FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FUAD ZAMANOV,
Petitioner, No. 07-72340
v.
Agency No.
A098-144-633
ERIC H. HOLDER, Jr., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 17, 2011*
San Francisco, California
Filed April 29, 2011
Before: J. Clifford Wallace, Ferdinand F. Fernandez, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
5569
ZAMANOV v. HOLDER 5571
COUNSEL
Rhoda Wilkinson Domingo, San Francisco, California, for the
petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Divi-
sion, Susan K. Houser, Senior Litigation Counsel, John J.W.
Inkeles, Trial Attorney, Office of Immigration Litigation, U.S.
Department of Justice, Civil Division, Newark, New Jersey,
for the respondent.
5572 ZAMANOV v. HOLDER
OPINION
CLIFTON, Circuit Judge:
Fuad Zamanov petitions for review of a decision of the
Board of Immigration Appeals adopting and affirming an
immigration judge’s denial of his applications for asylum,
withholding of removal, and protection under the Convention
Against Torture. The IJ found that Zamanov was not credible
due to inconsistencies between his testimony before an asy-
lum officer and his subsequent written statements and testi-
mony, which described additional incidents of persecution.
Zamanov challenges the adverse credibility determination.
We conclude that substantial evidence supported the IJ’s con-
clusion that the additional incidents materially altered
Zamanov’s account of persecution in a way that cast doubt on
his credibility. Accordingly, we deny the petition.
I. Background
Zamanov is a native of the Soviet Union and citizen of
Azerbaijan who was admitted to the United States in 2004
without valid entry documents. The Department of Homeland
Security started removal proceedings against him, and
Zamanov filed an application for asylum, withholding of
removal, and relief under the Convention Against Torture.
The basis of Zamanov’s claim was his alleged political perse-
cution in Azerbaijan on account of his participation in the
National Front or Popular Front Party, the main political
opposition party in Azerbaijan. Zamanov stated that he began
activity with the party in 1989 and that he attended meetings
about once a month.
In his I-589 application filed in June 2004 and in his subse-
quent interview with the asylum officer, Zamanov alleged
having been mistreated by the government on four separate
occasions because of his political activities.
ZAMANOV v. HOLDER 5573
The first, according to his application and interview,
occurred in 2000, when non-uniformed police officers pushed
their way into his home, gagged and bound Zamanov and his
family, and beat him. His brother went missing shortly after-
wards. Zamanov was informed four days later that he had
died of a heart attack.
Later, policemen arrested Zamanov at his workplace. He
was taken to the office of a local official named Major
Babaev, who demanded that he become an informant and
threatened his life. When Zamanov refused, he was beaten by
police officers and detained for several hours.
Zamanov subsequently obtained a tourist visa and entered
the U.S. in 2000. He returned to Azerbaijan in February 2002
to protect his family from continuing harassment by govern-
ment officials. Upon his return, he was again summoned to
Major Babaev’s office. Babaev threatened Zamanov that if he
refused to sign a statement promising not to engage in politi-
cal activities, he would be charged with possession of a gun
and narcotics. After signing the statement, Zamanov was
released. He was later told that his services as an informant
were no longer needed but he would have to pay a monthly
bribe of $200.
In March 2004 he was again taken to Major Babaev, who
told him not to continue his political activities. Zamanov was
told that his monthly payment would increase to $700 a
month. Because he could not afford the payment and feared
for his family’s safety, Zamanov decided to leave Azerbaijan.
On April 5, 2004, he drove to Moscow with his family and
flew to Mexico City, then to Tijuana, where he paid a smug-
gler to transport him into the United States.
The asylum officer determined that Zamanov was not cred-
ible in material respects and was thus not eligible for asylum.
The asylum officer noted that Zamanov claimed that he had
worked on the 1998 presidential campaign in Azerbaijan, yet
5574 ZAMANOV v. HOLDER
he named people as candidates who were not in the race.
Zamanov stated that the party’s leader, Elchibay, was still in
Azerbaijan in 2004, but Elchibay died in 2000.
Zamanov subsequently hired an attorney to help him with
his asylum application. At the start of his merits hearing in
immigration court, Zamanov submitted a second personal
statement dated July 22, 2005. This statement referred to three
separate incidents of mistreatment that Zamanov had not cited
before the asylum officer.
In his supplemental declaration, Zamanov claimed that in
1996 he had been arrested for protesting what he believed to
be the government’s falsification of results from the presiden-
tial election. He helped distribute flyers for a demonstration
which approximately 1,000 people attended. The police beat
him and kicked him, forced him into a van, and took him to
the police station and held him for a day.
Zamanov also claimed to have served as a poll watcher dur-
ing the 2003 presidential election. After observing that offi-
cials at the polling station were passing out pre-marked
ballots, Zamanov attempted to complain to officials about the
ballots. The police told him that he was disturbing the peace.
Zamanov called party headquarters to report the incident.
Western observers subsequently came to the polling station.
Zamanov approached them and told them about the ballots.
He was apprehended by the police and taken to the police sta-
tion, beaten, held for eight hours, then released.
Finally, Zamanov stated that in October 2003 he partici-
pated in a demonstration to protest the presidential election.
He was again attacked by the police, beaten, and taken to the
police station and held for three days before being released.
In immigration court, Zamanov testified regarding all seven
of the incidents of persecution described above, including
those submitted in his supplemental declaration. When the
ZAMANOV v. HOLDER 5575
immigration judge (“IJ”) asked him why he had not brought
up the 1996 and 2003 arrests before the asylum officer,
though he had been given an opportunity to do so, Zamanov
said that the man who helped him prepare the asylum applica-
tion, an acquaintance who was not an attorney, had not
included these incidents in the I-589 application. The
acquaintance told Zamanov that he should not testify to any-
thing that was not in the written application. Zamanov main-
tained that he had been candid with the asylum officer even
though he did not mention the 1996 and 2003 incidents. “I
testified about all my writing, whatever he hadn’t written
down I didn’t talk about that.”
The IJ concluded that Zamanov was not credible. In partic-
ular, in an October 27, 2005 decision, the IJ noted Zamanov’s
failure to mention in the asylum interview the three instances
of mistreatment he described in his supplemental declaration:
being beaten and arrested at the 1996 demonstration; being
arrested while serving as a poll watcher in 2003; and being
mistreated following the rally in 2003. The IJ described these
as material omissions. The IJ found Zamanov’s explanation
for his failure to testify about these incidents before the asy-
lum officer to be “completely inadequate,” stating that
Zamanov “knew that he was not telling his complete story. He
was asked whether there were any important events which he
was not testifying to, and he said that there were not.” On
appeal, the BIA adopted and affirmed the decision of the IJ.
II. Discussion
An adverse credibility determination is reviewed under the
substantial evidence standard. See Singh-Kaur v. INS, 183
F.3d 1147, 1149-50 (9th Cir. 1999); INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992). When an IJ provides a specific rea-
son for an adverse credibility finding, “her judgment merits
deference as long as (1) ‘the reasoning employed by the IJ is
[not] fatally flawed,’ and (2) the reason is ‘substantial and
bear[s] a legitimate nexus to the finding.’ ” Wang v. INS, 352
5576 ZAMANOV v. HOLDER
F.3d 1250, 1258 (9th Cir. 2003). The IJ’s reasons for finding
Zamanov not credible were substantial, adequately reasoned,
and supported by evidence in the record.
[1] While “minor inconsistencies” that “reveal nothing
about an asylum applicant’s fear for his safety are not an ade-
quate basis for an adverse credibility finding,”1 Vilorio-Lopez
v. INS, 852 F.2d 1137, 1142 (9th Cir. 1998), inconsistencies
regarding events that form the basis of the asylum claim are
sufficient to support an adverse credibility determination.2 See
Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir. 1990).
Testimony about the events leading up to the petitioner’s
departure, or about the circumstances that led to the persecu-
tion, go to the “heart of the claim.” See Chebchoub v. INS,
257 F.3d 1038, 1043 (9th Cir. 2001) (testimony as to the num-
ber of times applicant was arrested before his departure went
to the heart of the claim); Don v. Gonzales, 476 F.3d 738, 741
(9th Cir. 2007) (details regarding the event that allegedly
spurred the persecution).
[2] Material alterations in the applicant’s account of perse-
cution are sufficient to support an adverse credibility finding.
See Ceballos-Castillo, 904 F.2d at 520. We have found a
material alteration where an asylum applicant presented sub-
stantially different accounts of mistreatment in successive
1
Minor inconsistencies may include, for example, small discrepancies in
dates attributable to language problems or typographical errors, or a fail-
ure to remember non-material, trivial details only incidentally related to
the claim of persecution. See Kaur v. Gonzales, 418 F.3d 1061, 1064-65
(9th Cir. 2005); Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir. 2003).
2
The REAL ID Act, passed in 2005, changed the standard governing
adverse credibility determinations. Under REAL ID, “inconsistencies no
longer need to ‘go to the heart’ of the petitioner’s claim to form the basis
of an adverse credibility determination.” Shrestha v. Holder, 590 F.3d
1034, 1043 (9th Cir. 2010); 8 U.S.C. § 1158(b)(1)(B)(iii). Because
Zamanov filed his asylum application prior to May 11, 2005, his case is
governed by pre-REAL ID case law. See, e.g., Sinha v. Holder, 564 F.3d
1015, 1021 n. 3 (9th Cir. 2009).
ZAMANOV v. HOLDER 5577
asylum petitions, or changed the basis of his claim of political
persecution between his asylum application and subsequent
testimony. See Valderrama v. INS, 260 F.3d 1083, 1085 (9th
Cir. 2001); de Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th
Cir. 1997); Ceballos-Castillo, 904 F.2d at 520.
[3] The incidents of arrest and mistreatment that Zamanov
cited in the supplemental declaration after the asylum inter-
view were not minor, collateral details, as Zamanov claimed.
Instead, these events — three arrests for participating in anti-
government demonstrations and election monitoring — went
to the core of his alleged fear of political persecution. See
Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006) (“An
inconsistency goes to the heart of a claim if it concerns events
central to petitioner’s version of why he was persecuted and
fled.”) With these incidents, Zamanov materially altered his
entire story in a way that cast doubt on his credibility. See
Kaur, 418 F.3d at 1065-66.
[4] Zamanov’s supplemental declaration and his testimony
before the IJ tell a much different — and more compelling —
story of persecution than his initial application and testimony
before the asylum officer. As Zamanov pointed out, we have
held that a mere lack of detail in the initial asylum application
that the applicant later clarifies at the immigration hearing
cannot serve as a basis for an adverse credibility finding. See
Smolniakova v. Gonzales, 422 F.3d 1037 (9th Cir. 2005).3
Here, however, Zamanov did not merely elaborate on events
that had previously been referenced. While Zamanov’s earlier
story cited only the police break-in to his home and Major
3
In Smolniakova, we held that the asylum seeker’s initial application,
which stated that she was “mistreated and threatened” several times, and
her testimony at the merits hearing, in which she gave specific examples
of her persecution in Russia, were not inconsistent “simply because she
initially failed to describe all prior incidents of mistreatment and persecu-
tion.” Smolniakova, 422 F.3d at 1045; see also Akinmade v. INS, 196 F.3d
951, 956-57 (9th Cir. 1999); Aguilera-Cota v. INS, 914 F.2d 1375, 1382
(9th Cir. 1990).
5578 ZAMANOV v. HOLDER
Babaev’s threats and extortion as evidence of persecution, the
additions described his activities serving as a poll watcher and
protesting the government’s alleged falsification of election
results. These are quintessential acts of political protest. It
was not unreasonable for the IJ to be suspicious as to why
Zamanov brought up these incidents, which would have
added great weight to his claim of political persecution, only
after his unsuccessful appearance before the asylum officer.
[5] The IJ clearly identified all the bases of the adverse
credibility finding and offered a “specific, cogent” explana-
tion. Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994). The
IJ considered and addressed, and ultimately rejected,
Zamanov’s explanation for omitting the 1996 and 2003 inci-
dents — that he had been told by the man who prepared his
asylum application that he should not mention events that
were not in the written application. Zamanov’s explanation
for filing the supplemental declaration — that his new attor-
ney urged him to correct his earlier omissions — is plausible.
However, the record does not compel the finding that the IJ’s
unwillingness to believe this explanation, in light of the
importance of the omitted incidents to his asylum claim, was
erroneous. See Pal v. INS, 204 F.3d 935, 938 (9th Cir. 2000).
Moreover, because Zamonov would necessarily have been
aware of the 1996 and 2003 incidents when he appeared
before the asylum officer, if they had in fact occurred, it was
not unreasonable for the IJ to conclude that Zamanov was not
being candid when he told that officer that he had nothing to
add to his asylum claim.
III. Conclusion
[6] Substantial evidence supported the immigration judge’s
conclusion that the additional incidents Zamanov described in
his supplemental declaration materially altered his account of
persecution and created inconsistencies in his testimony that
cast doubt on his credibility.
PETITION DENIED.