Rivas-Mira v. Mukasey

United States Court of Appeals
For the First Circuit

No. 08-1604

CARLOS EDUARDO RIVAS-MIRA,

Petitioner,

v.

ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

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

Willilam P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Mark C. Walters, Assistant Director, Office of Immigration
Litigation, and Anh-Thu P. Mai-Windle, Senior Litigation Counsel,
on brief for respondent.

February 11, 2009

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as respondent.
 SELYA, Circuit Judge. The petitioner, Carlos Eduardo

Rivas-Mira, is a native of El Salvador. He seeks judicial review

of a final order of the Board of Immigration Appeals (BIA)

affirming the decision of an immigration judge (IJ) that ordered

his removal and denied him asylum, withholding of removal, and

relief under the United Nations Convention Against Torture (CAT).

After careful consideration of the briefs and record, we deny the

petition.

Our sole focus is the denial of the asylum claim.1 The

basic facts are straightforward.

The petitioner arrived illegally in the United States on

January 22, 2005. Two days later, federal authorities placed him

in removal proceedings. See 8 U.S.C. § 1182(a)(6)(A)(i). He

conceded removability and cross-applied for asylum, withholding of

removal, and CAT protection.

Following a hearing, the IJ denied the petitioner's

claims for relief. She premised her decision on a finding that the

petitioner's testimony lacked credibility. At the same time she

found, in the alternative, that the petitioner's testimony, even if

credible, failed to demonstrate that he had been or would be

persecuted on the basis of a statutorily protected ground.

1
The petitioner conceded removability and has failed to
advance any developed argumentation as to any of his other claims
for relief. Consequently, we treat those claims as abandoned. See
Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004); United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

-2-
 The linchpin of the IJ's decision — the adverse

credibility determination — is woven out of perceived

inconsistencies in the petitioner's testimony. Thus, we turn

directly to that testimony.

The petitioner related that his troubles in El Salvador

started while he worked as a machine operator for Bocadeli Food

Products. He described an ongoing struggle between union

organizers and company executives at his workplace. The former

were looking to increase union influence and membership; the latter

were seeking to thwart the organizers' efforts, partially by

identifying and firing union sympathizers.

Among other things, the pro-union contingent employed a

carrot-and-stick approach. On the one hand, the union offered to

protect prospective members from violent gangs that roamed the

area. On the other hand, the union assisted the gangs in targeting

persons who either sided with management or resisted the union's

blandishments. The petitioner had no desire to lose his job, but

he worried about incurring the union's wrath. He tried to remain

"neutral," but his efforts at neutrality came to naught.

The denouement took place on July 19, 2004. The

petitioner testified that, on that date, two armed men boarded a

bus transporting Bocadeli employees home after completing their

shift. He recognized the men as members of a gang linked to union

organizers.

-3-
 The intruders relieved the passengers of their valuables

(including bonuses received earlier that day). They then shot the

petitioner at close range, wounding him in the hand and chest. No

shots were fired at any other passenger. The petitioner speculated

that his refusal to join the union was the reason why his

assailants singled him out and shot him.

The petitioner further testified that, two weeks later,

he met one of his assailants by happenstance. He thereafter began

to receive anonymous telephone calls. The mysterious callers

threatened to take his life if he chose to report his shooting to

the police.

The petitioner indicated that the "bus incident" was not

an isolated instance of violence. His brother was robbed under

similar circumstances in November of 2004 and the robbers passed

along a warning that the petitioner should not "open [his] mouth."

Additionally, the petitioner vouchsafed that he knew of four

coworkers who had been assaulted for providing information to

management about union activity. Finally, he claimed that his

cousin was killed by gang members in 2006 (after the petitioner had

fled to the United States).

Comparing the petitioner's written application for

asylum, his affidavit supplementing that application, and his

hearing testimony, the IJ detected a bevy of discrepancies. The

most important related to the petitioner's failure to mention, in

-4-
his asylum application, any connection between the bus incident and

his supposed unwillingness to support the union. Indeed, his

original filings did not refer at all to any union activity or

union-related violence. Those omissions were all the more glaring

when combined with evidence of the petitioner's statement to a

border patrol agent, credited by the IJ, that the petitioner had

"no fear of returning to El Salvador."

There were other inconsistencies as well. For example,

the petitioner testified that he started working part-time for

Bocadeli in 1997 and became a full-time employee two years later.

This contrasted not only with his asylum application (which noted

a starting date in 1996) but also with a letter from Bocadeli

(which indicated that his employment had commenced in 2000).

Similar inconsistencies plagued the petitioner's descriptions of

the time he spent recuperating from the shooting. Although he

testified that his injuries required him to miss two months of

work, he submitted a letter from his social worker stating that he

had missed only one month.

The petitioner appealed the denial of relief to the BIA,

which affirmed the IJ's ukase. This timely petition for judicial

review followed.

Ordinarily, the court of appeals reviews only the final

order of the BIA. But where, as here, the BIA has adopted the IJ's

decision in whole or in part, we review the pertinent portions of

-5-
the IJ's decision as well. See Bebri v. Mukasey, 545 F.3d 47, 49-

50 (1st Cir. 2008); Albathani v. INS, 318 F.3d 365, 373 (1st Cir.

2003). Factual findings, including credibility determinations, are

assessed under the familiar substantial evidence standard. See

Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007). That standard

requires us to uphold the agency's findings so long as the record

does not "compel a reasonable factfinder to reach a contrary

determination." Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008).

Put another way, such findings will stand whenever they are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." Segran, 511 F.3d at 5 (quoting

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Answers to

abstract legal questions are reviewed de novo, with deference,

however, to the agency's reasonable interpretation of statutes and

regulations within its ken. Pan v. Gonzales, 489 F.3d 80, 85 (1st

Cir. 2007).

To qualify for asylum, an alien must establish that he is

a refugee within the meaning of 8 U.S.C. § 1101(a)(42). Satisfying

this burden requires a showing of either past persecution or a

well-founded fear of future persecution if repatriated, on account

of one of five enumerated grounds, namely, race, religion,

nationality, membership in a particular social group, or political

opinion. See 8 U.S.C. § 1101(a)(42)(A); see also Makhoul v.

Ashcroft, 387 F.3d 75, 80-81 (1st Cir 2004). An alien's own

-6-
testimony may be adequate to carry this burden. Bebri, 545 F.3d at

50. Nevertheless, the alien's testimony need not be taken at face

value; that testimony may be discounted or disregarded if the IJ

reasonably deems it to be "speculative or unworthy of credence."

Id. Hence, "an adverse credibility determination can prove fatal"

to an asylum claim. Id. (quoting Pan, 489 F.3d at 86). We must

inquire, then, as to whether this is such a case.

In denying asylum, the IJ concluded that the petitioner's

story was incredible. The petitioner disputes that

characterization, alleging that the adverse credibility

determination placed excessive weight on trivial inconsistences.

Upon close perscrutation, we find that allegation unfounded.

Before beginning our explanation, we first must answer a

threshold question. The petitioner applied for asylum on January

11, 2006. Because his application postdates the enactment of the

REAL ID Act, Pub. L. 109-13, 119 Stat. 302 (2005), the credibility

definition at issue here is subject to a provision of that Act,

codified at 8 U.S.C. § 1158(b)(1)(B)(iii), rather than to the

preexisting "heart of the matter" rule. The earlier rule required

that an adverse credibility finding be based on inconsistencies that

"pertain to facts central to the merits of the alien's claims."

Bebri, 545 F.3d at 50 (quoting Zheng v. Gonzales, 464 F.3d 60, 63

(1st Cir. 2006)). The new statute disavows that test; it provides

that a factfinder may base a credibility determination on

-7-
inconsistencies, inaccuracies, or falsehoods "without regard to

whether [any such inconsistency, inaccuracy, or falsehood] goes to

the heart of the applicant's claim." 8 U.S.C. § 1158

(b)(1)(B)(iii). We therefore proceed to evaluate the IJ's adverse

credibility determination under that standard and in light of the

totality of the circumstances. See, e.g., Xiu Xia Lin v. Mukasey,

534 F.3d 162, 167 (2d Cir. 2008); Kadia v. Gonzales, 501 F.3d 817,

822 (7th Cir. 2007); Chen v. U.S. Att'y Gen., 463 F.3d 1228, 1233

(11th Cir. 2006).

The petitioner attempts to circumvent this obstacle by

arguing that the new test includes a rationality requirement, thus

rendering it functionally equivalent to the old "heart of the

matter" rule. This reasoning relies heavily on a footnote in Lin

v. Mukasey, 521 F.3d 22, 28 n.3 (1st Cir. 2008). The petitioner

reads the Lin footnote as indicating that the new statute should be

interpreted narrowly. We reject that crabbed reading.

In Lin, we examined the background of this new provision

of the REAL ID Act, noting that its principal purpose was to

eliminate a limitation, elaborated by the Ninth Circuit, on the type

of inconsistencies upon which an IJ could rely in assessing

credibility. See id. (citing Abovian v. INS, 257 F.3d 971, 977-79

(9th Cir. 2001) (Kozinski, J., dissenting from denial of rehearing

en banc)). The net effect of the neoteric provision was to scrap

the "heart of the matter" rule. See id.; see also H.R. Rep. No.

-8-
418, 109th Cong. (2005), reprinted at 151 Cong. Rec. H536-41 (daily

ed. Feb. 10, 2005). However, we warned that even under the new

standard, credibility determinations nonetheless must "be

'reasonable' and 'take into consideration the individual

circumstances' of the applicant." Lin, 521 F.3d at 28 n.3 (quoting

H.R. Rep. No. 109-72, at 167, reprinted in 2005 U.S.C.C.A.N. 240,

292).

The Lin court recognized that this language, if taken

literally, might create a "rationality requirement," but left open

the question of whether (or to what extent) an adverse credibility

determination can be based on inconsistencies not directly related

to the central issues in an alien's case. Id.

Although the petitioner labors to pursue this subject, we

have no occasion to explore it here. The "heart of the matter" rule

is dead, and the main inconsistencies on which the IJ relied — the

absence of any reference to union activity in the petitioner's

initial submissions and his failure there to link the bus incident

to union strife — cannot be dismissed as a minor blemish. These

inconsistencies go to the essence of the petitioner's claim: after

all, the assailants' motivation for singling out the petitioner was

crucial to his assertion that he had been persecuted for, and feared

future retribution on account of, his failure to adopt a pro-union

stance. If the new statute imposes a rationality requirement, that

requirement would be satisfied here.

-9-
 The petitioner has a fallback position. He lamely

suggests that the trauma of the attack prevented him from discussing

the matter fully during the initial stages of the asylum process.

That suggestion lacks any credible support in the record. The

petitioner had no difficulty in describing the attack in great

detail, and it is implausible that he would have recalled the attack

itself but blocked out its union-related aspects.

We need not tarry. While the inconsistencies anent the

petitioner's employment history and recuperation period may be

fribbling, the main inconsistencies noted by the IJ are of a type

and kind that create strong doubts about the veracity of the

petitioner's tale. Of course, the petitioner attempted to explain

away these anomalies, blaming others for them. However, his

explanations are not convincing. That is especially so in light of

his stated lack of any fear of returning to El Salvador. In all

events, the IJ was not required to accept those explanations.

To sum up, the inconsistencies, collectively, viewed in

light of the totality of the circumstances, constitute substantial

evidence sufficient to support the IJ's adverse credibility finding.

See, e.g., Bebri, 545 F.3d at 51; see also Pan, 489 F.3d at 86

(explaining that while "[s]ome of these inconsistencies, in

isolation, may seem like small potatoes . . . their cumulative

effect is great"). In short, we see nothing in the record before

-10-
us that would compel a conclusion that the petitioner's testimony

was credible.

To say more would be to paint the lily. Once we accept

the adverse credibility determination — as we must — the

petitioner's case collapses. Without his own (incredible)

testimony, the record does not show that the petitioner ever

displayed an anti-union animus, let alone that he was targeted on

that account.

We need go no further.2 For the reasons elucidated above,

we deem the denial of asylum to be supported by substantial evidence

on the record. Consequently, the petition for review must be denied

and the final order of removal sustained.

So Ordered.

2
Given our rationale, we have no need to explore the IJ's
alternative holding.

-11-