Jabri v. Holder

United States Court of Appeals
For the First Circuit

No. 10-1616

ABDALLAH JABRI,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Before

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

Robert B. Huntington, with whom Carlos E. Estrada was on
brief, for petitioner.
Charles S. Greene, III, Attorney, Office of Immigration
Litigation, Civil Division, with whom Tony West, Assistant Attorney
General, Civil Division, and Mark C. Walters, Senior Litigation
Counsel, Office of Immigration Litigation, were on brief, for
respondent.

March 16, 2012
 HOWARD, Circuit Judge. Petitioner Abdallah Jabri, a

native and citizen of Jordan, seeks review of a Board of

Immigration Appeals ("BIA" or "Board") order denying him asylum,

withholding of removal, and protection under the Convention Against

Torture ("CAT").1 The Board's order upheld the determination of an

immigration judge ("IJ") that Jabri's claim was not credible and

that he had therefore failed to establish eligibility for relief.

Jabri's principal contention is that this determination was based

on inappropriate conclusions regarding the credibility of his

claim. After careful consideration of the agency decisions and a

close review of the record, we vacate and remand for additional

proceedings.

I.

Jabri entered the United States together with his

immediate family in 1997, when he was eight years old. The family

members subsequently overstayed their visas and settled in New

Hampshire. In April 2009, removal proceedings were initiated

against Jabri, who conceded removability but cross-applied for

asylum, withholding of removal, and protection under CAT.

1
The petitioner also challenges the denial of his alternative
request for voluntary departure. Because this denial was based
solely on a discretionary determination, we lack jurisdiction to
review it. See 8 U.S.C. §§ 1101(f), 1229c(f), 1252(a)(2)(B);
Hussain v. Holder, 576 F.3d 54, 59 (1st Cir. 2009); Bernal-Vallejo
v. INS, 195 F.3d 56, 62-63 (1st Cir. 1999). We accordingly dismiss
this portion of the petition.

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 Jabri's applications center around his claimed conversion

from Islam to Christianity in late 2008. In an affidavit and at a

hearing held before an IJ, Jabri explained that although he was

born into a Muslim family, he grew up in a predominantly Christian

community where he was routinely exposed to Christian teachings and

customs. He stated that as he explored his religious identity,

first as a boy of high school age and then as a young adult, he

felt increasingly drawn to the tenets of Christianity. He

testified to attending Bible studies and Christian church services

and holiday celebrations intermittently beginning in 2004.

Following a year of intensified exploration, and feeling that he

"was falling off track" and "needed a permanent faith in his

life,"2 Jabri claims that he officially converted to Christianity

on December 2, 2008, when he recited a sinner's prayer and took

communion at a Pentecostal church.

Jabri asserts that he will be persecuted on account of

his conversion if returned to Jordan. There was evidence that the

Jordanian constitution stipulates that Muslims' personal status is

governed by Islamic law, according to which apostasy may be

punished by an inability to own property, find employment, marry,

2
Around this time, local authorities were conducting a
criminal investigation into attempted fraudulent use of his uncle's
credit card, an offense to which Jabri pled guilty in April 2009.
The timing of his alleged conversion, coinciding as it does with
his coming to the attention of the authorities, is thus suspicious.

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or maintain custody of one's children. Jabri fears that his

paternal grandfather, who Jabri says is a strongly religious and

prominent member of the Muslim community with strong ties to the

Jordanian government, will wield his influence to ensure that the

full panoply of such consequences come to bear. Moreover, he

testified that he fears that his grandfather may provoke an honor

killing to protect the well-known family name. These concerns,

Jabri avers, are based on multiple threats that his grandfather

made upon learning of his interest in and eventual conversion to

Christianity.

In support of his claim, Jabri submitted testimony and an

affidavit from his father as well as an affidavit from his mother.

Both parents described their son's religious journey, the

grandfather's threats in response, and the power that the

grandfather has to ensure that his threats are carried out. Jabri

also provided affidavits from family friends and church leaders

attesting to his Christian faith, as well as country conditions

evidence illustrating the dangers faced by Christian converts in

Jordan.

The IJ denied Jabri's applications on the grounds that he

and his father were not credible witnesses. The IJ found to be

problematic differences between the testimony of Jabri and that of

his father. The IJ focused on inconsistencies regarding a Bible

that Jabri claimed to have kept, and regarding the details of how

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the grandfather learned of and reacted to Jabri's alleged

conversion. The IJ noted that such inconsistencies "may be

considered minor when taken alone, but are significant when

considered in the aggregate." The IJ did not dispute the potential

consequences of apostasy but, on the basis of these perceived

inconsistencies, disbelieved that Jabri had in fact converted to

Christianity. The IJ further found that the supporting affidavits

and documentary evidence were insufficient to overcome these

discrepancies. The negative credibility finding, in turn, proved

fatal to Jabri's ability to demonstrate that he fell within the

statutory definition of "refugee" or, for purposes of his CAT

claim, would be in danger of being subjected to torture upon return

to Jordan. See 8 C.F.R. §§ 1208.13, 1208.16 (2011).

On review, the Board adopted and affirmed the IJ's

decision, finding the adverse credibility determinations to be

adequately supported by specific evidence in the record. This

timely petition for judicial review followed.

II.

Jabri's arguments properly before us coalesce around a

central theme, namely, that the record establishes that he has a

well-founded fear of persecution on account of his conversion to

Christianity and there were no inconsistencies that would suffice

to undercut the credibility of his claim. His pitch is that, in

finding his claim incredible, the IJ and BIA ignored substantial

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portions of the evidence and placed inappropriate emphasis on

inconsistencies that were not material and in some instances were

nonexistent.

To the extent that the petitioner argues that the

inconsistencies identified by the IJ and BIA concerned immaterial

or "collateral" matters and could not therefore form the basis of

the adverse credibility determinations, he misapprehends the

applicable law. This argument, and the cases that the petitioner

relies on to support it, are based on the "heart of the matter"

rule, whereby an adverse credibility determination may not be

predicated on inconsistencies in an applicant's testimony that do

not go to the heart of his claim. See Bojorques-Villanueva v. INS,

194 F.3d 14, 16 (1st Cir. 1999). That rule was superseded by the

Real ID Act with respect to applications that, like the

petitioner's, were filed on or after May 11, 2005. See Pub. L. No.

109-13, div. B, tit. I, § 101(h)(2), 119 Stat. 231, 305 (2005)

(codified at 8 U.S.C. § 1158 note (2005) (Effective Date of 2005

Amendment)); see also Lin v. Mukasey, 521 F.3d 22, 26-28 (1st Cir.

2008). Under the Real ID Act, a trier of fact may base an adverse

credibility determination on any inconsistency in the record that

has a bearing on the petitioner's veracity, "without regard to

whether [the] inconsistency . . . goes to the heart of the

applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii); 8 U.S.C.

§ 1231(b)(3)(C). Consequently, we may not reverse the adverse

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credibility determinations on the ground that the inconsistencies

relied upon in reaching and affirming those determinations were not

central to Jabri's claim.

The petitioner's suggestion that the adverse credibility

determinations were premised in part on nonexistent inconsistencies

and an incomplete consideration of the evidence does, however, give

us pause. Although we review the agency's factual findings,

including credibility determinations, under the deferential

substantial evidence standard, e.g., Rivas-Mira v. Holder, 556 F.3d

1, 4 (1st Cir. 2009), our deference is not unlimited. "We give

great respect to the IJ [only] so long as he provides specific and

cogent reasons why an inconsistency, or a series of

inconsistencies, render the alien's testimony not credible."

Stanciu v. Holder, 659 F.3d 203, 206 (1st Cir. 2011) (citing

Kartasheva v. Holder, 582 F.3d 96, 105 (1st Cir.2009)). Moreover,

while the Real ID Act permits the IJ to consider inconsistencies

that do not go to the heart of the applicant's claim, he may only

do so as part of his consideration of "the totality of the

circumstances, and all relevant factors." 8 U.S.C.

§ 1158(b)(1)(B)(iii); cf. Lin, 521 F.3d at 25-26 ("In assessing

whether findings are supported by the record, we review the entire

record, not merely the evidence that supports the BIA's

conclusions."). The IJ must, in other words, present a reasoned

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analysis of the evidence as a whole. We are not satisfied that the

IJ has done so here.

The IJ's adverse credibility determinations were

predicated primarily on three perceived inconsistencies between the

testimonies of the petitioner and his father, at least two of which

are not direct inconsistencies. The first concerns the presence of

a Bible in the Jabri household. The petitioner testified that

during a 2005 visit to the United States his grandfather became

aware of Jabri's then-nascent interest in Christianity upon

observing a Bible belonging to the petitioner in the family home.

The IJ found it significant that the petitioner's father testified

that he had never seen a Bible in the home and did not mention the

Bible as one of the issues that the grandfather raised during a

later argument in which the grandfather derided the family's

failure to adhere to the practices of Islam. It is not

implausible, however, that the Bible went unnoticed by the father,

and indeed the father testified that although he himself did not

see the Bible, he had discussed his son's possession of it with his

wife. Nor is it of particular import that the grandfather did not

specifically mention the Bible during the argument in question. In

concluding that had the grandfather seen the Bible, it "would have

. . . been an issue that [he] would have raised that day in the

litany of reasons why he was upset with the [petitioner] and his

siblings," the IJ appears to have assumed that the Bible would have

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been equally if not more troubling to the grandfather than the

issues that he did raise, such as the siblings' frequent

interaction with Christians and their failure to attend mosque, to

pray, and, in the case of the petitioner's sisters, to wear veils.

But whether or not the grandfather mentioned the Bible in the

argument strikes us as having little to do with whether there was

a Bible in the household at some point.

The second alleged inconsistency concerns the extent of

the retaliatory action that the grandfather allegedly threatened

upon learning of the petitioner's conversion. The IJ remarked that

while "the [petitioner] has specially testified that his father

told him that he would be the subject of an honor killing and that

his family would also be tortured[,] [t]he [petitioner]'s father

has made no mention of this." The IJ's decision notes that the

father testified only that the petitioner, and the petitioner

alone, could be "hurt." But the record taken as a whole tells a

different story: the father expressly mentioned the threat of death

elsewhere in his testimony and in his affidavit. Moreover, that

the father did not discuss the possibility of harm to the remainder

of the family is unremarkable given the context of the relevant

colloquy, which focused on the harm the father feared would be

inflicted upon the petitioner.

We are left, then, with the third inconsistency relied

upon by the IJ in reaching his adverse credibility determinations.

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When questioned about the manner and moment in which the

grandfather was apprised of the petitioner's alleged conversion,

the petitioner and his father offered divergent accounts. The

petitioner testified that he disclosed his conversion to his

grandfather during a three-way telephone call with his grandfather

and father in March 2009. He further indicated that the

conversation was prompted by the grandfather, who, the petitioner

believed, had been warned of the conversion by the petitioner's

uncle. The father, meanwhile, testified that he alone told the

grandfather of the conversion in January or February 2009 when,

after much thought and consultation with his wife, he made a

one-on-one call to the grandfather with the explicit purpose of

telling him about the conversion. The father also stated that he

did not inform the petitioner's uncle of the conversion until long

after he had spoken with the grandfather.

Upon careful inspection of the record evidence, we are

left to wonder whether some of this seeming dissimilitude is not

attributable to a failure, on the part of the IJ and the witnesses

alike, to distinguish carefully between exchanges involving the

grandfather during the period of the petitioner's increasing

gravitation towards Christianity, on the one hand, and following

his actual conversion, on the other. Even crediting the agency's

supportable determination that the inconsistencies on this topic

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are irreconcilable, however, the overall negative credibility

finding is suspect.

The IJ's disbelief of the petitioner's claimed conversion

to Christianity rested not on any single inconsistency between the

testimonies of the petitioner and his father, but on all of them in

the aggregate. Moreover, it was on the basis of the aggregate of

perceived inconsistences that the IJ summarily dismissed the whole

of the petitioner's supporting evidence. That evidence included

his mother's testimony by affidavit, which affirmed that he

converted. It also included an affidavit from a local business

owner and friend indicating that he took Jabri to church with him

in 2004 and that the two of them frequently discussed Christianity

throughout Jabri's subsequent path to conversion. Letters from a

pastor and church administrator about Jabri's church attendance

lent additional credence to his claim.

Furthermore, there was consistency in the testimony that

the grandfather had threatened to use his power and influence with

Jordanian officials to punish the petitioner for his apostasy. In

addition, under the laws of Jordan, it appears that such

consequences for apostasy were legal and approved, regardless of

the grandfather's influence.

Having concluded that the record does not adequately

support the IJ's reliance on two of the three primary perceived

inconsistencies that entered into the credibility calculus, we will

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remand to the agency to determine whether any remaining

inconsistencies are sufficient to discredit the petitioner's claim

in its entirety, particularly in view of the evidence in his favor.

See Gailius v. INS, 147 F.3d 34, 47 (1st Cir. 1998); Cordero-Trejo

v. INS, 40 F.3d 482, 492 (1st Cir. 1994). Because any remaining

inconsistencies must be considered in light of "the totality of the

circumstances, and all relevant factors," including not only the

body of potentially corroborating evidence but also the demeanor of

the witnesses, 8 U.S.C. § 1158(b)(1)(B)(iii), a new evidentiary

hearing may be necessary. In this regard, although assignments are

within the agency's discretion, given the prior credibility

determination, confidence would be enhanced if the matter were

assigned to a different IJ.

The order of the BIA is vacated and the matter is

remanded to the BIA for further proceedings consistent with this

opinion.

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