omissions exist, the IJ

noted, "the three prong test of [In re A-S-, 21 I & N Dec. 1106,

1109 (BIA 1998)], must also be met," that is,

(1) the discrepancies and omissions described by the
Immigration Judge must actually be present in the record;
(2) the discrepancies and omissions must provide
specific and cogent reasons to conclude that the alien
provided incredible testimony; and

3
According to the IJ, "[d]espite the adverse credibility finding,
the Court did find th[e] portion of [Hoxha's] testimony, relative
to his manner and date of arrival in the United States, to be
sufficiently credible to justify considering [his] application for
asylum on the merits."

-9-
 (3) a convincing explanation for the discrepancies
or omissions must not have been supplied by the alien.

Even where these credibility factors are present, the IJ

noted that "there may be circumstances where an individual's

ability to recall dates and times would be in doubt, but should not

undermine the individual's credibility." These circumstances

include where an individual has "suffered traumatic occurrences

distant in time and in a manner that can impair his ability to

provide chronologically cogent and persuasive testimony," or where

an individual who "is not represented by counsel, either in the

preparation of the application or in Court," is "unartful" in the

presentation of his case.

The IJ determined that, in light of all of these factors,

"[t]he discrepancies and omissions in this case are significant,

and cause this Court to have so [sic] serious doubts about the

respondent's credibility that the Court is without recourse, but to

enter an adverse credibility finding." In making this

determination, the IJ noted numerous inconsistencies between

Hoxha's two declarations, and between those declarations and his

in-court testimony. Hoxha's first declaration does not reference

the March 31, 1998 fire that injured his son, and the second

declaration states that the fire occurred on March 3, not March 31,

1998. Neither declaration mentions that during the September 12,

1999 incident, police admitted to setting the fire. While Hoxha's

-10-
testimony and second declaration both refer to his being beaten

following the mayoral elections in October 2000, Hoxha's first

declaration states that the elections took place one year later in

October 2001. In addition, neither declaration mentions the

October 26, 2000 incident in which police beat and detained Hoxha

and his wife.

The IJ found "very significant . . . the fact that the

respondent was unequivocal that he says that he sold his business

on February 8, 2001, while both declarations indicate that the

respondent's business was sold by him in August of 2000." The IJ

also noted the "drastically different" reasons that Hoxha gave for

selling his business: Hoxha testified that he sold his business

shortly after his son was injured by heavy artillery and was sent

to Greece for treatment, while "in both declarations, the

respondent stated that the business was sold after they were

constantly being threatened by the secret service." The IJ also

found "very significant" the discrepancy surrounding the date on

which Hoxha's son returned from Greece after receiving medical

treatment. According to the IJ, "[t]he respondent was clear that

his son returned from Greece in early February perhaps February 4,

2001, while both declarations state that his son returned on March

4, 2001." Lastly, the IJ notes that unlike his second declaration

and testimony, Hoxha's first declaration does not mention the

-11-
December 2001 incident in which he was attacked by several

civilians upon returning to Tirana.

The IJ stated that he was also troubled by the fact that

Hoxha's attorney knew of only one of the two declarations submitted

by Hoxha and thus knew nothing of the inconsistencies between the

two. By failing to address these inconsistencies in a supplemental

or amended application prior to the hearing before the IJ, Hoxha's

attorney "effectively ratified one or both declarations that

existed in this record." In addition, while Hoxha claimed that he

went over his application with his attorney, neither Hoxha nor his

attorney seemed to know of the inconsistencies between the

declarations and the testimony that Hoxha planned to give at the

hearing before the IJ. As a result, the IJ noted, Hoxha made no

attempt at the hearing to address the inconsistencies between his

two declarations and between the declarations and his testimony.

Based on this evidence, the IJ determined that he could

not enter a favorable credibility finding. "[D]espite the

existence of documentation in the record that on its face seems to

verify much of what the respondent has claimed happened," the IJ

stated that the documents proffered by Hoxha were "not

authenticated and their mere existence is insufficient to overcome

the adverse credibility finding . . . ." In addition, the IJ noted

that Hoxha did not attempt to rehabilitate his credibility by

providing corroborating evidence, such as documentation of his

-12-
son's medical treatment in Greece or his own medical treatment in

Tirana. "If credible," the IJ noted,

there is certainly nothing inherently implausible about
the respondent's claim, given the now evolving conditions
in Albania. However, on this record, the Court finds
that the respondent has not met his burden of proof and
persuasion, in that he has not presented an adequately
credible claim in light of the content of his testimony
and the discrepancies that exist both between his
testimony and the declarations, as well as to each
declaration itself.

III.

A. Standard of Review and Burden of Proof

We review the IJ's factual findings and credibility

determinations "under the deferential substantial evidence

standard." Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir. 2005).

"The IJ's determination must stand 'unless any reasonable

adjudicator would be compelled to conclude to the contrary.'" Id.

(quoting 8 U.S.C. § 1252(b)(4)(B)). We will give great deference

to an IJ's credibility determinations "so long as the IJ provides

specific reasons for those determinations." Id. (internal citation

and quotation marks omitted). "[W]e will remand if the agency

fails to state with sufficient particularity and clarity the

reasons for denial of asylum or otherwise to offer legally

sufficient reasons for its decision." Mihaylov, 379 F.3d at 21

(internal citation and quotation marks omitted); see also Cordero-

Trojo v. INS, 40 F.3d 482, 487 (1st Cir. 1994) ("[D]eference is not

due where findings and conclusions are based on inferences or

-13-
presumptions that are not reasonably grounded in the record, viewed

as a whole, or are merely personal views of the immigration

judge."). When a case "rises and falls purely on an IJ's

credibility finding," it is particularly important that the

decision-maker "carefully detail the reasoning leading to the

adverse finding." Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d

Cir. 2003).

The burden of proof is on the asylum applicant to

demonstrate that he or she meets the statutory definition of a

refugee and is therefore eligible for asylum. See 8 C.F.R. §

1208.13(a). "The applicant may qualify as a refugee either because

he or she has suffered past persecution or because he or she has a

well-founded fear of future persecution [on account of race,

religion, nationality, membership in a particular social group, or

political opinion]." 8 C.F.R. § 1208.13(b). "An applicant's

testimony, 'if credible, may be sufficient to sustain the burden of

proof without corroboration.'" Dhima, 416 F.3d at 95 (quoting 8

C.F.R. § 1208.13(a)). "[I]f the applicant is found not to be

entirely credible, corroborating evidence may be used to bolster an

applicant's credibility." Id. (internal citation and quotation

marks omitted).4

4
The REAL ID Act of 2005, Pub. L. 109-113, 119 Stat. 302, "alters,
among other things, the standards governing credibility
determinations and the need for corroboration of testimony in
asylum cases." Dhima, 416 F.3d at 95 n.3. Because these
provisions apply only to "applications for asylum, withholding or
other relief from removal made on or after [May 11, 2005]," REAL ID

-14-
B. Adverse Credibility Determination

The IJ determined that Hoxha was not credible based on

numerous inconsistencies between Hoxha's two declarations, and

between those declarations and Hoxha's testimony at the hearing.

Relying upon the BIA's three-prong test for evaluating credibility

set forth in In re A-S-, the IJ found (1) discrepancies and

inconsistencies in the record (2) which provided specific, cogent

reasons for an adverse credibility determination, and (3) which

were not adequately explained by Hoxha.

1. Discrepancies and Inconsistencies in Record

Hoxha does not take issue with the IJ’s findings

regarding the first prong of this test; he concedes that there are

inconsistencies between the June 2002 and July 2002 declarations,

and between those declarations and his testimony at the hearing

before the IJ.

2. Specific, Cogent Reasons

Hoxha argues that, for a variety of reasons, the

inconsistencies in this case do not provide cogent reasons for an

adverse credibility determination.

ACT § 101(h)(2), these provisions are not applicable to this case.

-15-
 a. Heart of the Asylum Claim

Hoxha first argues that the inconsistencies cited by the

IJ do not undermine Hoxha's credibility because they are "minor"

and "do not go to the heart of the applicant's asylum claim." We

have stated that "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) (internal citation and quotation marks

omitted); see also Secaida-Rosales, 331 F.3d at 308 (stating that

"[i]nconsistencies of less than substantial importance for which a

plausible explanation is offered cannot form the sole basis for an

adverse credibility finding. . . . especially [] when the

inconsistencies do not concern the basis for the claim of asylum or

withholding, but rather matters collateral or ancillary to the

claim" (internal citations and quotation marks omitted)); Shah v.

INS, 220 F.3d 1062, 1068 (9th Cir. 2000) ("Minor inconsistencies in

the record such as discrepancies in dates which reveal nothing

about an asylum applicant's fear for his safety are not an adequate

basis for an adverse credibility finding." (internal quotation

marks and citation omitted)).

The heart of Hoxha's claim of asylum is that he and his

family were persecuted on account of his political activity with

the Democratic Party of Albania. The numerous inconsistencies

between Hoxha's two declarations, and between the declarations and

-16-
Hoxha's sworn testimony, closely relate to this alleged

persecution. These inconsistencies include: discrepancies

surrounding the date on which police set fire to Hoxha's home and

omissions concerning whether police admitted setting the fire;

discrepancies surrounding the year in which Hoxha was beaten

following his participation in the mayoral elections; omissions

concerning whether Hoxha and his wife were beaten and detained by

police in October 2000; discrepancies surrounding the year in which

Hoxha sold his business and his reasons for selling it;

discrepancies surrounding the date on which Hoxha's son returned

from the hospital after being injured by artillery fired at Hoxha's

home; and omissions concerning whether Hoxha was beaten by

civilians after briefly returning to Tirana in December 2001.

Far from trivial, the numerous inconsistencies cited by

the IJ involve the heart of Hoxha's asylum claim and thus support

the IJ's adverse credibility finding. Compare Bojorques-

Villanueva, 194 F.3d at 17 (holding that the BIA's adverse

credibility finding was supported by substantial evidence where

"the inconsistencies noted by the Board were more than several and

more than minor, such as an error in dates or typographical error"

and "the multiple inconsistencies went to the central facts," i.e.,

"the where, the who, the when and the what" of the triggering

event), and In re A-S-, 21 I & N Dec. at 1110 (holding that "the

omission of key events [] coupled with numerous [date]

-17-
inconsistencies," was a "specific and cogent reason supporting the

[IJ]'s adverse credibility finding"), with Vilorio-Lopez v. INS,

852 F.2d 1137, 1142 (9th Cir. 1988) ("Minor inconsistencies in the

record such as discrepancies in dates which reveal nothing about an

asylum applicant's fear for his safety are not an adequate basis

for an adverse credibility finding."), and Martinez-Sanchez v. INS,

794 F.2d 1396, 1400 (9th Cir. 1986) (holding that two "trivial

errors" in an otherwise consistent record "did not constitute a

valid ground upon which to base a finding that an asylum applicant

is not credible").

b. Legitimate Nexus

Hoxha further argues that "even assuming that some of the

discrepancies contained in the written statements involved matters

central to [his] asylum claim," these discrepancies bear no

"legitimate nexus" to the IJ's adverse credibility finding. "A

reasonable factfinder upon review of the entire record," Hoxha

contends, "would be compelled to conclude that the discrepancies in

the statements indicated not negative credibility, but sloppy and

irresponsible lawyering."

In support of this argument, Hoxha notes that both

declarations were "written in broken English replete with

grammatical and spelling errors, typos, and long passages of

boilerplate legal language unrelated to [his] specific asylum

claim." Many of the discrepancies in dates, Hoxha argues, "seem

-18-
indicative of typographical errors rather than lack of

credibility," such as where the June 2002 declaration erroneously

states that the fire at the home of Hoxha's father started on

"March 3, 1998" instead of on March 31, 1998. Hoxha also contends

that he was wholly unprepared for questioning regarding the

inconsistencies between his first and second declarations, and

between those declarations and his testimony, because his lawyer

did not review the declarations with him prior to the hearing

before the IJ. Hoxha supports this contention by noting that he

did not sign either declaration; both declarations are in English,

which he could not read; and neither he nor his attorney were aware

of the existence of a second declaration.

An IJ's reasons for rejecting an applicant's testimony on

credibility grounds must "bear a legitimate nexus" to the adverse

credibility finding. Secaida, 331 F.3d at 307. We find such a

nexus here. While the contents of Hoxha's declarations and his

preparedness for the hearing before the IJ leave much to be

desired, these deficiencies do not compel a finding that Hoxha was

poorly represented but credible. On the contrary, the record

supports the IJ's determination that the inconsistencies in this

case were so significant that the IJ was "without recourse [] but

to enter an adverse credibility finding."

Even if "sloppy drafting" were to blame for the

discrepancy in the date of the fire that injured his son, Hoxha

-19-
does not explain how poor drafting resulted in discrepancies in the

month and even the year of certain other events, and in the

omission of some events altogether. In addition, while the record

reflects that Hoxha had difficulty understanding English (he had an

interpreter at his hearing before the IJ, and he testified that an

interpreter filled out his application based on answers that he,

via his cousin, provided in Albanian); that he did not technically

sign either declaration (his name is typewritten at the end of both

declarations); and that his attorney was unaware of the existence

of one of the two declarations, Hoxha twice acknowledged explicitly

that he knew of the two declarations. He also answered in the

affirmative when asked by both the IJ and the government whether he

had reviewed his asylum application with his attorney. The record

thus supports the IJ's determination that the inconsistencies in

this case pointed not to poor representation, but rather to a lack

of credibility.

c. Other Measures of Credibility

Even if the inconsistencies in this case support an

adverse credibility determination, Hoxha argues that "consistency

between written and oral statements is [only] one measure of

credibility. A reasonable factfinder could have evaluated [him] on

the plausibility of his story, his level of detail, [and] his

demeanor when testifying." The IJ did consider other measures of

credibility before rendering the adverse credibility determination.

-20-
At the outset of his analysis, the IJ stated that he "had the

opportunity to observe the respondent's demeanor throughout his

testimony and to compare that testimony to the written application

and supporting documentation." The IJ also acknowledged "the

existence of documentation in the record that on its face seems to

verify much of what the respondent has claimed happened," but noted

that the documents were not authenticated and that "their mere

existence is insufficient to overcome the adverse credibility

finding." While Hoxha "could have attempted to rehabilitate his

credibility" by coming forward with other corroborating evidence,

the IJ noted, he did not do so. In addition, the IJ acknowledged

the plausibility of Hoxha's story, stating that "[i]f credible,

there is certainly nothing inherently implausible about the

respondent's claim, given the now evolving conditions in Albania."

Viewing the record as a whole, the IJ determined that the

existence of corroborating evidence, together with the plausibility

of Hoxha's claim, were insufficient to overcome the IJ's "serious

doubts" about Hoxha's credibility. Given the "significant"

discrepancies and omissions identified by the IJ in this case, the

IJ did not err in finding that the evidence supported an adverse

credibility determination.

This case is therefore different from Osorio v. INS, 99

F.3d 928 (9th Cir. 1996), cited by Hoxha, in which the Ninth

Circuit remanded the BIA's denial of asylum in a case involving

-21-
inconsistent declarations. In that case, neither the IJ, nor the

BIA, which adopted the IJ's reasoning, "identif[ied] the specific

inconsistencies on which they based their finding that [the

applicant] was not credible," nor did they give "any indication of

the nature or gravity of the inconsistencies that they purported to

rely upon." Id. at 931-32. Rather, the IJ merely stated that the

petitioner was "not credible" based on "inconsistencies" stemming

from a "garbled and difficult to understand" application, which,

the Osorio court noted, was "clear[ly]" not drafted by someone

fluent in English. Id. at 929, 931. There was no indication, the

court stated, that either the BIA or the IJ evaluated whether the

inconsistencies in the applicant's first application "may have been

simply the product of a language barrier or of a misreading of a

largely unintelligible document." Id. at 932.

In this case, by contrast, the IJ listed the numerous

"significant" and "troubling" inconsistencies upon which it relied

for its adverse credibility determination. Unlike Osorio, the IJ

also acknowledged that "there may be circumstances where an

individual's ability to recall dates and times would be in doubt,

but should not undermine the individual's credibility," such as

"when an individual is not represented by counsel, either in the

preparation of the application or in Court." Here, the IJ noted,

Hoxha was not only represented by counsel but also testified that

he had reviewed his asylum application with his attorney prior to

-22-
the hearing. Lastly, while the declarations in this case were

replete with various grammatical and spelling errors, they were by

no means unintelligible. Therefore, the inconsistencies relied

upon by the IJ, unlike those in Osorio, were not "illusory," i.e.,

they were not "simply the product of a language barrier or of a

misreading of a largely unintelligible document." 99 F.3d at 932.

3. Convincing Explanation of Discrepancies
or Omissions

Hoxha argues that he provided reasonable explanations for

the various inconsistencies at the hearing before the IJ, and,

therefore, the IJ's adverse credibility determination is not

supported by substantial evidence. Hoxha's argument is unavailing.

When asked by the IJ why his two declarations listed different

dates for the March 1998 fire at his father's home, Hoxha answered

that "[m]aybe it was a mistake." When asked by the government why

he did not mention the September 1999 admission by police to

burning his father's home, Hoxha offered no explanation at all. He

also failed to give an explanation for why the date that he

testified he sold his store differed from the date provided in his

declarations by almost a year. When the IJ asked Hoxha why he did

not amend or correct his asylum application to clarify the

inconsistencies between his application and his testimony regarding

the date on which his son returned from the hospital in Greece,

Hoxha stated only that he was telling the truth, and that his

testimony was correct. As the IJ states, not only did Hoxha not

-23-
address these discrepancies, "but [he] seemed to not even know they

existed" – despite having reviewed his application with his

attorney. The record therefore supports the IJ's determination

that Hoxha did not convincingly explain the inconsistencies in his

case.

C. Summary Affirmance

Hoxha argues that in affirming the IJ's decision without

opinion, the BIA violated its summary affirmance procedure. Under

this procedure,

[t]he Board member to whom a case is assigned shall
affirm the decision of the Service or the immigration
judge, without opinion, if the Board member determines
that the result reached in the decision under review was
correct; that any errors in the decision under review
were harmless or nonmaterial; and that

(A) The issues on appeal are squarely controlled by
existing Board or federal court precedent and do not
involve the application of precedent to a novel factual
situation; or

(B) The factual and legal issues raised on appeal are not
so substantial that the case warrants the issuance of a
written opinion in the case.

8 C.F.R. § 1003.1(e)(4)(i).

Hoxha argues that the BIA erred because its decision "was

based upon an incorrect result reached by the IJ, and upon the IJ's

erroneous conclusions of law and fact that were neither harmless

nor nonmaterial."5 The government, on the other hand, argues that

5
Hoxha does not argue that the issues on appeal in this case are
not controlled by existing precedent or that they involve the
application of precedent to a novel fact situation, nor does he

-24-
the BIA's decision to streamline a particular case is not subject

to judicial review because the streamlining procedure is an action

committed to the absolute discretion of the BIA.

We have previously acknowledged that we have jurisdiction

to review the BIA's decision to streamline, at least in those cases

involving both a reviewable and non-reviewable basis for the IJ's

decision, where it is unclear on what basis the BIA summarily

affirmed the decision. See Haoud v. Ashcroft, 350 F.3d 201, 206

(1st Cir. 2003) ("Especially when the Board's review of an IJ's

decision often hinges on Circuit court precedent, we are

well-equipped, both statutorily and practically, to review a

decision to streamline."). Here, however, "it makes no practical

difference whether the BIA properly or improperly streamlined

review" since "we can review directly the decision of the IJ."

Olowo v. Ashcroft, 368 F.3d 692, 698 (7th Cir. 2004) (internal

quotation marks and citation omitted); see also Falcon Carriche v.

Ashcroft, 350 F.3d 845, 854 n.7 (9th Cir. 2003) (stating that in

most cases, "streamlining and the merits issues collapse into one

analysis and thus the issues surrounding jurisdiction over

streamlining, however decided, [do] not prevent review on the

merits"). Because we find the IJ's adverse credibility

determination clearly supported by substantial evidence in the

record, we dispose of Hoxha's argument without reaching whether the

argue that the factual and legal questions raised in his case are
so substantial as to warrant issuance of a written opinion.

-25-
BIA's affirmance of the IJ's adverse credibility determination

under the summary affirmance procedure was error.

IV.

The BIA's order is affirmed; the petition for review is

denied.

So ordered.

-26-