Zeru v. Gonzales

United States Court of Appeals
For the First Circuit

Nos. 06-1399, 06-2345

MINYA K. ZERU and RUSSOM B. GHEBRAI,

Petitioners,

v.

ALBERTO F. GONZALES,
Attorney General of the United States,

Respondent.

PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.

Howard A. Silverman and Ross, Silverman & Levy LLP on brief
for petitioners.
Jeanette Kain, Harvey Kaplan, and Kaplan, O'Sullivan &
Friedman on brief, for Advocates for Survivors of Torture and
Trauma et al., amici curiae.
Eric W. Marsteller, Attorney, Peter D. Keisler, Assistant
Attorney General, and M. Jocelyn Lopez Wright, Assistant Director,
U.S. Department of Justice, on brief for respondent.

September 19, 2007
 LYNCH, Circuit Judge. Petitioners Minya Zeru and her

husband, Russom Ghebrai, both natives and citizens of Eritrea,

applied for asylum on the basis of past persecution and a fear of

future persecution. The petitioners premised their application on

government harassment of Zeru due to her membership in an

organization that advocated Eritrean independence when that country

belonged to Ethiopia; the organization now opposes the incumbent

Eritrean government. Following hearings conducted over the course

of almost five years, an Immigration Judge (IJ) found petitioners'

testimony to be not credible, that they had not established past

persecution, and that, in any event, there was no basis for a claim

of future persecution. The IJ thus denied the asylum application.

The Board of Immigration Appeals (BIA) affirmed in a per curiam

order.

Zeru and Ghebrai moved to reopen by challenging the

credibility determination and alleging ineffective assistance of

counsel during the asylum appeal to the BIA. The BIA denied the

motion.

Zeru and Ghebrai petition for review of both the denial

of asylum and the denial of the motion to reopen. The petition is

supported by an amicus brief on behalf of various groups concerned

with the rights of refugees and torture victims. We affirm both of

the BIA orders and deny the petitions for review.

-2-
 I.

A. Denial of Claims for Relief

Zeru arrived in the United States on December 20, 1994.

Her non-immigrant business visa allowed her to remain in the United

States until July 20, 1995. In October 1995, she filed for asylum

and for withholding of removal and was interviewed by an asylum

officer. Zeru's case was transferred to the Immigration Court. In

February 1998, both Zeru and Ghebrai, who had overstayed his visa

as well, received Notices to Appear charging them with

removability. Zeru and Ghebrai conceded removability, but both

sought asylum, withholding of removal, voluntary departure, and

relief under the Convention Against Torture (CAT) based on Zeru's

assertions of political persecution.

An IJ heard testimony from Zeru and Ghebrai on five

occasions between January 20, 1999, and March 21, 2002.1 In those

initial hearings before the original IJ, Zeru testified to the

following facts. She was born in 1968 in Massawa, then a part of

Ethiopia. From the age of fifteen, Zeru began pamphleteering and

engaging in fundraising activities on behalf of the Eritrean

Liberation Front-Revolutionary Council (ELF-RC), a political group

devoted to Eritrean independence and the establishment of a multi-

1
The IJ continued the first hearing, in which he heard
testimony from Zeru, due to concerns about the quality of the
interpreter. Zeru began her testimony anew, with a different
interpreter, at the next hearing on August 27, 1999.

-3-
party democratic system of government. Zeru kept her political

activities secret from her family, fearing retribution from various

political opponents. One rival separatist group in particular, the

Eritrean Peoples' Liberation Front (EPLF), opposed the ELF-RC's

agenda in favor of single-party rule.

Zeru testified that she was arrested in 1987 by Ethiopian

soldiers acting on a tip from the EPLF, and endured a six-month

period of imprisonment ending on January 27, 1988. She testified

that she was raped, and that she was beaten numerous times by her

jailors. Following her release, Zeru spent six months in

outpatient treatment for depression in Ethiopia.

Within a year of her release from imprisonment, Zeru

resumed fundraising for the ELF-RC. By that time, she had met

Ghebrai, a physician who worked in a state-run hospital. Zeru

testified that she did not tell Ghebrai about her political

activities or her prior imprisonment. Zeru and Ghebrai testified

that they were married in January 1990.

The EPLF defeated the Ethiopian military in 1991 and took

power in Eritrea. Zeru testified that Eritrean security forces

(according to Zeru, effectively the same organization as the former

EPLF) began harassing her in 1993, following a failed coup attempt.

On two occasions, security officers detained Zeru and interrogated

her in security forces offices near her import business in Asmara.

Then, in September 1994, Eritrean officers detained Zeru for a ten-

-4-
hour interrogation. According to testimony that Zeru gave in

August 1999, one of her interrogators held a gun to her head and

threatened to kill her. Zeru testified that she had "never felt

worse" than during that encounter.

After the September 1994 incident, Zeru sought the advice

of a friend who worked as a secretary with the Eritrean security

forces. In November, the friend warned her that her name had

appeared on a list of ELF-RC members, and that she was in grave

danger. Leaving the country, her friend said, was her "only

option." At that point, Zeru told Ghebrai about her political

activities and her history of harassment by government officials.

Zeru testified that she obtained a visa and passport through her

secretary friend and left Eritrea. This was more than six years

after her 1987-88 imprisonment. Zeru arrived in Boston in December

1994 and resided with a cousin in Portland, Maine. She was eight

months pregnant with her second child at the time.

Zeru testified that she did not contact her family after

leaving Eritrea, and that she had not been in communication with

them until recently. Nor did Zeru have any contact with Ghebrai,

but communicated with him in occasional messages conveyed through

a relative. Ghebrai entered the United States in March of 1996, on

a short-term visa to study medicine in Los Angeles, but initially

had no contact with Zeru. Ghebrai did not join Zeru in Maine until

completing six months of medical training.

-5-
 A new IJ was assigned to petitioners' case in 2003. He

reviewed the record, including petitioners' previous testimony, and

held a full day of hearings on November 26, 2003. Zeru and Ghebrai

reiterated their prior testimony. Zeru stated during direct

evidence that she had been raped once, at the start of her

imprisonment in 1987. Later, following cross examination and in

response to questioning by the IJ, Zeru said there were two

instances of rape, the second just before her release.

Petitioners also presented an affidavit and testimony

from a fact witness named Efrem Weldemichael. Weldemichael, a

native of Eritrea and a United States citizen, testified that he

was an ELF-RC executive committee member in the United States.

Weldemichael testified that he knew Zeru as an ELF-RC member when

they were both in Ethiopia during the mid-1980s; he also testified

that he heard reports from other ELF-RC members in 1987 or 1988

that Zeru was imprisoned by the Ethiopian government.

The IJ also heard from Dr. Melissa Wattenberg, a clinical

psychologist specializing in Post-Traumatic Stress Disorder (PTSD),

whom petitioners presented as an expert witness. Wattenberg was

not a treating psychologist and did not provide therapeutic

services to Zeru. Rather, at the request of Zeru's counsel, she

interviewed Zeru about her experiences during two meetings in

October and November of 1998, almost four years after Zeru entered

the country, and produced a detailed Assessment Report dated

-6-
December 1999. That report summarized Zeru's oral statement of her

own history and concluded that "Ms. Zeru meets criterion for

current moderate PTSD, and moderate depression." The report also

opined that Zeru "is a sincere and reliable reporter of her own

experience." Zeru told Wattenberg that she had been raped three

times, which differed from her hearing testimony.

Zeru's attorney sought to use Wattenberg's testimony to

establish the contents of her report and to assess Zeru's

credibility. The IJ admitted the report into evidence and

indicated that he need not hear testimony duplicative of the

report's contents. Zeru's counsel stated that she had no other

questions for Wattenberg, and rested on the contents of the report.

The IJ also reviewed petitioners' documentary evidence

during the November 26, 2003, hearing. The hearing opened with the

IJ pointing out that Ghebrai failed to bring his original passport,

including the relevant visa page, to the hearing. Petitioners

presented the IJ with a letter they had written to the hospital in

Eritrea where Zeru had allegedly received treatment following her

1987-88 incarceration, but they were unable to produce the hospital

records requested in the letter. Zeru also produced an ELF-RC

identification card issued at Zeru's request from the

organization's office in Bonn, Germany, in 1998. Zeru testified

that she did not carry such a card in Eritrea, but that she

-7-
obtained it because she "was asked to produce this to prove my

membership."

Zeru also entered into evidence an official letter

signifying her release from the prison where she was held in

Ethiopia. Zeru testified that she possessed the letter since 1995.

Zeru's attorney explained that the document could not be verified

by the United States Embassy in Addis Ababa because petitioners had

sent a copy instead of the original document to the embassy.

Finally, petitioners submitted their marriage

certificate. They sent the certificate for verification to the

United States Embassy in Asmara, but the embassy responded that

Zeru's date of birth as listed on the certificate conflicted with

the date recorded in Asmara municipal records. In addition,

certain information on the certificate, including the bride's date

of birth and the date of the marriage contract, had been covered

with white-out and typed over. The IJ admitted all of the

documents into evidence, noting that he would "give them what

weight I deem is appropriate."

On December 29, 2003, the IJ denied the asylum

application and ordered petitioners' removal. The IJ based his

decision on adverse credibility findings for Zeru and Ghebrai, a

lack of corroborating evidence requested by IJs during the

proceedings, and the submission of apparently fraudulent documents.

We describe some, but not all, of the IJ's findings. The IJ gave

-8-
a number of reasons for his credibility determinations. Among

them, he pointed out that Zeru claimed on different occasions to

have been raped once, twice, or three times. The IJ noted that

even if he was willing to ignore the contradiction in Zeru's

testimony between whether she was raped once or twice during her

six-month detention, he was still concerned that Zeru had told

Wattenberg that she was raped three times. It was the

inconsistency between her testimony to the IJ and her report to

Wattenberg that the IJ found material and relevant. The IJ stated

that "it would not be unusual for a victim of trauma to confuse

dates or sequences of events, but it would be very unusual . . . to

simply forget that an event occurred." The IJ recited numerous

other inconsistencies in petitioners' testimony relating to their

backgrounds, their marriage, their experiences in Eritrea, and

their work histories.

The IJ noted that Zeru had been asked to produce specific

documents to corroborate her claim and failed to do so. For

example, the IJ noted that she had testified that her uncle was

arrested in 1993 for involvement in a coup attempt and that the

arrest was very well publicized. She was directed at a hearing on

August 27, 1999, to obtain news reports or other information to

substantiate the arrest. Yet at the hearing on November 26, 2003,

she neither produced the documents nor had an explanation for her

failure to do so.

-9-
 In addition, the documents petitioners did submit

contained inconsistencies and evident alterations detracting from

petitioners' claims. The IJ recounted the bases for his findings

that the prison release letter,2 the marriage certificate3 and other

documentary evidence offered by petitioners were fraudulent.

The IJ further observed that petitioners' demeanor during

the November 26, 2003, hearing belied their believability. The IJ

not only found Ghebrai to be wholly incredible, but also that he

had given fraudulent testimony under oath. Indeed, the IJ found

that he doubted the testimony of both petitioners even as to their

identities and whether they were husband and wife.

The IJ also made an adverse credibility finding as to

Weldemichael. The IJ pointed out that in his affidavit,

Weldemichael stated that he first met Zeru in Ethiopia in 1983 and

saw her "a couple of time[s]" in that context. At the hearing,

however, Weldemichael insisted that he first met Zeru in 1986, and

only met her once in Ethiopia. The IJ also found it incredible

2
For example, the IJ found it telling that though Zeru
said she had the letter in her possession since as early as 1995,
she did not present it to the asylum officer at her interview. He
found the document most likely had been recently fabricated to
support her testimony.
3
The IJ suspected that the certificate was fraudulent
because of the unexplained presence of white-out on the document,
the discrepancy regarding Zeru's purported date of birth between
the certificate and Asmara municipal records, and the fact that the
United States Embassy could not determine whether the certificate
was genuine. The IJ also pointed out that petitioners could
provide no other documentary evidence of their marriage.

-10-
that although Weldemichael purported to be an ELF-RC leader in

Ethiopia, and although he had heard reports of Zeru's imprisonment

due to her ELF-RC affiliation, Weldemichael never took enough

interest in Zeru's plight to investigate Zeru's condition in prison

or whether she was released before the two met again in the United

States in 1994. The IJ also observed Weldemichael's demeanor and

stated that he "simply cannot find that Mr. W[e]ldemichael was

credible."

Because petitioners' testimony was not credible, and

because their corroborating evidence was not only insufficient to

support their claims, but in fact contradicted them, the IJ found

that Zeru and Ghebrai had failed to establish either past

persecution or a well-founded fear of persecution following their

return to Eritrea. See 8 C.F.R. § 1208.13(a)-(b) (asylum

applicants bear burden of proof to establish refugee status); see

also Singh v. Gonzales, 413 F.3d 156, 159 (1st Cir. 2005) (citing

Diab v. Ashcroft, 397 F.3d 35, 39 (1st Cir. 2005)) (stating that

corroborating evidence may bolster the testimony of a less than

entirely credible alien). In concluding that petitioners had not

established past persecution, the IJ found that petitioners had

shown neither that they suffered any harm nor that they had

established a nexus to one of the five statutory grounds for

establishing refugee status. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.

§ 1208.13(b)(1). The IJ also separately rejected the claims that

-11-
petitioners would suffer persecution on their return or had a well-

founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(2).

The IJ noted that petitioners' close relatives continued to live

peacefully in Eritrea. Indeed, Zeru's brother was in the military,

and her family continued to live in the same home and run the

family business, unmolested by the Eritrean government. The IJ

also denied petitioners' applications for withholding of removal,

protection under the CAT, and voluntary departure.4

Zeru and Ghebrai retained a new attorney, Solomon Bekele,

for their appeal to the BIA. On appeal, petitioners insisted they

had established past persecution. They claimed that the IJ erred

in his credibility finding because he improperly demanded

authenticated documentary evidence to prove petitioners' claims.

They also objected to the IJ's use of demeanor in finding Zeru and

Ghebrai incredible.

Petitioners described inconsistencies regarding the

number of Zeru's rapes as "minor" and explained them as lapses in

memory due to the passage of time. Petitioners also claimed that

the second IJ did not observe proper procedures applicable upon

assigning a new judge to an immigration case. Petitioners

additionally argued that because Zeru had established past

4
Petitioners' brief does not advance any arguments
regarding their claims for withholding of removal, protection under
the CAT, or voluntary departure. Those claims accordingly have
been waived for purposes of this petition. See Dine v. Gonzales,
464 F.3d 89, 93 (1st Cir. 2006).

-12-
persecution, petitioners were entitled to a finding of well-founded

fear of future persecution and a grant of their withholding of

removal claim. Finally, petitioners made a perfunctory argument

that they qualified for protection under the CAT.

On February 7, 2006, the BIA affirmed, incorporating an

earlier August 3, 2005 per curiam order. The BIA upheld both the

lack of credibility finding and the finding that the

inconsistencies were not sufficiently explained. The BIA noted

that it did not find persuasive Zeru's argument that the

inconsistencies were caused by lapses of memory. Further, that

argument did not explain inconsistencies in Ghebrai's and

Weldemichael's testimony. The BIA also noted that the IJ allowably

considered the demeanor of the witnesses.

The BIA also found a lack of corroborating evidence. The

BIA noted that Zeru's immediate family members continued to reside

in Eritrea without harm. As to the argument that this was

explained by the fact that her family members were politically

inactive, the BIA noted that was inconsistent with her husband's

testimony that he was not politically active, but nonetheless he

had been threatened repeatedly by security agents. In turn, it was

implausible that the husband, had he been threatened by government

agents, would have been granted a passport and permitted to travel

to the United States.

-13-
 The BIA also addressed petitioners' argument regarding

the assignment of a new IJ to their case. The BIA's decision made

clear that the IJ complied with the requirement that he familiarize

himself with the record and so state on the record. In fact, the

IJ's opinion made repeated reference to details of petitioners'

testimony given in hearings presided over by the previous IJ.

B. Motion to Reopen

Zeru and Ghebrai, represented by new counsel, filed a

motion to reopen on May 5, 2006. The motion was based on alleged

new information about Zeru's PTSD and on alleged ineffective

assistance of counsel stemming from Bekele's representation during

the initial appeal.

Zeru and Ghebrai offered evidence tending to show that

Zeru's PTSD had worsened. Zeru's evidence was that she suffered a

breakdown upon learning of her imminent deportation to Eritrea and

was hospitalized on November 12, 2005, for depression and suicidal

thoughts. Zeru submitted a letter from Dr. John Mirczak, a

psychiatrist who treated her after her release from the hospital,

dated February 1, 2006, and stating that Zeru suffered severe PTSD

as a result of "multiple gang rapes . . . suffered while a

political prisoner in Eritrea." The letter further stated that

Zeru's symptoms would worsen if she were to return to Eritrea.

Petitioners also submitted a "supplementary psychological

assessment" from Dr. Mirczak dated April 27, 2006. Dr. Mirczak

-14-
wrote that "what can sometimes happen with trauma patients is that

they may dissociate" and that their memories "may be repressed."

The supplemental assessment does not explicitly ascribe such

symptoms to Zeru.

The motion also relied on three other letters to

petitioners' attorneys from mental health professionals regarding

Zeru's PTSD diagnosis. The first, from a staff member at the

Psychiatric Institute of Washington named Dianne Carlson, explained

that Zeru had flashbacks to her imprisonment and rapes, and that

Zeru used dissociation and denial to avoid re-experiencing past

traumas. The second letter contained the impressions of a

psychologist, Jane McGoldrick, who met with Zeru twice in April

2006. McGoldrick wrote that Zeru referred in her meetings to her

rape and torture, but that she was "too tearful and distressed to

report details" of those episodes. McGoldrick asserted that Zeru's

recovery was contingent upon the success of her asylum claim.

Finally, the motion to reopen presented a lengthy letter

from F. Barton Evans, a forensic psychologist retained by

petitioners' counsel to review the Wattenberg report and provide a

"literature review" regarding PTSD. The letter aimed at

contradicting the IJ's statement that "it would not be unusual for

a victim of trauma to confuse dates or sequences of events, but it

would be very unusual for a victim of trauma to simply forget that

an event occurred." The IJ was referring to the difference between

-15-
Zeru's testimony and what she told Wattenberg about the number of

different occasions on which she had been raped. Evans wrote that

Wattenberg's affidavit negated the IJ's statement because of its

reference to Zeru "recall[ing] feeling dissociated from her body

during these rapes" and "utiliz[ing] avoidant strategies." Evans

cited several psychological studies for the proposition that PTSD

victims may suffer inconsistent recall of traumatic events. Evans

wrote that "from the perspective of the psychology of trauma, the

presence of dissociative symptoms in fact adds believability to

[Zeru's] report." Petitioners' motion to reopen explained that all

of the foregoing letters "challenged the credibility finding

stemming from Zeru's differing statements regarding the number of

times she was raped."

Zeru and Ghebrai claimed ineffective assistance of

counsel because "Bekele's work was egregiously deficient in

preparation of" the asylum appeal. This was so because Bekele

failed to address adequately in his brief the IJ's adverse

credibility findings in general, and in particular "the most

important ground of appeal, namely the virtual elimination of the

testimony of [Wattenberg,] who was in the best position to address

. . . Zeru's credibility." Petitioners argued that Bekele's

failures amounted to a due process violation. The motion to reopen

did not address the IJ's decisions regarding withholding of

removal, the CAT, or voluntary departure.

-16-
 The BIA denied the motion to reopen on August 22, 2006,

in a four-page, closely reasoned order discussing, inter alia, the

specifics of the new medical evidence. The BIA noted the limited

nature of the new evidence. Mirczak's letter opined that Zeru's

memory "could have been [a]ffected by dissociation, but overall she

is being factual about the brutality that happened." McGoldrick,

who said the disorder Zeru was suffering "often has as symptoms"

memory problems and amnesia for aspects of traumatic experiences,

did not say that Zeru suffered those symptoms. The BIA stressed

that Evans did not even conduct a direct examination of Zeru.

The BIA met head-on Evans's criticism of the IJ's

statement that "it would not be unusual for a victim of trauma to

confuse dates of sequences of events, but it would be very unusual

for a victim of trauma to simply forget that an event occurred."

Even accepting Evans's criticism, the BIA held that it would not

likely have changed the outcome of the proceeding, for several

reasons. Zeru's inconsistent statements about the number of

occasions on which she was raped were not the sole basis for the

lack of credibility finding, which rested on numerous independent

inconsistencies as well as upon the IJ's assessment of Zeru's

demeanor. Also, Zeru had failed to provide corroborating evidence.

The entire body of medical evidence rested on the credibility of

her reports to the doctor, but the IJ had, based on substantial

evidence, found her not to be credible in her reporting of her

-17-
history. Further, the basic PTSD diagnosis evidence was before the

BIA in the prior appeal and had been considered.

As to the ineffective assistance claim, the BIA reasoned

that it also failed because even considering the new evidence and

new emphasis on the effects of trauma on memory (the argument prior

counsel, it was argued, should have made), the respondent still had

not demonstrated that the outcome might have differed.

Zeru and Ghebrai timely petitioned to this court for

review of the BIA's rejection of their asylum appeal and the

Board's denial of the motion to reopen.

II.

Petitioners urge this court that "the Petition for Review

of the Motion [to Reopen] should . . . be held to be the functional

equivalent of the direct appeal" such that the two petitions would

be reviewed under the same standard and with reference to the

entire administrative record. Based on this misunderstanding,

petitioners conflate their arguments challenging the denial of

asylum and the denial of the motion to reopen.

The two petitions are legally distinct. See Keo Chan v.

Gonzales, 413 F.3d 161, 165 n.3 (1st Cir. 2005) ("[T]he legal

separateness of the denial of the asylum claim and the motion to

reopen is demonstrated by the fact that each is a separate

appealable order."); see also 8 U.S.C. § 1252(b)(4)(A) ("[T]he

court of appeals shall decide the petition only on the

-18-
administrative record on which the order of removal is based.")

(emphasis added). We review them separately according to their

respective records and standards of review. See, e.g., Zeng v.

Gonzales, 436 F.3d 26, 29, 32 (1st Cir. 2006); Olujoke v. Gonzales,

411 F.3d 16, 21, 23 (1st Cir. 2005); Fesseha v. Ashcroft, 333 F.3d

13, 18, 20 (1st Cir. 2003).

A. Denial of Asylum

Petitioners challenge the denial of asylum by attacking

the IJ's credibility findings. Petitioners assert that the IJ did

not give sufficient weight to evidence provided by Wattenberg, who

"would have been able to address the impact of PTSD on Ms. Zeru's

memory and ability to recollect certain events related to her

trauma." This is dispositive, petitioners argue, because they

characterize the IJ's credibility finding as turning on Zeru's

inconsistent testimony as to the number of times she was raped

after her imprisonment in 1987. Petitioners also argue that the

credibility finding, to the extent it was based on other

inconsistent testimony or deficiencies in corroborating evidence,

was based on trivial or immaterial evidence. We hold that

substantial evidence supports the IJ's findings and deny the

petition for review.

We must affirm an IJ's findings of fact, including the

credibility of witnesses, if they are "supported by reasonable,

substantial, and probative evidence on the record considered as a

-19-
whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting

8 U.S.C. § 1105a(a)(4)) (internal quotation marks omitted). An

IJ's credibility determinations demand deference where (1) the

discrepancies and omissions described by the IJ are actually

present in the record; (2) those discrepancies and omissions

provide specific and cogent reasons to conclude that the

petitioners provided incredible testimony regarding facts central

to the merits of the asylum claim; and (3) petitioners do not

provide a convincing explanation for the discrepancies and

omissions. Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir. 2006)

(citing Hoxha v. Gonzales, 446 F.3d 210, 214 (1st Cir. 2006)).

The IJ based his findings of incredibility on, inter

alia, numerous inconsistencies in Zeru's testimony. First,

although Zeru told Wattenberg that she had been gang raped three

times during her imprisonment from 1987-88, she testified to the IJ

that she had been raped once, and then later, that she had been

raped twice. Second, Zeru testified in August 1999 that in

September 1994, Eritrean security officers interrogated her for ten

hours, at one point pointing a gun at her and threatening to kill

her. She testified that the encounter terrified her. In November

2003, however, Zeru described the episode as a four-hour

questioning, and stated that she did not take the officers'

warnings seriously. Third, Zeru told Wattenberg that she met

Ghebrai when working at a pharmacy owned by her father. In

-20-
contrast, Zeru testified to the IJ that they met at the government

hospital where Ghebrai worked and where Zeru did volunteer work.

Fourth, Zeru testified in 2000 that she completed twelfth grade,

while in 2003 she testified that she attended school until the

tenth grade. Fifth, Zeru gave inconsistent testimony as to how

long she owned her own business in Asmara and what products her

store sold.

As to Ghebrai's testimony, the IJ noted inconsistencies

as to when he learned of Zeru's participation in the ELF-RC, as

well as conflicting testimony regarding the location of Ghebrai's

alleged encounters with Eritrean security forces searching for Zeru

after her departure to the United States. The IJ also stressed

that Ghebrai's demeanor during his November 2003 testimony "was one

of a person who completely lacked v[e]racity."

Morever, the IJ cited discrepancies and omissions in the

petitioners' corroborating documentary evidence that bolstered his

determination of incredibility. The document that Zeru offered as

proof of her 1987-88 imprisonment could not be authenticated when

she sent a copy to the United States Embassy in Ethiopia. There

were reasons to doubt another important document. Petitioners'

marriage certificate revealed an inconsistency with Asmara

municipal records regarding Zeru's date of birth, and the whited-

out document displayed signs of tampering. The documentary

problems continued: Zeru testified that hospital records were

-21-
available in Eritrea to corroborate her outpatient treatment for

depression in 1988. In spite of being advised by an IJ to obtain

those documents, and in spite of the fact that her family lives in

proximity to the hospital in Eritrea, Zeru was able neither to

produce the hospital records nor to explain why she did not produce

them. Nor was Zeru able to produce business records or the

mandatory annual government permits for the business in Asmara that

she testified at various times to having operated for either one

year or for three and a half years. Petitioners were not even able

to produce, at an IJ's request, income tax filings, employment-

related documents, or any other documents that could corroborate

that they were indeed married.

Petitioners concede, appropriately, that these

discrepancies are "specific and cogent" to a finding of

incredibility, and that some of them "do go to the heart of the

asylum claim." Petitioners seem to suggest, however, that had the

IJ given due weight to Wattenberg's testimony, her diagnosis of

PTSD would have adequately explained the discrepancies in Zeru's

testimony regarding traumatic events, especially variations in the

number of alleged rapes.

During their direct appeal to the BIA, petitioners did

not challenge the credibility determination on grounds that the

inconsistencies resulted from PTSD. Instead, petitioners attempted

at that stage to explain away testimonial inconsistencies as "the

-22-
result of memory laps[e]" due to the passage of time between events

in Eritrea and the asylum hearings. Issues not raised before the

BIA generally may not be raised for the first time on a petition

for review. Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.

1999).

Even construing petitioners' arguments in front of the

BIA as encompassing the PTSD theory, however, we cannot conclude

that "any reasonable adjudicator" would be compelled to disagree

with the IJ's credibility determination. 8 U.S.C. § 1252(b)(4)(B).

Wattenberg's Assessment Report was based on Zeru's oral

representations to Wattenberg, which the IJ concluded were

untrustworthy.

Even so, the IJ did not ignore the report or Wattenberg's

diagnosis of Zeru as suffering from PTSD. The IJ expressly

acknowledged that "it would not be unusual for a victim of trauma

to confuse dates or sequences of events." The IJ expressed his

doubt that such an effect would be sufficient to explain Zeru's

disparate statement to Wattenberg and her testimony as to the

number of times she was raped. No evidence was ever submitted by

petitioners to contradict that specific doubt. Indeed, no specific

evidence was submitted to the BIA on this point until the motion to

reopen, when Evans addressed it in his letter, and he had not even

met Zeru.

-23-
 Further, even assuming arguendo the accuracy of

Wattenberg's diagnosis of PTSD, petitioners do not claim that PTSD

clouded Zeru's testimony regarding non-traumatic facts of life such

as dates of birth, educational level, where she met her future

spouse, or how long she owned her own business. Nor does

Wattenberg's report offer any explanation of the many gaps and

contradictions within petitioners' documentary evidence. Taken as

a whole, the record available to the BIA at the time of

petitioners' direct appeal provides substantial evidence in support

of the IJ's credibility determination.

B. Denial of Motion to Reopen

Petitioners challenge the BIA's denial of the motion to

reopen on two grounds. They first assert a due process violation

resulting from an alleged ineffective assistance of counsel during

the appeal of the asylum proceedings to the BIA. They also argue

that the BIA erred in discounting the newly presented evidence of

Zeru's PTSD in denying the motion to reopen.

Motions to reopen deportation proceedings are disfavored

due to the "strong public interest in bringing litigation to a

close . . . promptly." Fesseha, 333 F.3d at 20 (quoting INS v.

Abudu, 485 U.S. 94, 107 (1988)) (internal quotation marks omitted).

The normal deference granted agency decisions on motions to reopen

applies with greater force in the immigration context because of

the implications for foreign relations. Ven v. Ashcroft, 386 F.3d

-24-
357, 360 (1st Cir. 2004) (citing Abudu, 485 U.S. at 110). We

review the BIA's denial of a motion to reopen for abuse of

discretion, reversing the denial "only if the BIA 'misread the law'

or acted 'in an arbitrary or capricious fashion.'" Fesseha, 333

F.3d at 20 (quoting Carter v. INS, 90 F.3d 14, 17 (1st Cir. 1996)).

A motion to reopen proceedings before the BIA must state

"new facts that will be proven at a hearing to be held if the

motion is granted." 8 C.F.R. § 1003.2(c)(1). The evidence sought

to be offered must be material and neither available nor

discoverable at the former hearing. Id. Ineffective assistance of

counsel claims, in certain circumstances, may satisfy these general

requirements. Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001).

While aliens in deportation proceedings do not enjoy a

Sixth Amendment right to counsel, they have due process rights in

deportation proceedings. Id. at 24. As an "integral part" of this

procedural due process, aliens in deportation proceedings have a

statutory right to be represented by counsel at their own expense.

Id. (quoting Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993)); see

also 8 U.S.C. § 1362. "Ineffective assistance of counsel in a

deportation proceeding is a denial of due process only if the

proceeding was so fundamentally unfair that the alien was prevented

from reasonably presenting his case." Lozada v. INS, 857 F.2d 10,

13 (1st Cir. 1988) (quoting Ramirez-Durazo v. INS, 794 F.2d 491,

499-500 (9th Cir. 1996)) (internal quotation marks omitted). To

-25-
succeed on an ineffective assistance of counsel claim, petitioners

must show "a reasonable probability of prejudice" resulting from

their former representation. Saakian, 252 F.3d at 25.

The gravamen of petitioners' argument before the BIA and

this court is that their appeal of the denial of asylum was

prejudiced by Bekele's failure to challenge adequately the IJ's

credibility determination. Petitioners peg their arguments to

counsel's failure to argue that Wattenberg's PTSD diagnosis

explained the inconsistencies and undercut the lack of credibility

finding.

Neither the IJ nor the BIA rested either solely or

necessarily on Zeru's inconsistent testimony concerning traumatic

past events in denying petitioners asylum. The BIA noted in its

denial of the motion to reopen that it had reviewed Wattenberg's

report and testimony. The Board, informed by that information,

concluded that although petitioners had challenged some of the IJ's

bases for his credibility determination, the board "[did] not find

that [petitioners] have demonstrated that all bases . . . were

erroneous." Therefore, even if Bekele's initial appeal were

deficient in some respects, petitioners have failed to demonstrate

that the result would have been any different given their present

arguments. In addition, "the Board's careful attention to

[petitioners'] motion to reopen . . . negated any possible

-26-
violation" of petitioners' Fifth Amendment rights. Lozada, 857

F.2d at 14.

Petitioners raise another due process issue related to

Wattenberg's testimony. Petitioners argue the IJ improperly

limited Wattenberg's testimony and thereby "deprived Ms. Zeru of

the opportunity to present fundamental evidence critical to her

case." Petitioners misstate the record.5 During the November 26,

2003 hearing, the IJ admitted Wattenberg's Assessment Report into

evidence and allowed petitioners' attorney an opportunity to

examine Wattenberg beyond the report. Counsel declined to do so.

Following the government's cross-examination of Wattenberg, the IJ

offered petitioners' counsel an opportunity to conduct redirect

questioning; counsel again declined. Petitioners do not claim

their representation before the IJ was deficient. Further, the

record reveals that the IJ reviewed Wattenberg's report in detail.

Petitioners received a full and fair opportunity to present their

expert testimony. That the IJ considered Wattenberg's testimony

and reasonably discounted its evidentiary weight does not offend

the Fifth Amendment.

Finally, petitioners claim that the BIA erred in

discounting the new evidence of Zeru's PTSD accompanying the motion

to reopen. The BIA considered that evidence but concluded that

5
Unfortunately, Zeru has mischaracterized the record
throughout her brief, and amici have relied upon those
mischaracterizations.

-27-
"evidence of [Zeru's] need for psychiatric care in late 2005 is not

a sufficient basis to overturn the comprehensive, adverse

credibility finding from December 2003." Indeed, petitioners'

"new" evidence simply reiterates Wattenberg's previous diagnosis of

PTSD. The petitioners' brief concedes that "[a]ll of this

information could have been provided by Dr. Wattenberg if she had

been given a chance to testify fully" at the asylum hearings.

Wattenberg was given that chance. The PTSD diagnosis was

considered during the asylum proceedings and before the BIA. We

cannot say the BIA erred in holding the additional evidence of

Zeru's PTSD did not present "new facts" justifying a motion to

reopen. 8 C.F.R. § 1003.2(c)(1); cf. Lemus v. Gonzales, 489 F.3d

399, 401 (1st Cir. 2007). The BIA did not act arbitrarily or

capriciously in denying petitioners' motion.

We acknowledge the assistance provided by the brief filed

by amici. Zeru and amici correctly argue that the IJ and the BIA,

in assessing credibility of aliens who are victims of trauma and

consequently suffer from PTSD, should be mindful that serious

memory problems are a common symptom of PTSD. See Br. of Amici

Curiae in Support of the Pet'rs 18-19. They also correctly argue

that expert medical evidence may assist the agency. Id. 27-28.

The record reveals that the BIA and IJ adhered to both

principles in this case. The IJ explicitly recognized that trauma

victims may give discrepant testimony. The IJ articulated his view

-28-
that this did not explain the discrepancies between Zeru's

testimony and her report to Wattenberg as to the number of rapes.

Zeru's evidence did not dispute this drawing of the line by the IJ.

Contrary to Zeru's claim that the BIA rejected the new evidence of

Zeru's medical condition in 2005, the BIA carefully considered that

evidence, as described.

Amici also join Zeru in arguing that she was not given a

fair chance to respond to doubts about her credibility. Not so.

There is no presumption that an alien seeking refugee status is

credible. Nor is there an assumption that if the IJ has not made

an express finding of non-credibility, the alien's testimony must

be taken as credible. The burden of persuasion is Zeru's, 8 C.F.R.

§ 1208.13(a), and that requires her to put forth sufficiently

credible testimony or other evidence to establish her eligibility

for asylum.

It was, or should have been, self-evident to Zeru and her

counsel that there were weaknesses in her case from her

presentation of evidence alone. First, on the issue of the number

of times she had been raped, she was inconsistent. The

inconsistency between her testimony to the IJ on that point and her

statements to Wattenberg was obvious. Second, Wattenberg's

affidavit attempted to respond by saying that Zeru "recall[ed]

feeling dissociated from her body" during the rapes and adverted to

avoidance as a symptom of her PTSD. Wattenberg was not barred from

-29-
giving further testimony on this point or from explaining the

discrepancies. Third, Zeru had the opportunity and means to

provide competent corroborative evidence. The documentary evidence

she presented appeared to be fraudulent. Fourth, during the course

of the hearing, the IJ made it clear he had reason to doubt Zeru's

claims. During one colloquy between Zeru and the IJ during the

November 23, 2003, hearing, the IJ specifically pressed Zeru on

inconsistencies between her testimony and facts contained in the

Wattenberg report. For instance, the IJ asked Zeru multiple times

whether there were only two rapes during her imprisonment in

Ethiopia. The IJ elicited Zeru's unequivocal denial that a third

rape had occurred. Thus Zeru herself contradicted what she told

Wattenberg. The IJ also asked Zeru whether her father ever owned

a pharmacy, as stated in the Wattenberg report. Zeru answered that

he did not. As for petitioners' suspect documentary evidence, the

IJ indicated during the hearings that he had reason to believe they

were fraudulent. These exchanges put petitioners and their

attorney on notice of the IJ's misgivings, but petitioners never

offered satisfactory explanations for any of these discrepancies.6

6
To the extent Zeru and amici argue that as a mechanical
matter the IJ must always, before the end of proceedings,
articulate a belief that a petitioner is not credible and provide
an additional opportunity to respond, we reject the argument.
Neither the regulations nor procedural due process require such a
procedure. Indeed, it would be unusual.

-30-
 There may be cases in which the failure by an IJ or the

BIA to give due consideration to expert evidence regarding PTSD

justifies dislodging a decision of the Board. Cf. Mukamusoni v.

Ashcroft, 390 F.3d 110, 122-23 (1st Cir. 2004). For the reasons

described, this is not such a case.

We affirm the decisions of the BIA.

-31-