Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *

Michael B. Mukasey is substituted for former Attorney General

Alberto R. Gonzáles as respondent.

Not For Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-1076

ILIR HOXHA,

Petitioner,

v.

MICHAEL B. MUKASEY,*

ATTORNEY GENERAL OF THE UNITED STATES

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Jeanette Kain, Harvey Kaplan, and Kaplan, O'Sullivan &

Friedman, on brief for petitioner.

Lauren E. Fascett, Trial Attorney, Office of Immigration

Litigation, Civil Division, U.S. Department of Justice, Peter D.

Keisler, Assistant Attorney General, Civil Division, and David V.

Bernal, Assistant Director, Office of Immigration Litigation, on

brief for respondent.

December 7, 2007
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TORRUELLA, Circuit Judge. Ilir Hoxha applied for asylum,

withholding of removal, and relief under the federal regulations

implementing the Convention Against Torture ("CAT"). An

immigration judge ("IJ") found him not credible, denied all of his

claims, and ordered him removed. He appealed to the Board of

Immigration Appeals ("BIA"), which affirmed the IJ's opinion.

Hohxa now petitions for review of the BIA's denial of his appeal,

claiming the BIA erred in finding him not credible. He also raises

a new claim that his due process rights were violated in an early

series of immigration hearings. After careful consideration, we

deny the petition.

I. Background

Hoxha is an Albanian national who entered the United

States in December 1999 on a false passport. He did not speak

English, and enlisted the help of another Albanian -- Hamdi Dega --

in preparing and filing his asylum application on September 6,

2000. Dega's brother, Agim Dega, served as Hoxha's translator

during the initial interview with an asylum officer, who then

prepared and filed an assessment memo on October 17, 2000. A

series of hearings was held before an IJ in New York. Upon

discovering that the application had been prepared by Hamdi Dega,

who is not authorized to practice law and is notorious for

inventing stories in Albanians' asylum applications, the IJ

declared that he would not consider the asylum application. Hoxha

subsequently submitted a statement, dated April 17, 2001, in which

he purported to correct the inaccuracies in the application. The
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IJ found this statement insufficient and ordered that an entirely

new application be prepared. Hoxha then prepared a second

application with the assistance of a lawyer, and submitted it on

July 25, 2001. At a subsequent hearing, the IJ berated Hoxha at

length for being so foolish as to choose Dega to assist him. No

testimony was taken at any of these New York hearings.

Hoxha requested and was granted a change of venue to

Boston. The new IJ re-marked all of the documentary evidence, and

Hoxha testified in support of his application. Hoxha stated that

he became actively involved in the Albanian Democratic Party

following the restoration of democracy in 1990. In a 1992 protest,

Hoxha and his father were arrested and held in detention for two

days; they were warned to cease their involvement in Democratic

Party activities. Despite this warning, Hoxha continued to be

active. He served as an election observer on behalf of the

Democratic Party in June 1997, and refused to certify the election

because of what he claimed was Socialist Party manipulation of the

votes. According to Hoxha, Socialist Party members threatened him

and dynamited a part of his house; he soon grew so afraid that he

agreed to certify the vote. In August 1998, the secret service

searched Hoxha's house; Hoxha was absent, but they beat his father,

who died two days later. Hoxha testified that, in September 1998,

he attended the funeral of an assassinated Democratic Party leader

and was beaten by police with rubber sticks. A few days later he

was arrested, questioned about Democratic Party activities,

threatened, and beaten again. Hoxha was arrested and detained yet
At one of the several hearings in Boston, the IJ stated that he 1

would give no weight to the application prepared with the help of

Hamdi Dega.

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again in October 1999, and was told he would be killed if he

continued his Democratic Party activities. Shortly thereafter,

Hoxha left for the United States.

On May 26, 2005, the IJ denied Hoxha's request for

asylum, withholding of removal, and CAT relief because Hoxha had

failed to provide credible testimony in support of his alleged fear

of persecution in Albania. The IJ pointed to a number of 1

inconsistencies between Hoxha's testimony and other evidence in the

record, including the following: (1) documents submitted by Hoxha,

Hoxha's testimony, and a written statement by Hoxha's mother

provided various different dates for when Hoxha became active in

the Democratic Party; (2) Hoxha testified that he stopped giving

money to the Party after he became unemployed in 1997, but in his

July 2001 asylum application he stated that he was employed as a

salesman from 1997 to 1999; (3) the personal statement accompanying

Hoxha's July 2001 application asserts that he was hit with a rifle

butt at the 1998 funeral; an April 2004 affidavit submitted by

Hoxha asserts he was hit with a baton; Hoxha testified that he was

hit with rubber sticks; and he makes no mention of this incident at

all in the April 2001 statement; (4) Hoxha testified that he, his

brother, and his mother were beaten when the police came to arrest

him at his home in September 1998, but neither the April 2001

statement nor the April 2004 affidavit mention this beating, and
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his mother's statement also makes no mention of it; (5) the asylum

officer's October 2000 assessment memo, prepared on the basis of

Agim Dega's translation, stated that Hoxha's father was hit with

the butt of a gun during the September 1998 incident, but also

states that his father died in August 1998; (6) the October 2000

assessment memo also stated that, in October 1999, Hoxha was

arrested and boiled eggs were placed under his armpits, but Hoxha

testified that no boiled eggs were ever placed under his arms; (7)

Hoxha testified at the hearing and asserted in the July 2001

statement that he was threatened by Socialists the night before the

1997 elections, but the April 2001 statement and the 2004 affidavit

state that he was threatened on the evening of the elections; (8)

Hoxha testified that an explosive device went off at his house in

July 1997, but that no one was injured; the October 2000 assessment

memo states that Hoxha and his father were injured in the

explosion; and the April 2001 statement states that Hoxha and both

his parents were injured; and (9) documents presented by Hoxha show

that the Albanian police issued him a passport after he had left

Albania, even though Hoxha claimed this same police force was

seeking to kill him for his political involvement.

The BIA affirmed the IJ's determination. While it

faulted the IJ for considering the October 2000 assessment memo, as

it had been prepared based on a translation provided by Agim Dega,

the BIA nonetheless concluded that the IJ's adverse credibility

determination was not clearly erroneous. It briefly discussed

three examples of the discrepancies in the evidence on record and
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concluded that "[i]nasmuch as the respondent failed to provide a

convincing explanation for these discrepancies -- other than to

place blame on others, including the [Democratic Party of Albania]

Secretary, his attorney's translators, and his mother's memory --

we find no clear error in the Immigration Judge's adverse

credibility determination in this case . . . ."

Hoxha now petitions for review of the BIA's adverse

credibility determination. He also raises a new claim, that the

BIA erred in neglecting to consider due process violations that

occurred at the hearings before the IJ in New York. Hoxha requests

that we vacate the adverse credibility finding and remand for

further proceedings to consider his substantive asylum,

withholding, and CAT claims. After careful consideration, we

affirm the decision of the BIA.
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II. Discussion

A. Standard of Review and Applicable Law

Ordinarily, we review decisions of the BIA only; however,

where the BIA has deferred to or adopted and affirmed findings of

the IJ, we also review the adopted portion of the IJ's decision.

Hernández-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004); see

also Mewengkang v. Gonzáles, 486 F.3d 737, 739 (1st Cir. 2007)

("Where the BIA has adopted the IJ's credibility determination,

. . . we review the determination of the IJ."). An applicant for

asylum must prove he is a refugee within the meaning of the

Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1), which he

may do by showing "past persecution or a well-founded fear of

future persecution" based on political opinion. Ali v. Gonzáles,

401 F.3d 11, 15 (1st Cir. 2005). The evidence in support of this

showing must be both "credible and specific." Bojorques-Villanueva

v. INS, 194 F.3d 14, 16 (1st Cir. 1999).

An alien may be found incredible based on discrepancies

in testimony where "(1) the discrepancies and omissions described

by the [IJ or BIA] are actually present; (2) these discrepancies

and omissions provide specific and cogent reasons to conclude that

the respondent provided incredible testimony; and (3) the

respondent has not provided a convincing explanation for the

discrepancies and omissions." In re A-S-, 21 I. & N. Dec. 1106,

1109 (BIA 1998); see also Hoxha v. Gonzáles, 446 F.3d 210, 216-17

(1st Cir. 2006) (applying test from In re A-S-). Yet "an adverse

credibility determination cannot rest on trivia but must be based
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on discrepancies that involved the heart of the asylum claim." See

Bojorques-Villanueva, 194 F.3d at 16 (citation and internal

quotation marks omitted).

We accord "significant respect" to the adverse

credibility determination of an IJ or the BIA, provided it is

supported by specific findings in the record. Afful v. Ashcroft,

380 F.3d 1, 4 (1st Cir. 2004) (quoting Aguilar-Solís v. INS, 168

F.3d 565, 571 (1st Cir. 1999)). We review the reasons given for

disbelieving an asylum applicant under the "substantial evidence"

standard: the credibility determination "must be upheld if

supported by reasonable, substantial and probative evidence on the

record considered as a whole." Mendes v. INS, 197 F.3d 6, 13 (1st

Cir. 1999) (quoting INS v. Elías-Zacarías, 502 U.S. 478, 481

(1992)) (internal quotation marks omitted). We will uphold an

adverse credibility determination unless the record evidence would

compel a reasonable factfinder to make a contrary determination.

Stroni v. Gonzáles, 454 F.3d 82, 87 (1st Cir. 2006).

Aliens facing removal are entitled to due process under

the Fifth Amendment. Ishak v. Gonzáles, 422 F.3d 22, 32 (1st Cir.

2005). We review due process claims asserted in immigration

proceedings de novo. Zheng v. Gonzáles, 464 F.3d 60, 62 (1st Cir.

2006).
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B. Credibility Determinations

Hoxha argues that we should ignore the IJ's decision, and

look only at the reasons given by the BIA, because the BIA did not

adopt the IJ's reasoning; instead, it "rendered its own decision

based on its own review of the record and some, but not all, of the

[IJ]'s reasons." We disagree. As noted above, we read the IJ's

findings as those of the BIA to the extent that the BIA has

deferred to or adopted them. See Hernández-Barrera, 373 F.3d

at 20. In this case, although the BIA did not expressly state that

it adopted the IJ's findings concerning the discrepancies between

Hoxha's testimony and other documents in the record, it clearly

deferred to them, with one significant exception: the BIA

determined that the IJ had erred in relying in part on the October

2000 assessment memo prepared on the basis of Agim Dega's

translation. "Be that as it may," the BIA stated, "we note that

the Immigration Judge identified a number of other inconsistencies

and omissions . . . ." The BIA then proceeded to enumerate three

examples of the many given by the IJ. The Board was not required

to repeat and expressly endorse each of the IJ's reasons seriatim.

We thus turn to whether the IJ's credibility

determination, as deferred to by the BIA, is supported by

substantial evidence on the record considered as a whole. Some of

the inconsistencies cited by the IJ are trivial and, standing

alone, would probably not provide substantial evidence in support

of an adverse credibility determination. The obvious example is

the discrepancy concerning what type of weapon -- rifle butt,
 We disregard the cited inconsistency as to whether Hoxha's 2

father was still alive to have suffered a beating at the September

1998 funeral. We also disregard the inconsistency over whether

boiled eggs were placed under Hoxha's arms.

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baton, or rubber stick -- was used to beat Hoxha at the 1998

funeral. Nevertheless, even disregarding the IJ's findings that

hinged upon an inconsistency between the October 2000 assessment

memo and another document or Hoxha's testimony, other 2

inconsistencies strike closer to the heart of Hoxha's asylum claim,

particularly those that have to do with whether Hoxha or his family

were harassed or beaten, and the extent of such harassment or

beatings. We discuss two examples. First, Hoxha testified that he

and his mother were beaten when the police arrested him in

September 1998; however, none of the documents in the record

mention this beating including, most tellingly, Hoxha's mother's

statement. Considering the trauma such an event would have caused,

one would expect the mother to have remembered to mention it in her

statement supporting her son's asylum application. Hoxha's

explanation that she is simply forgetful is unconvincing. Second,

Hoxha testified that no one was injured when an explosive device

was detonated at his home in July 1997; this evidence contradicted

his assertion in the April 2001 statement that he and his parents

were injured. Even ignoring the October 2000 assessment memo's

corroboration that Hoxha and his father were injured, the

discrepancy between Hoxha's testimony and the April 2001 statement

is clear and significant. When confronted with the discrepancy at

one of the hearings, Hoxha attempted to explain that what he
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intended to say in the April 2001 statement was that he and his

family suffered psychological, not physical, injury. The IJ

obviously disbelieved this explanation or was otherwise unconvinced

that it cured the discrepancy, and we see no reason to disturb this

finding.

Considering the cumulative effect of the various

cognizable discrepancies among the pieces of evidence in the

record, we find that a reasonable trier of fact would not be

compelled to reach a determination different from that of the IJ.

As such, we conclude that the IJ did not err in concluding that

Hoxha was not credible, and the BIA did not err in affirming and

adopting the IJ's adverse credibility finding.

C. Due Process Claim

Hoxha claims that he was denied due process in the New

York hearings because the IJ "ranted and raved for hours about

[his] choice of Hamdi Dega," "repeatedly implied that [he] should

not be believed" because of "choices he made with his legal

representation," and took judicial notice that Hamdi Dega had been

a high-ranking Communist official in Albania. According to Hoxha,

the notion that he would choose to associate with Hamdi Dega called

into question his story that he had been persecuted by Albanian

Socialist Party members, and this tainted his credibility in

further proceedings.

This argument is unpersuasive. An applicant claiming a

due process violation cannot prevail unless he shows that prejudice

resulted. See, e.g., Kheireddine v. Gonzáles, 427 F.3d 80, 85 (1st
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Cir. 2005). After transfer to Boston, the IJ deliberately remarked all the documentary evidence and conducted a completely new

hearing on the merits, thus providing Hoxha with a clean slate.

There is no indication in the respective decisions of the BIA or

the IJ, or anywhere else in the record, that either paid regard to

the observations or opinions of the IJ in the New York proceedings.

More fundamentally, Hoxha did not raise this specific claim before

the BIA, and has thus failed to exhaust administrative remedies.

See Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999) (failure to

sufficiently raise due process claim at deportation hearings or

before BIA precludes judicial review).

III. Conclusion

The petition for review is denied.