United States Court of Appeals
For the First Circuit
No. 05-1454
FATMIR HOXHA; ERMIRA HOXHA; VINCENZO HOXHA; ANXHELO HOXHA,
Petitioners,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lipez, Circuit Judges,
and DiClerico,* District Judge.
Daniel F. Cashman, with whom Cashman & Lovely, P.C. and
Susanna L. Shafer were on brief, for petitioners.
H.S. García, United States Attorney, with whom Nelson Pérez-
Sosa and Scott Anderson, Assistant United States Attorneys, were on
brief, for respondent.
May 3, 2006
* Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. We must decide whether substantial
evidence supports the Board of Immigration Appeals' (BIA)
affirmance without opinion of an Immigration Judge's (IJ) denial of
the petitioners' application for asylum based on an adverse
credibility determination. After reviewing the testimony and
documents in the record, we affirm.
I.
On March 31, 2002, Fatmir Hoxha ("Hoxha"), his wife,
Ermira Hoxha, and their two children, Vincenzo and Anxhelo Hoxha,
entered the United States without proper documentation. Several
months later, on June 19, 2002, Hoxha applied for asylum and
withholding of removal, and for relief under the Convention Against
Torture, asserting that he and his family were persecuted on
account of his membership in the Democratic Party of Albania.1 In
support of his application, Hoxha submitted two declarations: one
dated June 2002, and the other July 2002. In August 2002, the INS
served Hoxha with a Notice to Appear, charging him with
removeability under § 237(a)(1)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(1)(A). On September 30, 2003,
after hearing testimony on the merits of Hoxha's application, the
IJ denied it and entered an order of removal to Albania.
Specifically, the IJ made a negative credibility determination
1
Hoxha's wife and children are derivatives listed on his asylum
application.
-2-
based on discrepancies between Hoxha’s two declarations, and
between those declarations and his in-court testimony. The BIA
issued a summary affirmance without opinion on March 28, 2003.2
Hoxha filed this petition, claiming that the IJ's decision,
affirmed by the BIA, is not supported by substantial evidence, and
that the BIA violated its own regulatory procedure by streamlining
Hoxha's case and affirming the IJ's decision without opinion.
II.
We summarize the testimonial and documentary evidence
that Hoxha presented to the IJ and then discuss the IJ's evaluation
of that evidence.
A. Summary of Evidence
Hoxha was born in Tirana, the capital of Albania, where
he lived for approximately thirty-five years before coming to the
United States. Hoxha was self-employed as the owner of a "fast
food business." In 1995, he joined the ruling Democratic Party of
Albania, "participat[ing] in every rally and meeting," contributing
money, and "help[ing] recruit[] young people, new people to
increase the membership." The Democratic Party remained in power
from March 1992 until June 1997, when the Socialist Party was
elected. Hoxha's problems with the government then began.
2
"Where, as here, the BIA summarily affirms the decision of the
IJ, we review the decision of the IJ." Mihaylov v. Ashcroft, 379
F.3d 15, 18 n.3 (1st Cir. 2004).
-3-
On June 30, 1997, police beat Hoxha over the head with
clubs while he attended a meeting in the public square protesting
the Socialist Party's "manipulation of the election that took place
in June." Police arrested Hoxha, forced him into a car, and
continued to beat him on the way to "prison number 313." Once
there, police beat Hoxha more severely, using their fists and
clubs, and kicking him all over his body. Hoxha remained in
custody overnight. The following day, police asked Hoxha to sign
a document stating that he had participated in an illegal meeting,
which he refused to do. Before releasing Hoxha, police told him
not to attend any more meetings.
The following year, on March 31, 1998, a suspicious fire
occurred at the home of Hoxha's father during a visit from Hoxha,
his son Anxhelo, and several of Anxehlo's friends. Hoxha "heard
the children screaming" and "saw flames coming out of the room."
His son "had flames on his arm and another child also and my son's
hands were taken afire." Hoxha took his son to the hospital, where
his son remained for seventeen days.
On May 24, 1998, when Hoxha was returning from a
Democratic Party rally, people in civilian clothing hit him "very
hard without any warning or saying anything," leaving him
unconscious on the ground where he remained for several hours.
Hoxha, accompanied by his wife, sought medical treatment at the
hospital for his injuries. One year later, on September 12, 1999,
-4-
police again arrested Hoxha at an "illegal meeting" of the
Democratic Party. At the police station, police subjected Hoxha to
"very hard heavy physical violence," including beatings "with
rubber sticks and the butt of a gun." Hoxha explains that police
"cut my eyebrow, all the parts of my body, they were hitting me.
They tied me to the chair. They were hitting me on the legs and on
the head . . . ." The police then told Hoxha that they had started
the fire that injured his son, stating that "for 45 years we are in
power, we are going to kill you. Like we burned your house. We
are going to try to burn your house. We are going to burn you
out."
On March 22, 2000, at a Democratic Party meeting in the
public square celebrating "the anniversary of the victory of
democracy," police arrested Hoxha and beat him in custody. Hoxha
explains that police were "pulling [his] hair" and hitting him on
the back, and that he "was unconscious several time[s] from the
police brutality." Police held him in custody overnight and
released him the following day, warning him that if they saw him at
any more meetings, he "was the first one [they were] going to
grab."
The following month, three men in civilian clothing
approached him on the street and began beating him. They "told
[him] to stop [his] political activities" and then left him on the
ground. On June 5, 2000, police approached Hoxha at a Democratic
-5-
Party meeting and began punching him. According to Hoxha, "[t]wo
of them were holding me. One of them was punching me in the
stomach with police clubs in the back." Hoxha received medical
treatment for "shock[] and [] depress[ion]."
In October of that year, Hoxha was chosen to represent
the Democratic Party as a member of the commission charged with
ensuring the fairness of the local mayoral elections. Hoxha began
receiving anonymous and threatening phone calls and letters
throughout the month, telling him that he "should pull out . . .
should resign as a member of the democratic party[], [and] threats
against [his] children." Immediately following the elections, on
his way out of the election office, Hoxha was attacked by several
people "dressed in civilian clothing," who thr[e]w [him] to the
ground, hitting [him] hard, [with] heavy objects, [and] punching
[him]." Hoxha sought medical treatment at the hospital for a cut
on the back of his head and received several stitches.
On October 26, 2000, police approached Hoxha and his wife
in the public square as they protested the manipulation of the
mayoral elections. One police officer "threw [Hoxha] on the ground
. . . punched [him], kicked [him] on the lip [and] punched him,"
while other officers hit his wife and pulled her hair. Police then
handcuffed Hoxha and brought him and his wife to the police
station, where they "beat[] [him] with police clubs and kicking."
Hoxha was "bleeding very much," and police brought him to the
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hospital, where he received stitches for the cut on his lip. He
was then brought back to the police station, where police
questioned him about his participation in the illegal meeting and
told him "not to go to meetings anymore because they are illegal."
Hoxha responded by telling the police that he would "take them to
court" for beating him and his wife. The police released Hoxha and
his wife after three days. Hoxha's wife "had a swollen eye. In
the face, they slapped her and they were pulling her hair in the
cell." After his release, Hoxha filed a complaint with the local
district attorney's office, but the complaint was never prosecuted.
On January 24, 2001, Hoxha's house was hit with "heavy
machine guns," which injured his son, Anxhelo, whose "left leg was
bleeding." Hoxha and his wife took their son to the hospital, but
were told that the hospital lacked "conditions to operate on him,"
and that they should instead take their son to Greece to receive
treatment. Hoxha arranged for his brother, who lived in Greece, to
take Anxhelo to a hospital there. Anxhelo returned from Greece
over a week later, on approximately February 3 or 4. Shortly
thereafter, Hoxha decided to flee Albania.
On February 8, 2001, Hoxha sold his fast food business;
the following month, he and his family left Tirana for Vlora,
Albania. They remained in Vlora for over a year. During that
time, in December 2001, Hoxha briefly returned to Tirana to discuss
obtaining passports so that he and his family could leave Albania.
-7-
While in Tirana, Hoxha attended a Democratic Party activity.
During a lunch break, approximately four civilians attacked Hoxha
as he sat with several friends at a coffee shop. According to
Hoxha, "I fell down and I was bleeding and they said – you are the
one criticizing everywhere that you are going? – You forgot
something that we are back in power son of the beach [sic]." They
then kicked him and beat him.
On March 30, 2002, Hoxha and his family traveled by plane
to Milan, Italy, and then to Montreal, Canada, where they arrived
on March 31, 2002. That same day, Hoxha and his family crossed the
Canadian border into the United States using passports provided by
a smuggler, took a taxi to Albany, New York, and arrived in New
York City by bus.
Hoxha also submitted numerous documentary sources in
support of his application, including: two membership
verifications for the Democratic Party; an alleged certificate from
the district attorney of Tirana stating that Hoxha and his wife
were "mistreated by the police" following a demonstration on
October 26, 2000; a membership card from the Association of Ex-
Politically Persecuted of Albania stating that he "belonged to a
persecuted family"; a medical report from the University Hospital
Center of Tirana regarding the treatment of Anxhelo Hoxha for
burns; an alleged newspaper article dated May 25, 2001, regarding
the persecution of Hoxha and his family; and the State Department's
-8-
2002 Country Reports on Human Rights Practices for Albania, which
reported that "police beat and otherwise abused suspects, detainees
and prisoners," and that police "arbitrarily arrested and detained
persons."
B. IJ's Evaluation of Evidence
The IJ denied Hoxha's request for asylum, withholding of
removal, and withholding under the Convention Against Torture,
based on an adverse credibility determination.3 In reaching this
determination, the IJ recognized that "a credibility assessment is
not reducible to a finite formula, and that all factors must be
considered both individually and cumulatively." While "mere
trivial errors or errors incidental to a claim are insufficient for
an adverse credibility finding," the IJ reasoned, "discrepancies
and omissions [that] cumulatively go to the heart of the claim or
otherwise show testimony ultimately dubious" support such a
finding. Where these discrepancies and omissions exist, the IJ
noted, "the three prong test of [In re A-S-, 21 I & N Dec. 1106,
1109 (BIA 1998)], must also be met," that is,
(1) the discrepancies and omissions described by the
Immigration Judge must actually be present in the record;
(2) the discrepancies and omissions must provide
specific and cogent reasons to conclude that the alien
provided incredible testimony; and
3
According to the IJ, "[d]espite the adverse credibility finding,
the Court did find th[e] portion of [Hoxha's] testimony, relative
to his manner and date of arrival in the United States, to be
sufficiently credible to justify considering [his] application for
asylum on the merits."
-9-
(3) a convincing explanation for the discrepancies
or omissions must not have been supplied by the alien.
Even where these credibility factors are present, the IJ
noted that "there may be circumstances where an individual's
ability to recall dates and times would be in doubt, but should not
undermine the individual's credibility." These circumstances
include where an individual has "suffered traumatic occurrences
distant in time and in a manner that can impair his ability to
provide chronologically cogent and persuasive testimony," or where
an individual who "is not represented by counsel, either in the
preparation of the application or in Court," is "unartful" in the
presentation of his case.
The IJ determined that, in light of all of these factors,
"[t]he discrepancies and omissions in this case are significant,
and cause this Court to have so [sic] serious doubts about the
respondent's credibility that the Court is without recourse, but to
enter an adverse credibility finding." In making this
determination, the IJ noted numerous inconsistencies between
Hoxha's two declarations, and between those declarations and his
in-court testimony. Hoxha's first declaration does not reference
the March 31, 1998 fire that injured his son, and the second
declaration states that the fire occurred on March 3, not March 31,
1998. Neither declaration mentions that during the September 12,
1999 incident, police admitted to setting the fire. While Hoxha's
-10-
testimony and second declaration both refer to his being beaten
following the mayoral elections in October 2000, Hoxha's first
declaration states that the elections took place one year later in
October 2001. In addition, neither declaration mentions the
October 26, 2000 incident in which police beat and detained Hoxha
and his wife.
The IJ found "very significant . . . the fact that the
respondent was unequivocal that he says that he sold his business
on February 8, 2001, while both declarations indicate that the
respondent's business was sold by him in August of 2000." The IJ
also noted the "drastically different" reasons that Hoxha gave for
selling his business: Hoxha testified that he sold his business
shortly after his son was injured by heavy artillery and was sent
to Greece for treatment, while "in both declarations, the
respondent stated that the business was sold after they were
constantly being threatened by the secret service." The IJ also
found "very significant" the discrepancy surrounding the date on
which Hoxha's son returned from Greece after receiving medical
treatment. According to the IJ, "[t]he respondent was clear that
his son returned from Greece in early February perhaps February 4,
2001, while both declarations state that his son returned on March
4, 2001." Lastly, the IJ notes that unlike his second declaration
and testimony, Hoxha's first declaration does not mention the
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December 2001 incident in which he was attacked by several
civilians upon returning to Tirana.
The IJ stated that he was also troubled by the fact that
Hoxha's attorney knew of only one of the two declarations submitted
by Hoxha and thus knew nothing of the inconsistencies between the
two. By failing to address these inconsistencies in a supplemental
or amended application prior to the hearing before the IJ, Hoxha's
attorney "effectively ratified one or both declarations that
existed in this record." In addition, while Hoxha claimed that he
went over his application with his attorney, neither Hoxha nor his
attorney seemed to know of the inconsistencies between the
declarations and the testimony that Hoxha planned to give at the
hearing before the IJ. As a result, the IJ noted, Hoxha made no
attempt at the hearing to address the inconsistencies between his
two declarations and between the declarations and his testimony.
Based on this evidence, the IJ determined that he could
not enter a favorable credibility finding. "[D]espite the
existence of documentation in the record that on its face seems to
verify much of what the respondent has claimed happened," the IJ
stated that the documents proffered by Hoxha were "not
authenticated and their mere existence is insufficient to overcome
the adverse credibility finding . . . ." In addition, the IJ noted
that Hoxha did not attempt to rehabilitate his credibility by
providing corroborating evidence, such as documentation of his
-12-
son's medical treatment in Greece or his own medical treatment in
Tirana. "If credible," the IJ noted,
there is certainly nothing inherently implausible about
the respondent's claim, given the now evolving conditions
in Albania. However, on this record, the Court finds
that the respondent has not met his burden of proof and
persuasion, in that he has not presented an adequately
credible claim in light of the content of his testimony
and the discrepancies that exist both between his
testimony and the declarations, as well as to each
declaration itself.
III.
A. Standard of Review and Burden of Proof
We review the IJ's factual findings and credibility
determinations "under the deferential substantial evidence
standard." Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir. 2005).
"The IJ's determination must stand 'unless any reasonable
adjudicator would be compelled to conclude to the contrary.'" Id.
(quoting 8 U.S.C. § 1252(b)(4)(B)). We will give great deference
to an IJ's credibility determinations "so long as the IJ provides
specific reasons for those determinations." Id. (internal citation
and quotation marks omitted). "[W]e will remand if the agency
fails to state with sufficient particularity and clarity the
reasons for denial of asylum or otherwise to offer legally
sufficient reasons for its decision." Mihaylov, 379 F.3d at 21
(internal citation and quotation marks omitted); see also Cordero-
Trojo v. INS, 40 F.3d 482, 487 (1st Cir. 1994) ("[D]eference is not
due where findings and conclusions are based on inferences or
-13-
presumptions that are not reasonably grounded in the record, viewed
as a whole, or are merely personal views of the immigration
judge."). When a case "rises and falls purely on an IJ's
credibility finding," it is particularly important that the
decision-maker "carefully detail the reasoning leading to the
adverse finding." Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d
Cir. 2003).
The burden of proof is on the asylum applicant to
demonstrate that he or she meets the statutory definition of a
refugee and is therefore eligible for asylum. See 8 C.F.R. §
1208.13(a). "The applicant may qualify as a refugee either because
he or she has suffered past persecution or because he or she has a
well-founded fear of future persecution [on account of race,
religion, nationality, membership in a particular social group, or
political opinion]." 8 C.F.R. § 1208.13(b). "An applicant's
testimony, 'if credible, may be sufficient to sustain the burden of
proof without corroboration.'" Dhima, 416 F.3d at 95 (quoting 8
C.F.R. § 1208.13(a)). "[I]f the applicant is found not to be
entirely credible, corroborating evidence may be used to bolster an
applicant's credibility." Id. (internal citation and quotation
marks omitted).4
4
The REAL ID Act of 2005, Pub. L. 109-113, 119 Stat. 302, "alters,
among other things, the standards governing credibility
determinations and the need for corroboration of testimony in
asylum cases." Dhima, 416 F.3d at 95 n.3. Because these
provisions apply only to "applications for asylum, withholding or
other relief from removal made on or after [May 11, 2005]," REAL ID
-14-
B. Adverse Credibility Determination
The IJ determined that Hoxha was not credible based on
numerous inconsistencies between Hoxha's two declarations, and
between those declarations and Hoxha's testimony at the hearing.
Relying upon the BIA's three-prong test for evaluating credibility
set forth in In re A-S-, the IJ found (1) discrepancies and
inconsistencies in the record (2) which provided specific, cogent
reasons for an adverse credibility determination, and (3) which
were not adequately explained by Hoxha.
1. Discrepancies and Inconsistencies in Record
Hoxha does not take issue with the IJ’s findings
regarding the first prong of this test; he concedes that there are
inconsistencies between the June 2002 and July 2002 declarations,
and between those declarations and his testimony at the hearing
before the IJ.
2. Specific, Cogent Reasons
Hoxha argues that, for a variety of reasons, the
inconsistencies in this case do not provide cogent reasons for an
adverse credibility determination.
ACT § 101(h)(2), these provisions are not applicable to this case.
-15-
a. Heart of the Asylum Claim
Hoxha first argues that the inconsistencies cited by the
IJ do not undermine Hoxha's credibility because they are "minor"
and "do not go to the heart of the applicant's asylum claim." We
have stated that "an adverse credibility determination cannot rest
on trivia but must be based on discrepancies that involved the
heart of the asylum claim." Bojorques-Villanueva v. INS, 194 F.3d
14, 16 (1st Cir. 1999) (internal citation and quotation marks
omitted); see also Secaida-Rosales, 331 F.3d at 308 (stating that
"[i]nconsistencies of less than substantial importance for which a
plausible explanation is offered cannot form the sole basis for an
adverse credibility finding. . . . especially [] when the
inconsistencies do not concern the basis for the claim of asylum or
withholding, but rather matters collateral or ancillary to the
claim" (internal citations and quotation marks omitted)); Shah v.
INS, 220 F.3d 1062, 1068 (9th Cir. 2000) ("Minor inconsistencies in
the record such as discrepancies in dates which reveal nothing
about an asylum applicant's fear for his safety are not an adequate
basis for an adverse credibility finding." (internal quotation
marks and citation omitted)).
The heart of Hoxha's claim of asylum is that he and his
family were persecuted on account of his political activity with
the Democratic Party of Albania. The numerous inconsistencies
between Hoxha's two declarations, and between the declarations and
-16-
Hoxha's sworn testimony, closely relate to this alleged
persecution. These inconsistencies include: discrepancies
surrounding the date on which police set fire to Hoxha's home and
omissions concerning whether police admitted setting the fire;
discrepancies surrounding the year in which Hoxha was beaten
following his participation in the mayoral elections; omissions
concerning whether Hoxha and his wife were beaten and detained by
police in October 2000; discrepancies surrounding the year in which
Hoxha sold his business and his reasons for selling it;
discrepancies surrounding the date on which Hoxha's son returned
from the hospital after being injured by artillery fired at Hoxha's
home; and omissions concerning whether Hoxha was beaten by
civilians after briefly returning to Tirana in December 2001.
Far from trivial, the numerous inconsistencies cited by
the IJ involve the heart of Hoxha's asylum claim and thus support
the IJ's adverse credibility finding. Compare Bojorques-
Villanueva, 194 F.3d at 17 (holding that the BIA's adverse
credibility finding was supported by substantial evidence where
"the inconsistencies noted by the Board were more than several and
more than minor, such as an error in dates or typographical error"
and "the multiple inconsistencies went to the central facts," i.e.,
"the where, the who, the when and the what" of the triggering
event), and In re A-S-, 21 I & N Dec. at 1110 (holding that "the
omission of key events [] coupled with numerous [date]
-17-
inconsistencies," was a "specific and cogent reason supporting the
[IJ]'s adverse credibility finding"), with Vilorio-Lopez v. INS,
852 F.2d 1137, 1142 (9th Cir. 1988) ("Minor inconsistencies in the
record such as discrepancies in dates which reveal nothing about an
asylum applicant's fear for his safety are not an adequate basis
for an adverse credibility finding."), and Martinez-Sanchez v. INS,
794 F.2d 1396, 1400 (9th Cir. 1986) (holding that two "trivial
errors" in an otherwise consistent record "did not constitute a
valid ground upon which to base a finding that an asylum applicant
is not credible").
b. Legitimate Nexus
Hoxha further argues that "even assuming that some of the
discrepancies contained in the written statements involved matters
central to [his] asylum claim," these discrepancies bear no
"legitimate nexus" to the IJ's adverse credibility finding. "A
reasonable factfinder upon review of the entire record," Hoxha
contends, "would be compelled to conclude that the discrepancies in
the statements indicated not negative credibility, but sloppy and
irresponsible lawyering."
In support of this argument, Hoxha notes that both
declarations were "written in broken English replete with
grammatical and spelling errors, typos, and long passages of
boilerplate legal language unrelated to [his] specific asylum
claim." Many of the discrepancies in dates, Hoxha argues, "seem
-18-
indicative of typographical errors rather than lack of
credibility," such as where the June 2002 declaration erroneously
states that the fire at the home of Hoxha's father started on
"March 3, 1998" instead of on March 31, 1998. Hoxha also contends
that he was wholly unprepared for questioning regarding the
inconsistencies between his first and second declarations, and
between those declarations and his testimony, because his lawyer
did not review the declarations with him prior to the hearing
before the IJ. Hoxha supports this contention by noting that he
did not sign either declaration; both declarations are in English,
which he could not read; and neither he nor his attorney were aware
of the existence of a second declaration.
An IJ's reasons for rejecting an applicant's testimony on
credibility grounds must "bear a legitimate nexus" to the adverse
credibility finding. Secaida, 331 F.3d at 307. We find such a
nexus here. While the contents of Hoxha's declarations and his
preparedness for the hearing before the IJ leave much to be
desired, these deficiencies do not compel a finding that Hoxha was
poorly represented but credible. On the contrary, the record
supports the IJ's determination that the inconsistencies in this
case were so significant that the IJ was "without recourse [] but
to enter an adverse credibility finding."
Even if "sloppy drafting" were to blame for the
discrepancy in the date of the fire that injured his son, Hoxha
-19-
does not explain how poor drafting resulted in discrepancies in the
month and even the year of certain other events, and in the
omission of some events altogether. In addition, while the record
reflects that Hoxha had difficulty understanding English (he had an
interpreter at his hearing before the IJ, and he testified that an
interpreter filled out his application based on answers that he,
via his cousin, provided in Albanian); that he did not technically
sign either declaration (his name is typewritten at the end of both
declarations); and that his attorney was unaware of the existence
of one of the two declarations, Hoxha twice acknowledged explicitly
that he knew of the two declarations. He also answered in the
affirmative when asked by both the IJ and the government whether he
had reviewed his asylum application with his attorney. The record
thus supports the IJ's determination that the inconsistencies in
this case pointed not to poor representation, but rather to a lack
of credibility.
c. Other Measures of Credibility
Even if the inconsistencies in this case support an
adverse credibility determination, Hoxha argues that "consistency
between written and oral statements is [only] one measure of
credibility. A reasonable factfinder could have evaluated [him] on
the plausibility of his story, his level of detail, [and] his
demeanor when testifying." The IJ did consider other measures of
credibility before rendering the adverse credibility determination.
-20-
At the outset of his analysis, the IJ stated that he "had the
opportunity to observe the respondent's demeanor throughout his
testimony and to compare that testimony to the written application
and supporting documentation." The IJ also acknowledged "the
existence of documentation in the record that on its face seems to
verify much of what the respondent has claimed happened," but noted
that the documents were not authenticated and that "their mere
existence is insufficient to overcome the adverse credibility
finding." While Hoxha "could have attempted to rehabilitate his
credibility" by coming forward with other corroborating evidence,
the IJ noted, he did not do so. In addition, the IJ acknowledged
the plausibility of Hoxha's story, stating that "[i]f credible,
there is certainly nothing inherently implausible about the
respondent's claim, given the now evolving conditions in Albania."
Viewing the record as a whole, the IJ determined that the
existence of corroborating evidence, together with the plausibility
of Hoxha's claim, were insufficient to overcome the IJ's "serious
doubts" about Hoxha's credibility. Given the "significant"
discrepancies and omissions identified by the IJ in this case, the
IJ did not err in finding that the evidence supported an adverse
credibility determination.
This case is therefore different from Osorio v. INS, 99
F.3d 928 (9th Cir. 1996), cited by Hoxha, in which the Ninth
Circuit remanded the BIA's denial of asylum in a case involving
-21-
inconsistent declarations. In that case, neither the IJ, nor the
BIA, which adopted the IJ's reasoning, "identif[ied] the specific
inconsistencies on which they based their finding that [the
applicant] was not credible," nor did they give "any indication of
the nature or gravity of the inconsistencies that they purported to
rely upon." Id. at 931-32. Rather, the IJ merely stated that the
petitioner was "not credible" based on "inconsistencies" stemming
from a "garbled and difficult to understand" application, which,
the Osorio court noted, was "clear[ly]" not drafted by someone
fluent in English. Id. at 929, 931. There was no indication, the
court stated, that either the BIA or the IJ evaluated whether the
inconsistencies in the applicant's first application "may have been
simply the product of a language barrier or of a misreading of a
largely unintelligible document." Id. at 932.
In this case, by contrast, the IJ listed the numerous
"significant" and "troubling" inconsistencies upon which it relied
for its adverse credibility determination. Unlike Osorio, the IJ
also acknowledged that "there may be circumstances where an
individual's ability to recall dates and times would be in doubt,
but should not undermine the individual's credibility," such as
"when an individual is not represented by counsel, either in the
preparation of the application or in Court." Here, the IJ noted,
Hoxha was not only represented by counsel but also testified that
he had reviewed his asylum application with his attorney prior to
-22-
the hearing. Lastly, while the declarations in this case were
replete with various grammatical and spelling errors, they were by
no means unintelligible. Therefore, the inconsistencies relied
upon by the IJ, unlike those in Osorio, were not "illusory," i.e.,
they were not "simply the product of a language barrier or of a
misreading of a largely unintelligible document." 99 F.3d at 932.
3. Convincing Explanation of Discrepancies
or Omissions
Hoxha argues that he provided reasonable explanations for
the various inconsistencies at the hearing before the IJ, and,
therefore, the IJ's adverse credibility determination is not
supported by substantial evidence. Hoxha's argument is unavailing.
When asked by the IJ why his two declarations listed different
dates for the March 1998 fire at his father's home, Hoxha answered
that "[m]aybe it was a mistake." When asked by the government why
he did not mention the September 1999 admission by police to
burning his father's home, Hoxha offered no explanation at all. He
also failed to give an explanation for why the date that he
testified he sold his store differed from the date provided in his
declarations by almost a year. When the IJ asked Hoxha why he did
not amend or correct his asylum application to clarify the
inconsistencies between his application and his testimony regarding
the date on which his son returned from the hospital in Greece,
Hoxha stated only that he was telling the truth, and that his
testimony was correct. As the IJ states, not only did Hoxha not
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address these discrepancies, "but [he] seemed to not even know they
existed" – despite having reviewed his application with his
attorney. The record therefore supports the IJ's determination
that Hoxha did not convincingly explain the inconsistencies in his
case.
C. Summary Affirmance
Hoxha argues that in affirming the IJ's decision without
opinion, the BIA violated its summary affirmance procedure. Under
this procedure,
[t]he Board member to whom a case is assigned shall
affirm the decision of the Service or the immigration
judge, without opinion, if the Board member determines
that the result reached in the decision under review was
correct; that any errors in the decision under review
were harmless or nonmaterial; and that
(A) The issues on appeal are squarely controlled by
existing Board or federal court precedent and do not
involve the application of precedent to a novel factual
situation; or
(B) The factual and legal issues raised on appeal are not
so substantial that the case warrants the issuance of a
written opinion in the case.
8 C.F.R. § 1003.1(e)(4)(i).
Hoxha argues that the BIA erred because its decision "was
based upon an incorrect result reached by the IJ, and upon the IJ's
erroneous conclusions of law and fact that were neither harmless
nor nonmaterial."5 The government, on the other hand, argues that
5
Hoxha does not argue that the issues on appeal in this case are
not controlled by existing precedent or that they involve the
application of precedent to a novel fact situation, nor does he
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the BIA's decision to streamline a particular case is not subject
to judicial review because the streamlining procedure is an action
committed to the absolute discretion of the BIA.
We have previously acknowledged that we have jurisdiction
to review the BIA's decision to streamline, at least in those cases
involving both a reviewable and non-reviewable basis for the IJ's
decision, where it is unclear on what basis the BIA summarily
affirmed the decision. See Haoud v. Ashcroft, 350 F.3d 201, 206
(1st Cir. 2003) ("Especially when the Board's review of an IJ's
decision often hinges on Circuit court precedent, we are
well-equipped, both statutorily and practically, to review a
decision to streamline."). Here, however, "it makes no practical
difference whether the BIA properly or improperly streamlined
review" since "we can review directly the decision of the IJ."
Olowo v. Ashcroft, 368 F.3d 692, 698 (7th Cir. 2004) (internal
quotation marks and citation omitted); see also Falcon Carriche v.
Ashcroft, 350 F.3d 845, 854 n.7 (9th Cir. 2003) (stating that in
most cases, "streamlining and the merits issues collapse into one
analysis and thus the issues surrounding jurisdiction over
streamlining, however decided, [do] not prevent review on the
merits"). Because we find the IJ's adverse credibility
determination clearly supported by substantial evidence in the
record, we dispose of Hoxha's argument without reaching whether the
argue that the factual and legal questions raised in his case are
so substantial as to warrant issuance of a written opinion.
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BIA's affirmance of the IJ's adverse credibility determination
under the summary affirmance procedure was error.
IV.
The BIA's order is affirmed; the petition for review is
denied.
So ordered.
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