United States Court of Appeals
For the First Circuit
No. 07-2780
DRINI BEBRI,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Howard, Baldock,* and Selya,
Circuit Judges.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Gregory G. Katsas, Acting Assistant Attorney General, Anthony
W. Norwood, Senior Litigation Counsel, and Shahrzad Baghai, Trial
Attorney, on brief for respondent.
October 17, 2008
*
Of the Tenth Circuit, sitting by designation.
SELYA, Circuit Judge. The petitioner, Drini Bebri, is an
Albanian national. He seeks judicial review of a final order of
the Board of Immigration Appeals (BIA) that affirmed a decision of
an immigration judge (IJ) denying his applications for asylum,
withholding of removal, and relief under the Convention Against
Torture (CAT). Because the petitioner failed to renew the
withholding of removal and CAT claims before the BIA, we treat
those claims as abandoned. See Makhoul v. Ashcroft, 387 F.3d 75,
80 (1st Cir. 2004). Consequently, our sole focus is the asylum
claim. After careful consideration of that claim, we deny the
petition.
The petitioner entered the United States illegally on
February 4, 2001. He immediately applied for asylum. An asylum
officer interviewed him and referred his case to the immigration
court.
After the petitioner amended his asylum application on
May 16, 2002, the IJ convened an evidentiary hearing. Following
that hearing, the IJ concluded that the petitioner's testimony was
not credible and refused to grant asylum. The IJ premised her
adverse credibility determination (and, hence, the denial of
asylum) on perceived inconsistencies in the petitioner's
presentation. We turn, then, to the petitioner's testimony.
The petitioner testified that, in 1999, he was an officer
of the Democratic Party of Albania (PD). He started to receive
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unsigned letters threatening to kill him if he did not leave the
party. He remained steadfast.
The linchpin of his account was an incident that he said
occurred in October of 2000. As he described it, he was savagely
beaten by a group of masked men after working in a parliamentary
election. His assailants threatened further violence if he did not
stop toiling for the PD. The petitioner finally escaped from his
tormentors and, shortly thereafter, traveled to the Albanian
capital (Tirana). He obtained a counterfeit Italian passport
there. Using this bogus credential, he embarked on a lengthy
peregrination through Italy, Belgium, France, Spain, Venezuela, and
Colombia before flying into Miami.
The IJ discerned serious discrepancies in this account.
The most glaring contradictions involved the linchpin event: the
circumstances of the supposed beating. In his initial asylum
application, the petitioner had described two incidents, not one.
He said that "approximately two-three days" after the election, he
was attacked by two men; that he was beaten so severely that he
needed to be hospitalized; and that, seven days later, he was again
confronted by the same men. In his amended asylum application,
however, he stated that he had experienced only one encounter — he
was beaten and threatened "at a rally." When testifying before the
IJ, the petitioner admitted that this was a lie; instead, he
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vouchsafed that the beating occurred while he was walking home from
the parliamentary election after the votes had been counted.
This version itself cast further doubt on his veracity.
The petitioner testified that the beating lasted about twenty
minutes and did not require hospitalization. Later in the hearing,
however, he testified to leaving the polls before the votes were
counted and being beaten for "about three hours."
The petitioner had no plausible explanation for any of
these inconsistencies, and the IJ thought that they were telling.
She also questioned the depth of the petitioner's commitment (if
any) to the PD. And, finally, she observed that other parts of the
petitioner's story, though consistent, seemed far-fetched. In this
regard, she pointed to the petitioner's assertions that he had
walked for four to five hours after absorbing a three-hour beating;
that he had developed, virtually instantaneously and without
assistance, an effective escape route that allowed an alien with no
legitimate passport to enter the United States; and that he had
financed his entire sojourn, flying on commercial aircraft, for
under $3,500.
Based on these and similar findings, the IJ denied the
petitioner's application for asylum and ordered his removal. On
November 7, 2007, the BIA affirmed. This timely petition for
judicial review followed.
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Following a final order of removal, this court ordinarily
reviews the decision of the BIA. But where, as here, the BIA
adopts portions of the IJ's opinion, we review those portions of
the IJ's opinion as well. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st
Cir. 2004). Factual findings, including credibility
determinations, are reviewed under the substantial evidence
standard. Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007). Under
this deferential standard, contested findings will stand as long as
they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Id. (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). Unless the evidence
"compels a contrary conclusion, the findings must be upheld." Id.
Asylum is available only to a refugee. A refugee is a
person who is unable or unwilling to return to his or her homeland
"because of persecution or 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).
It is an asylum-seeker's burden to prove that he or she is a
refugee within the statutory definition. See Jiang v. Gonzales,
474 F.3d 25, 30 (1st Cir. 2007).
To carry this burden, an alien's own testimony may
suffice. See Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.
2004). But an alien's testimony need not be taken at face value;
if the trier deems that testimony speculative or unworthy of
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credence, "it may be either disregarded or sharply discounted."
Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir. 2005). In that
way, "an adverse credibility determination can prove fatal" to an
asylum claim. Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007).
Either past persecution or a well-founded fear of future
persecution on account of a protected ground is a sine qua non for
asylum. 8 U.S.C. § 1101(a)(42)(A). In the case at hand, the
petitioner relies on a claim of past persecution to give rise to
a reasonable possibility that such persecution will recur if he is
repatriated. See Makhoul, 387 F.3d at 81. His showing of past
persecution hinges on the linchpin incident: the savage beating
that he claims was administered to punish him for his political
beliefs. Apart from the petitioner's unsupported allegations of
anonymous threats, that is the only tangible evidence of any past
persecution specific to him.
The IJ concluded that both the beating and the
petitioner's professed degree of political participation were
apocryphal. Accordingly, she denied his asylum application. The
petitioner assigns error in two respects. First, he asserts that
the IJ based her adverse credibility determination on matters that
were not central to the merits of the asylum claim. Second, he
argues that the IJ's adverse credibility determination is not
supported by the record as a whole. We address those plaints
sequentially.
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The premise on which the first claim of error rests — the
so-called "heart of the matter" rule — is theoretically sound.1
Under the heart of the matter rule, discrepancies relied upon by
the trier in making adverse credibility determinations must
"pertain to facts central to the merits of the alien's claims, not
merely to peripheral or trivial matters." Zheng v. Gonzales, 464
F.3d 60, 63 (1st Cir. 2006). Put another way, 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)
(citation and internal quotation marks omitted).
The conclusion that the petitioner seeks to have us draw
from this premise, however, is not sound. He attempts to depict
the inconsistencies that permeated his shifting statements as minor
differences of time and place. But every case is different; and
here, that characterization is misleading. Although most of the
discrepancies concern the time, place, or manner of various details
incident to the alleged beating, they go to the heart of the
matter. We explain briefly.
1
That is true here, but it may not be true in future cases.
The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 302, abolishes
the heart of the matter rule. See id. § 101; see also Cuko v.
Mukasey, 522 F.3d 32, 38 n.2 (1st Cir. 2008). Nevertheless, the
Act only applies to claims for asylum filed after May 11, 2005.
See REAL ID Act of 2005 § 101(h)(2). Because the petitioner filed
for asylum several years earlier, his case remains subject to the
rule.
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The petitioner variously described the beating as having
taken place at a rally or during a stroll home from the polls. He
said, at different times, that it occurred both before and after
the votes were tallied. He estimated its duration on one occasion
as twenty minutes and on another as three hours. He vacillated as
to whether or not his injuries required hospitalization. And he
first described a pair of incidents, and then retracted to a single
incident.
Viewed collectively and in context,2 the petitioner's
wildly inconsistent statements about the timing, location,
duration, and intensity of the alleged beating would raise a
serious question in the mind of even the most sanguine listener as
to whether the petitioner was beaten at all. Such inconsistencies
surely can ground a finding that an alien's testimony is lacking in
veracity. See, e.g., Pan, 489 F.3d at 86. What we wrote in Pan is
equally apposite here: "Some of these inconsistencies, in
isolation, may seem like small potatoes. What counts, however, is
that their cumulative effect is great." Id.
The petitioner's fallback position is that the IJ's
adverse credibility determination (and, thus, the denial of asylum)
was not rooted in the record as a whole. This argument is fueled
by the petitioner's assertion that the IJ had an insufficient basis
2
The context here includes the utter lack of any
corroboration (documentary or anecdotal) and the petitioner's
admission that he lied initially.
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for concluding (i) that the petitioner was not as active in the PD
as he professed to be and (ii) that the petitioner's circuitous
route from Albania to the United States was pre-planned.
We set the stage. During the hearing, the petitioner,
who claimed to be an officer of the PD and active in its affairs,
was questioned about the political climate in Albania at the time
he was living there. He gave stumbling and inaccurate responses to
rudimentary questions,3 which led the IJ to conclude that he may
well have been prevaricating about his status as a political
activist. The petitioner points out that in order to have reached
this conclusion, the IJ had to assume that someone who was active
in politics at a given time would know more than the petitioner
did. The petitioner styles that assumption as representing nothing
more than the IJ's personal view and, therefore, as not entitled to
deference. See Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir.
1994) ("[D]eference is not due where findings and conclusions are
based on inferences or presumptions that . . . are merely personal
views of the immigration judge."). This argument lacks force.
We can find no fault with the IJ's assumption that, in
the normal course of events, someone who has worked for a number of
3
To cite one illustration, when asked whether he ever had
heard of the political party known as the "PDSH," the petitioner
responded in the negative. But the record contains a report of an
international organization verifying that the PDSH had won over a
third of all Albanian parliamentary seats in 1997 and again in
2001.
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years in a field will know and recall elementary facts about that
field. Unlike the premise used by the IJ in Cordero-Trejo, the
premise employed by the IJ in this case is grounded in common
sense, not in the IJ's esoteric knowledge or personal experience.
A trial judge has a right — indeed, a duty — to make common-sense
judgments. That duty is implicit in our system of justice. See
Griffin v. Burns, 570 F.2d 1065, 1078 (1st Cir. 1978) (stating that
"a federal judge . . . may and should do what common sense and
justice require"). It is equally implicit in an IJ's statutory
mandate to "decide whether an alien is removable from the United
States." 8 U.S.C. § 1229a(c)(1)(A). Given that the petitioner has
furnished no coherent reason as to why an officer of the PD would
have been so uninformed, the IJ's conclusion passes muster under
the substantial evidence standard.
This brings us to the matter of the itinerary. Referring
to the petitioner's hegira, the IJ observed:
The Court has seen many, many of these . . . I
find it simply incredulous [sic] that the
[petitioner] would simply come up with this
itinerary on his own. It is certainly well-
known that there is a great deal of human
trafficking from Albania and this certainly
fits the pattern.
The perceived similarity of the petitioner's route to that
conventionally used by human-smuggling operations prompted the IJ
to conclude that the petitioner had in all likelihood contracted
with a smuggler to effect his entry into the United States.
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The petitioner contends that the IJ improperly relied
upon her personal knowledge of frequently used human-trafficking
routes to conclude that the petitioner had been less than candid
about the spontaneity of his travels. There may be some merit to
this contention; the IJ needed more than unvarnished common sense
to reach this conclusion, and the record is barren of any pertinent
evidence of human-trafficking routes.
In the last analysis, we need not decide this point.
Even assuming, for argument's sake, that the IJ's views about the
origin of the petitioner's itinerary were misplaced, that subject
was peripheral to the merits of his asylum claim. Moreover, in the
overall scheme of things, it was only marginally relevant to his
credibility. The record reveals a plethora of other facts that
strongly support the IJ's adverse credibility determination.
Because that determination rested on substantial evidence in the
record as a whole (not including the origin of the petitioner's
itinerary), any error in this regard was harmless. See Harutyunyan
v. Gonzales, 421 F.3d 64, 70 (1st Cir. 2005) (explaining that, in
an immigration case, a harmless error is one "that would [not] have
made a dispositive difference in the outcome of the proceeding").
We need go no further. For the reasons elucidated above,
we conclude that the denial of asylum is supported by substantial
evidence in the record. Consequently, the order of removal must be
upheld.
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The petition for judicial review is denied.
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