2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no v a . e du/thir dc ir c uit_2004/10651 NOT PRECED ENTIAL UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT
No. 03-1734
EVELEAN SO BHI MALA CK NASSRAL AH, Petitioner

v. JOHN ASH CROFT, ATTORNEY GE NERAL OF THE UNITED STATES OF AMERI CA, Respondent
Petition for Review of an Order of the Bo ard of Immigration A ppeals

(A74 808 862) Submitted Under Third Circuit LAR 34.1(a)

January 15, 2004 Before: Sloviter , Rendell and Aldisert , Circuit Judges
.

(FiledJanuary

28, 2004)
OPINION OF THE COURT
ALDISE RT, Circuit

Judge
. Evelean Sobhi

Malack Na ssral ah filed t his petition for review challenging the2

February 21, 2003 Board of Im

migra tion Appeal s (“Boar

d”) affir mance of the deci sion of the Im migra tion Judge ( “IJ”) denying Nassr alah’sapplica

tion for as yl

um and withholding of de

portati on. In thispetiti on for review, we mus t decide whether t

he Board’s deter mination that Nassralah failed to establish asylum eligibility by credible tes tim ony is s upport

ed by subst anti al e viden ce. We wi ll deny the pe tit ion for revi ew. Nassra lah is a twenty -five y

ear old wom

an, nati ve and cit

izen of Egy

pt, who entered the U nited States as a visito r in 1996 . She was permitted to remain here until Decem ber 3, 1996, but

rema ined bey ond that per

iod and was pl aced in de

portati on proceedings. She applied for as yl um and wit

hholding of deport

ation, a nd in the alternative, volu ntary departure. In the hea ring before

the IJ, Nassra

lah adm itted t he alle gations of fa

ct and the charge of deportability, but claimed that as a C optic Catho lic she would be persecuted if returned to Egypt. Nas sralah testi fied in her own behalf and presented three other witne sse s to t

est ify in her behalf – her

sis ter -in- law, Eim an Yous sef, her m other in la w, Miriam Tadros, and her husban d, Ghob rial “Victor” Yo ussef. Because we are wr

iting only for the par

ties who a

re fam iliar with the r

ecord and the proceedings before the IJ and Board, we will lim it our discussion to the issues of law and the deter minations of th e IJ which we re corrobo rated by the Board. I. Wher e, a s her e, t he Boa rd con ductsa de no vo rev iew of an IJ ’s de cis ion, w e3

review the Board’s order as the final a gency dete

rmination, and we also review the IJ’s decision to th e extent that the B oard has ad opted or ag reed with it. Abdula i v. As hcrof

t , 239 F.3d 542, 548-549 (3d Ci r. 2001). He

re, the Board sta

ted: We agre e with the

Imm igrati on Judge that

the res pondent failed to demonstrate

by cre dible testim

ony that she quali fies for asylum under section 208(a) of the Act, 8 U.S .C. § 1158(a), or

withholding of de

portati on to Egy

pt under se ction 243(h) o f the Act, 8 U .S.C. § 12 53(h) . . . . (App. at 4.) A ccordingly, we review the IJ’s decision as w ell as the Board’s o rder. Abdulai , 239 F.3 d at 548-5 49. An alien has th e burden o f suppo rting her asylum claims through cr edible testimony. Gao v. Ashcr oft , 299 F.3d 266, 272 ( 3d Cir. 2002) . “Whether an asy lum applic ant has demonst

rated pa st per secuti on or a well- founded fear of fut ure pers ecuti on is a fac tual de termina tion r eviewed under the substa ntialevidence s tandard. ” Id. This Court must s ustai n the Board’s adverse cr edibil ity determi nation i f there is subs tanti al evid enc e in th e rec ord to su ppo rt it. Id. We have recentl y expl ained the substa ntial evidence test as foll ows:

[T]he q uestion of

whether an agency determination is supported by

substant ial evi dence isthe sam

e as the question whether a reasona ble fact finder coul d make s uch a determination based upon th e administrative record
. . . . Thus, wh ere we review [ the Board’s] credibility determination, we must ask whether the d etermination is supported by

evidence that a r easonabl e mind woul d find adequate. We lo ok at an adv erse credibility determination to ensure t hat it wa s ‘appropr

iatel y ba sed on incons istent statements, contradictor y evidences, and inh erently4 improbable testimony . . . in view of the background evidence on coun try conditions.’ Dia v. Ashcr

oft , -- F.3d -- 2003 WL 22998113 , at *13-*14 (3d Cir. Dec. 22, 2003) (en banc) (citations om

itted). “Generally, minor inconsistencie s and minor admiss ions that reveal nothing about a

n asy lum appl icant’ s fear of hi s safet

y a re not an a

dequate ba sis for an adverse credibilit

y finding.” Gao , 299 F.3d at 272 (interna l quotati ons and cit

ation omitt ed). More over, the

Board mus t provide s pecific , cogent r easons for

reaching credibility determinations. Senat hira jah v. INS , 157 F.3d 210, 216 (3d Cir. 1998). The dispositive ques tion here is whethe

r the cr edibility problem s are s o minor a

nd inconseque

ntial t hat no rea sonable fa

ctfinder could concl

ude that t hey undermine the story’s credibility. INS v. Elias-Z acarias, 502 U.S. 478, 483-484 ( 1992). We t urn to the IJ’s evaluati on of Nassra

lah’s t estim ony a nd the acc ompany

ing deter minat ion that s he lacked credibility , which the Board adopte d.

II. The IJ delivered a

detail ed twenty

-four page opinion discus sing the t estim ony of all the witness es and conc luded:

The cred ibil ity of t he re spo nde nt is of e xtre me import ance in a ssess ing the alien’s c laim . I have pointed out numerousconflict s between the res pondent’s t estim ony a nd either both o r either one [ sic] of her applications f or asylum. I’ve point ed out nume

rous contr

adicti ons between the informa tion conta

ined in her

two applic ations for

asy lum and numerous conflicts between what she told the as ylum officer at her interview and the infor mati on she eit

her gave t o the Court via liv e testimony or in her application for asylum.5 And, the re spondent’switness es are even at oddswith the responden t in some portion s of their testimony. This is a totall y incredibl e claim. The r espondent i s doubtles sly

lying to the Court, totally

fabricating an asy

lum application where there is no basis f or asylum at all. The court con siders this application and the testim ony of the respondent and her witness es to be not

hing short of r

eprehens ible in a

ttem pting to perpet rate a fraud against thiscourt and a gainst t he Government o f the United States . . . . Insofar as I have found the respondent and her application to be totally

incredible, there i s no way that I can find that s he has es tablis hed a prim e facie case for asy lum or for withholding of deportat ion. Accor

dingly , her as yl

um applica tion will be denied. (App. at 28 -29.) We agree w ith the IJ’s determination that Nassralah f ailed to establish through cre dible te stim

ony t hat she wa s the vic tim of pa st pers ecution in Egypt and had a well-founde d fear of futur e perse cution on ac count of her r eligion. We add these co mments. Reduced to its essen ce, Nassralah con tends that as a member of the Christian Coptic Orth odox ch urch her life will be threatene d by Muslim fundament

alist s if she i s retur

ned to Egy

pt. The IJ , however, provided spe cific a nd cogent re asons in s upport of his finding that Na ssral ah was not credible , including references to pa

rticul ar inst

ances of inconsist

ent tes timony , the om

issionsof facts fr

om her asy lum appl icati ons and inte

rviews, contradi ctions a

mong her a

ccounts a nd the general implausi

bility of her contentions, all of which went to the heart of Nassralah’s asylum claim. In her Nov ember 1996 asylum application , Nassralah claimed that sh e was a widow and that her husband was deceased. Later, in her 1997 application, she changed6

her story and stated that h er husband was alive and w illing to testify for her. O n her first and second application, N assralah claimed repeatedly that she was rap ed by Muslim extremist s. As the IJ noted, however, Nassral ah and her husband both testified that Nassralah was n ot raped. When read as a whole, Nassral ah’s testim ony and the test

imonies of the three other wit nessesdo not corrobor

ate Nas srala

h’s stor y r egarding pr

ior inci dents involving Muslim ex tre mis ts a

nd her fear s of re

turning to Egy

pt. Na ssr ala

h’s m other-in- law, Miriam Tadros, t estifi ed that Na ssral ah and her s on Victor we re ma rried in a rushed a

nd secret ceremony because they feared they would be attack ed by a Muslim fundamentalist leader who wanted to m

arry Nassra lah. The I

J found Tadros’ testimony unresponsi ve and unconvincing because she was not

able to t ell the court m ore inform

ation conc erning this Muslim lea

der, including his name. Tadros al so testified that Nass ralah had told her that she was ph ysically

assaulted by a Muslim extremist in December o f 1995 . The IJ, however, not

ed that onl

y with the prom

pting of Nass ralah’ s counsel did Tadros change her testimony to reflect that Nassralah was sexually assaulted. Nassralah’s hu sband, Victo r Youssef, testif ied that ten Mu slim fundamentalists, including Al

Gamma, who Nass ralah c laim s had thre atened t o kill her if she did not marry him, broke in and attacked Nassralah and Youssef at their home in Algam i after Nassralah and Youssef were mar ried. Youssef testified that his wife, Nassralah, was sexuall y m oleste d, though not ra

ped, and tha

t he was be aten, l ost consc iousnessand7

awoke in a sh ed tied to a po le. Althoug h he escaped , Youssef testif ied that he dec ided to

rema in in hiding a

nd not try to find his wi fe or conta

ct the police out of fe ar he would be traced. The IJ found Youssef’s testim ony to be confusing and unconvincing, noting that “[t]he la st that

[the husband] r

emem bered hiswife . . . was her being mole sted by fundamentalists, being mistreate d, and it doesn’t make a sc intilla of sense to the Court that he woul d not try

to make some c ontact with her, fi rst of all, to det

ermine whether

or not she was aliv e or dead, an d second, to see her cond ition.” (App . at 19.) Although Nass ralah t

estifi ed that s he went to t he police and hospita

l after she and Youssef w ere attacked by Muslim fun damentalists, the IJ noted that she did n ot submit any documentary evidence to sup port these claims. See Gao , 299 F.3d at 272 ( explaining that “the INS may require do cumentary evidence to sup port a claim, even f rom otherwise

cr ed ib le ap pl ic an ts , t o m ee t t he ir bu rd en of pr oo f” ). Na ss ra la h t es ti fi ed th at tw o d ays after he r secr et ma rriage to Youssef, her fam

ily was beat en and thei

r house ra nsacked by Muslim fundamentalis ts, but this incident was not m entioned in her affidavit. Nassralah also testified that

her husband contacted her through her brother on March 20, 1995, yet in November 1 996, she to ld the asylum officer that h er husband was deceased. T hese inconsistencies ar

e not minor or inconsequential, asthey go to the hear t of Nassralah’s asylum claim based on past persecutio n in Egypt, and th erefore, the IJ d id not err in fi nd in g t he se in co ns is te nc ie s t o i mp ug n N as sr al ah ’s cr ed ib il it y. Moreover, both the IJ and the Board rejected as unconvincing Nassralah’s8

explanat ion for the di screpa

ncies a mong her t

estim ony, her inte

rview, a nd her asy

lum applications – that the asy lum officer proceeded in English and only used the interpreter during parts of the interview, which led to her confusion. Noting, however, that Nassralah late

r conceded that she used the interpret er when she did not understand what was being ask ed, the IJ expla ined that “the C ourt is not clear h ow the respo ndent wo uld not be able to understand the questions using an interpreter t hat she brought with her.” Because a reas onable fac tfinder c ould reach the concl usion that Nassra lah’s explanati on for the discre pancies is insuf ficient, the age ncy’s decision should not be distu rbed. Lastly, we disagree with N assralah that the Bo ard’s order is v ague and f ails to specifically adopt the d ecision and re asoning o f the IJ. The B oard explicitly agreed w ith the IJ’ s credi

bility determ ination: “We agr

ee with t he Imm igrati on Judge that

the responden t failed to demon strate by credible testimony that she qualifies f or asylum . . . or withholding of deportat ion . . . ” under the Ac t. (App. a t 2.) As we

have expla

ined, the IJ’s findin g rested upo n several inco nsistencies, discrepa ncies and sho rtcomings in Nassra lah’s t estim ony. Because

the Board’ s adoption a

nd affirmance of the

IJ’s de cision was supported by substanti al evidence in the record, we ca nnot hold that the Board’s adverse credib ility determination was unreason able. III. Nassra lah’s pe tition for review of t

he order of t

he Board will be denie d.9

TO THE CLER K: Please file the foregoing opini on.

s/Ruggero J. Aldisert Circuit Judge