Rizk v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE GERGES RIZK; NADIA  No. 06-74213

YOUSSEF ATTIA; JOSEPH GEORGE

GERGES; JOHN GEORGE GERGES, Agency Nos.

Petitioners, A075-676-966

v.  A075-674-142

A078-111-798

ERIC H. HOLDER JR., Attorney A078-111-799

General,

OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

September 2, 2010—Pasadena, California

Filed January 3, 2011

Before: Diarmuid F. O’Scannlain, Ronald M. Gould and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

75

78 RIZK v. HOLDER

COUNSEL

Rasmin Sheeno, Mansouri and Sheeno, Sherman Oaks, Cali-

fornia, attorney for the petitioners.

Daniel Glenn Lonergan, Office of Immigration Litigation,

United States Department of Justice, Washington, DC, attor-

ney for the respondent.

RIZK v. HOLDER 79

OPINION

IKUTA, Circuit Judge:

George Gerges Rizk, the principal petitioner in this case,

claims that the immigration judge (IJ) and Board of Immigra-

tion Appeals (BIA) erred in rejecting his asylum claim on the

basis of an adverse credibility determination. Specifically,

Rizk argues that he was not given a chance to explain the

inconsistencies on which the IJ relied in finding him not cred-

ible. Because the record shows that Rizk did have ample

opportunities to reconcile the numerous contradictions in his

testimony, but failed to offer a reasonable and plausible expla-

nation for them, the IJ’s adverse credibility determination was

supported by substantial evidence. We therefore deny his peti-

tion for review.

I

Rizk, a citizen of Egypt, entered the United States on

December 6, 1998, as a nonimmigrant visitor for pleasure,

with authority to remain in the United States until June 5,

1999. His wife, Nadia Youssef Attia (Attia), and two children,

Joseph George Gerges (Joseph) and John George Gerges

(John), entered the United States as nonimmigrant visitors on

March 5, 1999, and were authorized to remain until Septem-

ber 4, 1999. In early 2000, all were issued Notices to Appear,

charging them with being subject to removal under 8 U.S.C.

§ 1227(a)(1)(B) for having remained in the United States

beyond the dates permitted by their visas. Rizk and his family

conceded removability but sought relief in the form of asy-

lum, withholding of removal, and relief under the Convention

Against Torture (CAT). Rizk and his wife filed separate peti-

tions for relief, and the children claimed derivative relief

through each parent. See 8 C.F.R. § 207.7(a) (2010) (stating

that a child accompanying an asylum applicant may share in

the applicant’s asylum status).

80 RIZK v. HOLDER

The IJ conducted an in-depth hearing over the course of

three days. Rizk and Attia were the only witnesses, and each

testified out of the hearing of the other. Their testimony

focused on three separate incidents: the harassment and beat-

ing of their son Joseph for refusing to join in Islamic prayers,

the break-in at the family’s apartment, which led to Rizk’s

persecution by the police and prosecution for inciting sectar-

ian chaos, and Attia’s harassment by a Muslim, Mohammed

Abdul Latif, culminating in her abduction and rape. For the

reasons explained below, we focus mainly on the break-in

incident.

The break-in and its aftermath are central to Rizk’s claim

of persecution. According to Rizk, on January 24, 1998,

unknown perpetrators broke into the family’s apartment, stole

money and jewelry, and scrawled pro-Islamic slogans on the

walls. After the police arrived to investigate, Attia accused

Latif of committing the crime. The police took Rizk and Attia

to the police station and interviewed them along with Latif.

After preparing a report, the police detained Rizk overnight

on the charge of “inciting sectarian chaos,” allegedly because

he accused a Muslim of breaking into and stealing from his

apartment. The next day, the police transferred Rizk to State

Security, where, Rizk asserted, he was interrogated, occasion-

ally struck by officers, and given five minutes of electric

shocks through his index fingers. He thereafter received let-

ters requiring him to appear in court in connection with his

prosecution on the incitement charge.

In a detailed, 37-page opinion, the IJ reviewed Rizk and

Attia’s testimony and detailed dozens of inconsistencies,

including discrepancies as to times, dates, the sequence of

events, and the identity of the individuals who participated in

those events. The IJ pointed out internal inconsistencies, as

well as inconsistencies between the stories offered by Rizk

and Attia.1 Most significantly, the petitioners’ testimony con-

1

It is difficult to convey the full extent of the inconsistencies that per-

vade the petitioners’ testimony. For present purposes, we can provide only

RIZK v. HOLDER 81

tradicted the key piece of documentary evidence they had

submitted: the police report on the break-in of their apartment.

The IJ stated that “the unusual number of factual discrepan-

cies present in the respondents’ accounts, combined with the

blatantly contradictory nature of those discrepancies, has left

the respondents’ representations dubious.” In light of these

numerous conflicts, the IJ determined that the petitioners were

not credible, and indeed that their “testimony has left the

Court in such disarray that it could not begin to discern the

truth, if any, from the vast fallacies.” Consequently, the IJ

denied all of the petitioners’ requested relief.

Following the IJ’s rejection of their claims, petitioners

appealed to the BIA. On December 29, 2003, the BIA “adop-

a small sample of the many discrepancies apparent in the record. For

example, Rizk reported that Attia called him immediately upon discover-

ing the break-in, around 2:00 or 2:30 p.m. and that he went home directly

and called the police. But the IJ noted that Rizk first stated he called the

police at 2:30 p.m., and then stated he called the police at 4:00 p.m., while

Attia stated that Rizk called the police at 2:00 p.m. Rizk subsequently

stated that the police arrived between 4:00 and 4:30 in the afternoon, while

Attia testified that they came around 2:10 p.m. At another juncture, Rizk

stated that Attia obtained the police report submitted in the immigration

proceedings with the help of individuals “inside” the police department,

while Attia said that one of Rizk’s brothers, Magdi, procured the report.

On the subject of the letters sent by the court to Rizk in connection with

prosecution for incitement of sectarian chaos, Rizk first claimed he

received no letters while in Egypt, but then said he received three letters

in November 1998 (before leaving for the United States). Attia, however,

said that he received four letters: three in July 1998 and one in September

1998.

Attia’s and Rizk’s accounts also disagreed on the chronology of Latif’s

alleged harassment of Attia. According to Rizk, Latif began accosting

Attia in summer 1997, and his last attempt to convince her to convert to

Islam was sometime between August 1997 and December 1997. Specifi-

cally, Rizk testified as follows about the last date of Latif’s harassment:

“Maybe it was October, end of November or beginning of December.

Beginning of November or end of November, end of October, beginning

of November.” Attia stated that she did not meet Latif until January 2,

1998, however, which was after the last date indicated in Rizk’s account.

82 RIZK v. HOLDER

t[ed] and affirm[ed]” the IJ’s opinion solely as to “the lead

male respondent,” i.e., Rizk. The BIA’s opinion expressly did

not address the appeals of Attia or the couple’s children. Peti-

tioners filed a timely petition for review of the BIA’s deci-

sion.

II

On appeal, Attia argues that the BIA failed to address her

challenge to the IJ’s adverse credibility determination regard-

ing her testimony. We agree. The BIA’s opinion states: “The

respondents consist of a married couple and their two chil-

dren. For purposes of this order, reference to ‘the respondent’

will refer to the lead male respondent.” The opinion then

upheld the IJ’s adverse credibility as to the “respondent,” and

concluded that “the respondent’s appeal is dismissed.” In

short, the BIA affirmed in full the IJ’s decision as to Rizk, but

did not mention Attia, John, or Joseph other than to include

them in the definition of “respondents” (a term never again

used in the opinion) and exclude them from the definition of

“respondent.”

At oral argument, the government asserted for the first time

that the BIA did not address Attia’s claims because they were

not properly before it. According to the government, the peti-

tioners’ notice of appeal to the BIA addressed only Rizk’s

claims. Because Attia’s claims were not exhausted, the gov-

ernment argues, we should dismiss her appeal for lack of

jurisdiction. The record does not support this assertion. The

petitioners’ notice of appeal and supporting brief to the BIA

lists the Alien Identification Number for each of the family

members, repeatedly refers to the family collectively as “re-

spondents” or “appellants,” and refers specifically to the “fe-

male” appellant or respondent where appropriate.

Accordingly, we conclude that Attia adequately appealed the

IJ’s decision and that we have jurisdiction over her petition.

[1] Because the BIA’s decision did not resolve Attia’s

appeal (and, consequently, did not resolve the cases of Joseph

RIZK v. HOLDER 83

and John, who are eligible for derivative relief through Attia),

we must grant her petition and remand her case (along with

her children’s) to the BIA for decision. “[W]here the BIA has

not made a finding on an essential asylum issue, the proper

course of action for a court of appeals is to remand the issue

to the BIA for decision.” Chen v. Ashcroft, 362 F.3d 611, 621

(9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12, 17

(2002)). We therefore do not address Attia’s additional chal-

lenges to the IJ’s decision.

III

Rizk claims that the IJ’s adverse credibility determination

was not supported by substantial evidence. Where, as here,

the BIA expressly adopts the IJ’s decision, we review the IJ’s

findings as if they were the BIA’s. Aguilar-Ramos v. Holder,

594 F.3d 701, 704 (9th Cir. 2010). Because credibility deter-

minations are findings of fact by the IJ, they “are conclusive

unless any reasonable adjudicator would be compelled to con-

clude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). “To

reverse [such a] finding we must find that the evidence not

only supports [a contrary] conclusion, but compels it.” INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

[2] We must uphold the IJ’s adverse credibility determina-

tion “[s]o long as one of the identified grounds is supported

by substantial evidence and goes to the heart of [the alien’s]

claim of persecution.” Wang v. INS, 352 F.3d 1250, 1259 (9th

Cir. 2003).2 The IJ “must have a legitimate articulable basis

to question the petitioner’s credibility, and must offer a spe-

cific, cogent reason for any stated disbelief.” Hartooni v. INS,

21 F.3d 336, 342 (9th Cir. 1994); accord Singh v. Gonzales,

2

Although the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title

I, § 101(h)(2), 119 Stat. 231, has modified the scope of our review of an

IJ’s adverse credibility finding for asylum applications filed after May 11,

2005, these modifications are not applicable here because Rizk filed his

application before the REAL ID Act’s effective date.

84 RIZK v. HOLDER

439 F.3d 1100, 1105 (9th Cir. 2006). Major inconsistencies

on issues material to the alien’s claim of persecution consti-

tute substantial evidence supporting an adverse credibility

determination. See Kaur v. Gonzales, 418 F.3d 1061, 1064

(9th Cir. 2005). This general rule has two qualifications, how-

ever. First, minor inconsistencies regarding non-material and

trivial details, such as typographical errors or inconsistencies

in specific dates and times that lack a close nexus to the peti-

tioner’s asserted grounds of persecution, cannot form the

exclusive basis for an adverse credibility determination. Id. at

1064. Of course, even minor inconsistencies going to the

heart of a petitioner’s claim may, when considered collec-

tively, “deprive [the] claim of the requisite ‘ring of truth,’ ”

thereby supplying substantial evidence that will sustain the

IJ’s adverse credibility determination. Rivera v. Mukasey, 508

F.3d 1271, 1275 (9th Cir. 2007) (quoting Kaur, 418 F.3d at

1067). Moreover, just as “repeated and significant inconsis-

tencies” can deprive an alien’s claim “of the requisite ‘ring of

truth,’ ” so too can an inconsistency accompanied by “other

indications of dishonesty—such as a pattern of clear and per-

vasive inconsistency or contradiction.” Kaur, 418 F.3d at

1067.

[3] Second, an IJ cannot base an adverse credibility deter-

mination on a contradiction that the alien could reconcile if

given a chance to do so. Accordingly, the IJ must give the

petitioner the opportunity to provide an explanation of an

apparent inconsistency. Guo v. Ashcroft, 361 F.3d 1194, 1200

(9th Cir. 2004). If the alien offers a “reasonable and plausible

explanation” for the apparent discrepancy, the IJ must provide

a specific and cogent reason for rejecting it. Soto-Olarte v.

Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009) (quoting

Guo, 361 F.3d at 1201) (internal quotation marks omitted). If

the IJ reasonably rejects the alien’s explanation, see Osorio v.

INS, 99 F.3d 928, 931 (9th Cir. 1996), or if the alien fails to

provide a plausible explanation, the IJ may properly rely on

the inconsistency as support for an adverse credibility deter-

mination. Kaur, 418 F.3d at 1065-67; see Guo, 361 F.3d at

RIZK v. HOLDER 85

1201. An IJ is not obliged to provide a protracted written or

oral analysis of the alien’s proffered explanation. Cf. Rita v.

United States, 551 U.S. 338, 356-59 (holding that the require-

ment of a reasoned decision in federal sentencing cases

depends on the context of each individual case and that “[t]he

appropriateness of brevity or length, conciseness or detail,

when to write, what to say, depends on the circumstances”).

Nor does the IJ have to engage in multiple iterations of the

opportunity to explain. Once the IJ has provided a specific,

cogent reason for disbelieving the alien’s rationalization, the

IJ need not offer the alien another opportunity to address the

IJ’s concerns, which the IJ would then need to address again.

Moreover, the opportunity to explain may be provided

through cross-examination by the government, see He v. Ash-

croft, 328 F.3d 593, 602 (9th Cir. 2003), or even direct exami-

nation by the alien’s own attorney, see Rivera, 508 F.3d at

1275, not just through a colloquy between the alien and the

IJ.

IV

Applying these principles, we begin by considering

whether the factual discrepancies in Rizk’s testimony consti-

tute substantial evidence supporting the IJ’s adverse credibil-

ity determination. Because we must uphold the IJ’s adverse

credibility determination so long as even one basis is sup-

ported by substantial evidence, Wang, 352 F.3d at 1259, we

focus on one of the key contradictions the IJ identified:

namely, the inconsistencies between the police report regard-

ing the break-in and Rizk’s testimony regarding the same

incident.

[4] Rizk originally introduced the police report as evidence

of the break-in, and stated that “this report is [a] true and cor-

rect report.” During the course of the hearing, however, ques-

tioning by the government and the IJ led to testimony that was

directly inconsistent with the report on a range of key issues.

86 RIZK v. HOLDER

[5] One discrepancy identified by the IJ related to a simple

yet fundamental fact: the number of the apartment where Rizk

lived and the break-in took place. In his testimony, Rizk

stated his family’s apartment number was 14. However, the

police report stated that the break-in was in apartment 8. The

government asked the following:

Q. Does this police report relate to the robbery or the

breaking in of your apartment?

A. Yes.

Q. The police report says that the apartment that was

broken into was apartment number eight. Is that the

wrong apartment?

A. The building — each floor consists of, the build-

ing is seven story building and each story has two

apartments, 14 by eight.

The IJ then added a question:

Q. So, the apartment that you and your wife lived in

with your family was apartment 14.

A. Yes. Maybe there is a mistake in the translation.

I don’t know.

[6] A second discrepancy involved the identity of the per-

son who first discovered the break-in. Rizk claimed that Attia

discovered the break-in while Joseph was still in school, and

that Rizk ran back to the apartment and called the police. The

government asked Rizk to explain why the police report

stated that Joseph discovered the break-in.

Q. Did your son Joseph come into the apartment

while the police were there investigating the break

in?

RIZK v. HOLDER 87

A. No, he was not back.

Q. According to the police report, it says that you

were not there when the police arrived but that the

son of the owner, Joseph George Rizk, 15 years old,

had come in. Is this inaccurate?

A. I don’t recall.

Q. Well, was Joseph at the apartment when you got

home?

A. I don’t recall if, I don’t recall if he was there

because when I arrived, I ran to check the apartment.

I don’t recall whether he was there or not.

[7] Further, the police report said that Mr. Mohamed Said

Abraham first reported the robbery of Rizk’s apartment to the

police. On questioning, Rizk denied that this was correct.

Q. Is Mohamed Said Abraham (phonetic sp.) a

neighbor?

A. No, we don’t know this person. We just found his

name in the report.

Q. You testified you yourself called the police. Is

that correct?

...

A. Yes, and I don’t know why they write it like this.

I was the one who called the police.

[8] A third discrepancy involved whether Rizk and Attia

had told the police that Latif was the perpetrator of the break-

in. This accusation of Latif was central to Rizk’s claim of per-

secution, because it allegedly triggered the subsequent police

88 RIZK v. HOLDER

harassment and prosecution for inciting sectarian chaos. The

police report stated that the couple had not made any accusa-

tion against Latif, or indeed any accusation at all. In light of

this crucial inconsistency, the government made the following

inquiry:

Q. According to the police report, you were asked

whether you accused of anyone and you replied no.

Was this incorrect?

A. This is a fake report. How would they give me a

report saying that I accused a Muslim person?

Q. Well, sir, if this is a fake report, why are you

offering it to this Court?

A. This is the report that they gave me but they

haven’t told the truth in the report. Of course, they’re

not going to write in that report that a Muslim person

broke into an apartment and wrote on the walls there

is no God but one God. They won’t do that.

Q. Sir, you testified that you fear going back to

Egypt because of a case where you accused a Mus-

lim person of breaking into your apartment. Yet, the

document you brought to us makes no reference to

any Muslim person or anyone for that matter break-

ing into your apartment.

A. As I told you before, they’re not going to mention

that in the report. How would they mention that a

Muslim person had broken into the apartment[?]

Q. So, where is this record that you accused a Mus-

lim person?

A. The report is with them and they’re not going to

give it to me. These are all fabricated.

RIZK v. HOLDER 89

The IJ similarly asked:

Q. That report goes on to state that there was abso-

lutely, there was no allegation against anyone from

plaintiff. Our investigation did not lead us to any

suspect. This is the report from the police depart-

ment. This is a document that you submitted. Why

do you think that this document would explicitly

state that you did not bring any allegations against

anyone and that there was no suspect?

A. Things like this, they don’t mention it in the

reports. They’re not going to mention it in the

reports. He was supposed to say that the apartment

was vandalized and the pictures were thrown on the

floor. Why didn’t he mention that?

[9] In light of these and other passages in the record, it is

clear that Rizk had ample opportunity to explain the reasons

for inconsistencies in the record, but failed to offer plausible

explanations. Instead, Rizk attempted to evade questions by

claiming a failure of memory, or by speculating that the

police intentionally falsified the report and that there were

mistakes in the translation. These excuses themselves contra-

dict Rizk’s earlier testimony that the police report is a “true

and correct report.” Rizk’s claim that the police intentionally

omitted his accusation against Latif is particularly implausi-

ble, given Rizk’s further claim that the police harassed him

and the government prosecuted him for making this very

accusation. The IJ pointed out and discussed these inconsis-

tencies at length. Regarding the break-in, the IJ stated:

[T]he crux of the respondents’ account lies in the cir-

cumstances of the alleged January 24, 1998 break-in

at their apartment. This was a particularly violent

event in which their home was allegedly vandalized,

their belongings were broken, their valuables stolen,

and it precipitated the four day incarceration and

90 RIZK v. HOLDER

alleged torture of the male respondent. However,

despite the significance of this day and all of the

events which came to pass during it, the respondents

could not describe it clearly or consistently.

Regarding the police report, she said: “[V]arious aspects of

the [petitioners’] account are entirely implausible. Despite the

fact that corroboration is generally not required, the respon-

dents elected to submit the police report detailing their break-

in . . . into the record.” The IJ then recited the discrepancies

described above, and concluded: “When afforded abundant

opportunities to explain their misstatements during their many

hours of testimony, the [petitioners] typically elected to

dredge themselves deeper into this murky mess from which

they cannot recover, . . . undermining any shred of credibility

at all then remaining.” In light of these inconsistencies and the

implausibility of the petitioners’ accounts, the IJ found the

petitioners not credible, declaring that she “[wa]s not in a

position to believe any of the information provided by the

respondents regarding their alleged past persecution in

Egypt.”

[10] Because Rizk did not offer a reasonable and plausible

explanation for the discrepancies, which went to the heart of

his claim, either individually or in the aggregate, even though

he had ample opportunity to do so, the contradictions on

which the IJ relied remain substantial evidence supporting the

IJ’s adverse credibility determination. No express, point-by-

point rejection of Rizk’s explanations was necessary. See

Rivera, 508 F.3d at 1275; Kaur, 418 F.3d at 1065-67; see

Soto-Olarte, 555 F.3d at 1091, 1094-95.

[11] Because we cannot say that “any reasonable adjudica-

tor would be compelled to conclude” that Rizk is credible, 8

U.S.C. § 1252(b)(4)(B) (2000); accord Elias-Zacarias, 502

U.S. at 481 n.1, we uphold the IJ’s adverse credibility deter-

mination. In the absence of his discredited testimony, Rizk

cannot meet his burden of establishing past persecution or a

RIZK v. HOLDER 91

well-founded fear of future persecution on a protected ground,

and we therefore also uphold the IJ’s determination that Rizk

is not eligible for asylum.3

V

[12] For the foregoing reasons, we DENY the petition for

review as to Rizk. As to Attia, John, and Joseph, we GRANT

the petition and REMAND to the BIA so that it may address

their appeal from the IJ’s September 26, 2001 order denying

relief from removal.4

DENIED IN PART; GRANTED AND REMANDED IN

PART.

3

Rizk also argued that his rights to due process and equal protection

were violated because the BIA relied on the IJ’s flawed decision. Because

we determine that the IJ’s adverse credibility determination was supported

by substantial evidence, we reject this argument. Moreover, because Rizk

did not raise his withholding-of-removal and CAT claim in his opening

brief, we deem those issues waived. Martinez-Serrano v. INS, 94 F.3d

1256, 1259 (9th Cir. 1996); see Fed. R. App. P. 28(a)(9)(A).

4

Each party shall bear its own costs.