Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-28-2004
Kosim v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2786
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-2786
BROTOSENO KOSIM,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
BIA No. A79-308-030
Submitted Under Third Circuit LAR 34.1(a)
September 27, 2004
Before: RENDELL, FUENTES, and SMITH, Circuit Judges.
(Filed: September 28, 2004)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Brotoseno Kosim, a native citizen of Indonesia, petitions for review of the Board
of Immigration Appeals’ (“BIA’s”) decision denying his application for asylum,
withholding of removal and protection under the Convention Against Torture (“CAT”).
The BIA affirmed without opinion the finding of the Immigration Judge (“IJ”) that Kosim
lacked credibility based on inconsistent statements made in his testimony and his written
asylum application statement. In an alternative ruling, the IJ concluded that even if his
testimony were deemed credible, Kosim had failed to establish eligibility for asylum.
Thus, the IJ stated that it was unnecessary for him to decide whether asylum was
appropriate as a matter of discretion. We have jurisdiction under 8 U.S.C. § 1252. We
will deny Kosim’s petition for review.
I.
Kosim, an ethnic Chinese, was the sole witness at his asylum hearing where he
provided a narrative of his experiences in Indonesia. From that narrative, we extract the
following relevant facts. In August 1997, Kosim was employed as an assistant supervisor
at a shoe factory in Jombang, East Java. Because he was fluent in both Mandarin and
Indonesian, the owner and manager depended on Kosim to communicate with the workers
who spoke only Indonesian. Kosim testified that the employees went on strike when an
employee was fired for stealing. According to Kosim, many of the workers in the factory
were angry with him because they felt he had not done enough to get the fired employee
rehired. While standing with a group of supervisors discussing the demands of the
striking workers, Kosim was allegedly punched in the cheek. As a result of this incident,
Kosim fled and did not return to work for several days.
2
On May 20, 1998, Kosim was robbed and beaten at an intersection in Jakarta while
riding his motorcycle. Kosim testified that the beating was stopped by an Indonesian
Marine who intervened. As a consequence of the beating, Kosim suffered a bloody
scratch to his right chest for which he did not seek medical attention. Kosim did not
report the incident to the police.
In June of 1998, Kosim left his job at the shoe factory and began working for
Golden Sea Trading Company. Kosim testified that his boss told him to take care of a
situation involving employees who were suspected of cheating the company. Kosim
contends that when he did so, the workers became angry with him and verbally fought
with him. In addition to these events, Kosim also testified that when he was about eleven
years of age, the other students in his class discriminated against him and hit him.
In his oral decision, the IJ denied Kosim’s asylum application based on a finding
that Kosim’s testimony was not credible.1 The IJ made an alternative finding that, even if
the testimony had been credible, Kosim failed to produce any evidence to meet his burden
that he had suffered past persecution, or that he had a well-founded fear of future
persecution, on account of his Chinese ethnicity in Indonesia. The BIA summarily
1
Because the IJ rejected Kosim’s asylum application based on his adverse credibility
finding, and alternatively on the merits, the IJ also concluded that Kosim failed to satisfy
the more exacting burden of proof required for withholding of removal or protection
under the CAT. We need not examine the IJ’s decision regarding these alternate forms of
relief as Kosim does not challenge them before us.
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affirmed the IJ’s opinion pursuant to 8 C.F.R. § 1003.1(e)(4).
On appeal, Kosim raises two issues. First, he urges that the IJ erred in his finding
of adverse credibility. Second, he contends that he deserves a “favorable exercise of
discretion” in the form of a grant of asylum. Notably, Kosim does not challenge the IJ’s
alternate finding that, on the merits, he failed to produce evidence to establish eligibility
for asylum.
II.
The Attorney General may grant asylum to any alien who is unable or unwilling to
return to his or her home country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The burden to prove eligibility
for asylum lies with the applicant, who must establish past persecution or a genuine fear
of persecution that a reasonable person in the same circumstances would share. The
applicant’s own testimony may be sufficient to establish eligibility for asylum, as long as
the testimony is credible. See 8 C.F.R. § 208.13(a).
Where the BIA issues a summary affirmance, we review the IJ’s decision as if it
were the decision of the BIA. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en
banc). Our review is limited to ensuring that any findings made by the IJ are supported
by substantial evidence. Id. We may reverse the IJ’s decision only if “any reasonable
adjudicator [would] be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
4
This Court “will not disturb the IJ’s credibility determination and findings of fact if they
are ‘supported by reasonable, substantial and probative evidence on the record considered
as a whole.’” Tarrawally v. Aschroft, 338 F.3d 180, 184 (3d Cir. 2003) (quoting
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)). It is clear that adverse
credibility determinations of an IJ based on speculation or conjecture, rather than on
evidence in the record, are reversible. Gao v. Aschroft, 299 F.3d 266, 272 (3d Cir. 2002).
III.
The IJ found that Kosim’s testimony was not credible, stating that there were too
many inconsistencies with respect to important issues and facts between his asylum
application and his testimony at the hearing. Kosim challenges that finding, arguing that
the IJ’s determination was based on speculation and was not supported by substantial
evidence. We disagree.2
The record shows several inconsistencies between Kosim’s testimony and his
asylum application, as noted by the IJ. We have stated that an IJ should be careful before
placing too much weight on a discrepancy between an asylum application and subsequent
testimony. Zubeda v. Ashcroft, 333 F.3d 463, 476-77 (3d Cir. 2003). However, we have
2
After challenging the credibility determination in this case, Kosim proceeds to urge us
to conclude that the IJ should have exercised his discretion by granting asylum. However,
an IJ may only do so after finding that an alien is statutorily eligible for asylum in the first
instance. Here, the IJ found that, on the merits, Kosim had not met his burden and was
therefore ineligible. As we have indicated, Kosim does not challenge this in his petition
for review. Therefore, we may not disregard the IJ’s finding of ineligibility and proceed
to review a discretionary decision that the IJ himself did not make.
5
stated that substantial evidence supports a finding of adverse credibility where the record
contains unexplained inconsistencies between the asylum applicant’s written statement
and his testimony that are material, substantial, and go to the heart of the case. See Xie v.
Ashcroft, 359 F.3d 239 (3d Cir. 2004). In this case, while Kosim did acknowledge his
failure to mention certain events found in his asylum application, during his direct
testimony he failed to provide any persuasive explanation for the discrepancies.
For example, Kosim testified to the court that in August of 1997 he was an
assistant supervisor in a shoe factory in Jombang where the employees were both Chinese
and Indonesian. Kosim’s application for asylum states that the workers were all
Indonesian. When questioned on cross-examination about the inconsistency, he could not
offer an explanation. Kosim blamed any discrepancies between his statements on
“whoever accompanied him to his interview with his first attorney.” The IJ rejected this
explanation and found it implausible that, as a supervisor, Kosim would not have known
the ethnic makeup of the factory, especially when his ethnicity was at the heart of the
claimed persecution.
Kosim further testified that during the May 29, 1998 attack, he was saved by an
Indonesian Marine. However, Kosim’s application made no mention of this fact.
Likewise, he told the court that his motorcycle was damaged and had to be pushed to a
friend’s home, while his application stated the he used the damaged motorcycle to get
away. In addition, the government noted on cross-examination discrepancies between
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Kosim’s testimony and asylum application regarding the distance between two Indonesian
cities. The government also noted that Kosim’s application failed to mention anything
with respect to either of his jobs relating to a workers’ strike or a situation in which
employees were cheating the company. Apparently, Kosim provided no explanation for
these discrepancies.
Finally, when questioned about why he never mentioned in his direct testimony an
episode contained in his application where he was robbed at knife point by native
Indonesians while he was driving in his car, Kosim stated that he forgot to mention it
“because he was nervous.” The IJ again was unconvinced that Kosim would forget to
include such a traumatic event.
We are convinced that the IJ’s credibility determination rested upon substantial
evidence in the record. Kosim’s claim of persecution is based on his descriptions of
specific events that contain unexplained discrepancies, omissions, and inconsistencies. In
each case, when asked to reconcile the testimonial inconsistencies and omissions, Kosim
offered unsatisfactory explanations.
Accordingly, we will DENY the petition for review.
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