Of the Ninth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-1976

JOHNNY FRITS MEWENGKANG,

Petitioner,

v.

ALBERTO R. GONZÁLES,

Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,

Tashima, Senior Circuit Judge, *

and Lipez, Circuit Judge.

Wei Jia, on brief for petitioner.

Sophia A. Kapsaskis, Special Assistant U.S. Attorney, and

Michael J. Sullivan, United States Attorney, on brief for

respondent.

May 25, 2007
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TORRUELLA, Circuit Judge. In this petition for review,

Johnny Frits Mewengkang contests the decision of the Board of

Immigration Appeals ("BIA") denying his request for withholding of

removal. After careful consideration, we deny the petition for

review and affirm the decision of the BIA.

I. Background

Mewengkang is an Indonesian national. He entered the

United States on a B1/B2 visa on June 24, 1996, but remained in the

United States past the time permitted by his visa. In May 2002,

Mewengkang filed an application for asylum. On March 11, 2003,

Mewengkang was served with a Notice to Appear, charging him with

removability. Mewengkang conceded that he was removable, but

petitioned for withholding of removal on the ground that he would

be subject to persecution on account of his religion if he was

returned to Indonesia. Mewengkang presented his claim before an

immigration judge ("IJ").

The gist of Mewengkang's claim is that he is a Christian,

and that upon return to Indonesia, he would be subject to

persecution by members of the predominant religion there, which is

Islam. Mewengkang claims that his cousin was killed because he had

organized a Christian proselytizing trip to a majority-Muslim area.

Furthermore, Mewengkang claims that his general contracting

business suffered because of his refusal to join a Muslim builders'
 The IJ also noted that Mewengkang's asylum application was time- 1

barred under 8 U.S.C. § 1158(a)(2)(B), which provides that asylum

applications must be filed within one year of the alien's arrival

in the United States.

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union known as the ISNI, and that he was violently harassed after

he complained about its interference in the contracting process.

The IJ rendered a decision on the day of the hearing,

finding that Mewengkang was not credible because (1) he initially

listed one child on his asylum application when in fact he had two;

(2) there were discrepancies in Mewengkang's account of the violent

incident with the ISNI; (3) Mewengkang testified that he had not

applied for asylum until 2002 because he was unfamiliar with the

process despite familiarity with other immigration procedures; and

(4) there was a discrepancy in Mewengkang's testimony about his

employment in the United States. Furthermore, the IJ found that

even if Mewengkang's account of past persecution was credible, it

was unlikely that he would be persecuted if he returned to

Indonesia, and that Mewengkang's real motivation was economic

gain.1

Mewengkang appealed to the BIA, which affirmed by per

curiam order, stating that the inconsistencies identified by the IJ

provided a reasonable basis for rejecting Mewengkang's testimony.

The BIA order further held that Mewengkang had not established a

clear probability that he would be persecuted upon his return to
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Indonesia. Therefore, the BIA ordered Mewengkang removed, but

granted him sixty days to depart voluntarily.

II. Discussion

A. Standard of Review

The attorney general may not remove an alien whose life

or freedom would be threatened on account of race, religion,

nationality, membership in a particular social group, or political

opinion. 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of

proving that it is more likely than not that he will be persecuted.

Sharari v. Gonzáles, 407 F.3d 467, 474 (1st Cir. 2005).

Where the BIA has adopted the IJ's credibility

determination, as here, we review the determination of the IJ.

Chen v. Gonzáles, 418 F.3d 110, 113-14 (1st Cir. 2005). The BIA

has previously stated that an alien may be found incredible based

on discrepancies in testimony where "(1) the discrepancies and

omissions described by the Immigration Judge 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." Matter of 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 Matter of

A-S-). However, "an adverse credibility determination cannot rest

on trivia but must be based on discrepancies that 'involved the
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heart of the asylum claim.'" Bojorques-Villanueva v. INS, 194 F.3d

14, 16 (1st Cir. 1999) (citation omitted).

We then review an IJ's overall findings of fact to see if

they are supported by "substantial evidence." Sharari, 407 F.3d at

473. "We afford de novo review to the BIA's legal conclusions, but

cede some deference to its interpretations of the [Immigration and

Nationality Act]." Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir.

2005).

B. Was the IJ's credibility determination supported by

substantial evidence?

The IJ based his adverse credibility determination on

four discrepancies in Mewengkang's testimony. First, Mewengkang

stated on his asylum application that he only had one child, but

later testified that he had two. Mewengkang's explanation for the

discrepancy was that his immigration consultant, "Mr. Poppy," told

him that he did not have to list married children. Mewengkang

could not produce Mr. Poppy to testify. The IJ stated in his

opinion that he did not find this explanation convincing given the

possibility of an alternative explanation, namely, that the child

not listed on the asylum application had applied and been rejected

for a visa to visit the United States, and that Mewengkang thought

that listing the child would hurt his chances to obtain withholding

of removal. Because Mewengkang provides no evidence that would

support his explanation for the discrepancy in testimony and
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because we find the IJ's alternative explanation convincing, we do

not disturb the IJ's conclusion.

In addition, Mewengkang stated on his asylum application

that he had not been employed in the United States prior to 1997.

However, Mewengkang testified before the IJ that he had been

employed in a retirement home in 1996. Mewengkang provided no

explanation for this discrepancy at the hearing, and does not

attempt to do so now. Accordingly, we do not disturb the IJ's

determination that Mewengkang had not been forthcoming on his

asylum application.

Although it is unclear whether these two discrepancies go

to the heart of Mewengkang's asylum claim, the IJ did not rely on

them alone. The IJ identified two other discrepancies, one that

directly bears on the events giving rise to Mewengkang's asylum

claim, and one relating to Mewengkang's asylum application. First,

Mewengkang stated in his asylum application that when he confronted

the ISNI, "the outcome was worst. My complaint make the [ISNI]

group become violent. They attacked me and broke my right hand."

However, when testifying before the IJ, Mewengkang explained that

in fact he had lost his temper and began fighting with an ISNI

member, and that his hand was lacerated, not broken. Mewengkang

explains this discrepancy by stating that his immigration

consultant's language skills were poor, and that the confusion

resulted from a mistranslation. Again, Mewengkang did not offer
 The IJ also noted that Mewengkang had stated in his asylum 2

application that he had made a complaint to the Indonesian

government regarding discrimination, but that this was misleading

because it referred not to discrimination by the ISNI, but to

something having to do with an agricultural business he owned at

one point. Mewengkang explains that the statements were not

inconsistent, and that he made two separate complaints of

discrimination. It is not clear whether this confusion resulted

from an effort by Mewengkang to mislead the IJ or from the IJ's

misunderstanding of Mewengkang's admittedly confusing allegations,

but in either case, it is clear that the IJ listed this discrepancy

as only one example of Mewengkang's lack of candor. Thus, this

argument does not alter our conclusion that the IJ's credibility

determination was supported by substantial evidence.

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evidence that his statements had been mistranslated. Furthermore,

we agree with the IJ that the fact that Mewengkang's asylum

application made no mention of Mewengkang's role in inciting the

altercation with the ISNI seems calculated to mislead rather than

the product of an innocent mistranslation. Thus, we do not disturb

the IJ's finding that Mewengkang's explanation for the discrepancy

was not convincing.2

In addition, Mewengkang testified that he did not apply

for asylum immediately upon his arrival to the United States

because he was not aware that such a claim could be made.

Mewengkang testified that he first became aware that he could make

an asylum claim in 2000. However, although Mewengkang testified

that he was ignorant of the asylum procedures, he also testified

that he was aware of other and availed himself of other immigration

procedures, such as the visa lottery. Moreover, although

Mewengkang claims to have learned about asylum in 2000, he did not
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file his asylum application until two years later, in 2002.

Mewengkang explained that this delay was caused by his immigration

consultant, but offered no further details. We agree with the IJ

that Mewengkang's explanation for these discrepancies was

unconvincing, especially in light of his age and apparent

sophistication. Mewengkang can point to no evidence that would

support his explanation for the discrepancy, and as such, we do not

disturb the IJ's conclusion.

These discrepancies in Mewengkang's testimony, including

those regarding the events giving rise to his claim for withholding

and regarding his application for asylum and withholding provide

substantial evidence to support the IJ's credibility determination.

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

Mewengkang was not credible.

C. Did the IJ err in determining that Mewengkang was not entitled

to withholding of removal?

Mewengkang is entitled to withholding of removal only if

he can show that it is more likely than not that he will be

persecuted on account of race, religion, nationality, membership in

a particular social group, or political opinion. Sharari, 407 F.3d

at 474. The IJ determined that Mewengkang's testimony that he

would be persecuted was not credible, and that his desire to remain

in the United States was motivated by economic concerns.

Mewengkang suggests that even if the IJ determined that his

allegations of past persecution were not credible, he might still
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be entitled to withholding of removal if he can show a likelihood

of future persecution. See 8 C.F.R. 208.16(b)(2) ("An applicant

who has not suffered past persecution may demonstrate that his or

her life or freedom would be threatened in the future in a country

if he or she can establish that it is more likely than not that he

or she would be persecuted on account of race, religion,

nationality, membership in a particular social group, or political

opinion upon removal to that country."). Although Mewengkang is

correct in this assertion, he ultimately fails to point to any

evidence in the record that suggests that he would be persecuted on

account of his religion if he were returned to Indonesia; an

unsupported statement alone will not support Mewengkang's burden in

light of the IJ's adverse credibility finding. In the absence of

such evidence, we conclude that the IJ did not err in denying

Mewengkang's claim for withholding of removal.

III. Conclusion

For the reasons stated above, we deny the petition for

review and affirm the decision of the BIA.

Affirmed.