NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0851n.06 No. 10-3355 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

NABIL ABDO SAIF, P etitioner

–Appellan t,

v. ERIC H. HOL DER, JR., Respondent–App ellee. ) ) ) ) ) ) ) ) ) ) ) ON P ETIT ION F OR REVIEW F ROM AN ORDER O F THE BOARD OF IMMIG RATION AP P EALS

Before: CLAY, G IBBO NS, and WHITE , Circuit Judges

. JULIA SMITH GIBBONS, Circuit Judge. Nabil Abdo Saif seeks revie w of a final order of remova l from the Boa rd of I mmigr at ion Appea ls (“B I A”) aff irming the decision of an I mmigra tion J udg e (“I J ”) that found him ineligible for asy lum, withholding of remova l, or relief under the Convention Ag ainst Torture and order ed him returne d to Yemen. For the rea sons set forth below, we deny

the petition for re view. I. Saif is a citizen of Yeme n who entered the United S tates on J uly 27, 1995. He ove rstay ed his visa, was order ed to appea r befor e an I J , and then filed a petition for asy lum and withholding of

remova l. Saif made two principal claims in his application and at his r emoval hear ing on May 19, 2008. First, Saif stated that he would be perse cuted if he returne d to Yemen, as he had chang ed his

-1-No. 10-3355

Saif v. Holder relig ious beliefs and conver ted to the Ba

ptist faith. Second, Saif cl ai m ed t h at he would be perse cuted beca

use he had voluntarily share d information with Americ an officia ls in Yemen in the

ear ly 1990s about the perpe trators of the U.S. embassy b o m b i n g an d had voluntarily share d information with FB I

officia ls in the United States after the September

11, 2001 attacks. The I J denied Saif’ s application and or dere d him removed. The I J found that Saif wa s not

cre dible with respe ct to his claim that he fea red perse cution on acc ount of his relig ious beliefs. He noted that Saif would not answe r cer tain questions and also cited inconsistencies betwee n what Saif stated in his asy lum application and wha t he related at the hearing

. He further note d that Saif had
not been b ap t i z ed o r become a member of the Ba ptist churc h, nor had Saif provided cre dible evidenc e of r eg ular c hurch a ttendance . The I J found that the testim ony of S aif’s only witness, his ex-wife, lent littl e support to his claim, espec ially since she was financ ially depende nt upon Saif and would be directly aff

ecte d wer e he remove d. Moreove r, t h e I J found t hat t here was not sufficie nt evidenc e of a pattern or prac tice of perse cution of C h ri stian conver ts in Yemen, a finding

u n n ec es sary to his final ruling beca use he had found no cre dible evidenc e that Saif had indeed

conver ted to Christianity

. The I J also found that Saif’s second claim—that he fea red perse cution on

acc ount of his cooper ation with Americ an officia ls—lacked cre dibilit y and corr oboration. Finally , he denied Saif’s claims under the Convention Ag ainst Torture , as S aif had prese nted no ev i d en ce that he would be ha

rmed upon his re turn to Yemen, le t alone torture d. The B I A af

firmed a nd elabor ated upon the decision of the I J . Wit h respe ct to Saif’s cla im that he fea red perse cution based upon his conver sion to Christianity , the BI A found Saif’s testimony “vagu e an d non-re sponsive.” The BI A noted that Saif had provided no documentar y evidenc e of -2-No. 10-3355

Saif v. Holder reg ular churc h attendanc e, could not reme mber the name of one of the churc hes he sup p osedly attended, and could not reme mber the name of a neig hbor with whom he went to churc h. The BI A also ag ree d with the I J ’s deter mination that Saif had not provided any documentar y evidenc e to support his claim that he spoke with Americ an officia ls, documentar y evidenc e that s h o u l d have been r eadily

available

. The BI A did find that the I J had made some “unn ec es sary comments” about Saif’s living

arr ang ements and had i n s i n u ated that Saif had hidden evidenc e, but those comments did not undermin e the conclusion that Saif’s testimony was inconsistent and unsupported by adequate documentation. Acc ording ly , the BI A aff irmed the I J ’s decision to deny Saif’s asy lum, withholding of re moval, and Tortur e Convention claims. On appeal, Saif contests the denial of his withholding of remova l claim and h i s T o rt u re Convention claim; he does not contest the denial of his a sy lum c laim. Saif arg ues (1) that the BI A

err ed in finding that he had not met his burden of proof for relief , due in larg e part to its finding that he lacke d cre dibilit y and corr oborating evidenc e; and (2) that his due proce ss rig hts wer e violated. This court has jurisdiction over final order s of remova l pursuant to 8 U.S.C. § 1252. Singh v. Ashcroft , 398 F.3d 396, 400 ( 6th Cir. 2005). II. Under § 241(b)( 3) of the I mmigra tion and Natura liz ation Act, “the Attorney Gene ral may not

remove an alien to a country if the Attorney Gene ral decide s that the alien’s life or fre edom would be t h re at en ed in that country beca use of the alien’s rac e, relig ion, nationality , membership in a particula r social g roup, or political opinion.” 8 U.S.C. § 1231(b)( 3)(A)

. To qualify for withholding -3-No. 10-3355

Saif v. Holder of remova l, an ali en bear s the burden of showing a “cle ar probability ” of perse cution. Liti v. Gonzales , 411 F.3d 631, 640–41 (6th Cir. 2005)

. The alien must, in other words, establish that “it is more likely than not that he

. . . would be perse cuted on acc ou n t o f [a protec ted g round] upon

remova l to that country .” Haider v. Holder , 595 F.3d 276, 284 (6th Cir. 2010) (alte ra t i o n s in orig inal) (quoting 8 C.F.R. § 208.16(b)( 2)). Simi lar l y , to qualify for relief under the Convention Ag ainst Torture , an “alien must ‘establish that it is more likely than not that he or she would be tortured if remove d to the proposed

co u n t ry of remova l.’” Dugboe v. Holder , 644 F.3d 462, 472 (6th Cir. 2011) (quoting 8 C

. F. R

. § 1208.16(c) (2)) . To qualify for relief under the Torture Convention, a n alien need not de monstrate that the alleg ed harm will result from one of the enumer ated five g rounds (ra ce, relig ion, nationality , social g roup, or political opinion), but he “must establish a ‘par ticularized threa

t of torture.’ ” Almuhtaseb v. Gonzale

s , 453 F.3d 743, 751 ( 6th Cir. 2006) (citation omitted). A. Adverse Cre dib ility Dete rm ination Where the BI A revie ws the I J ’s decision and issues a separ ate opinion, rathe r than summarily aff irming the I J ’s decision, we revie w the BI A’s decision as the final ag ency deter mination. Khalil i

v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). To the extent the BI A adopted the I J ’s re as o n i n g , howeve r, we also revie w the I J ’s dec ision. Id. This court looks to whether the decisions of t he I J and the BI A are supported by substantial evidenc e. Mostafa v. Ashcroft , 395 F.3d 622, 624 (6th Cir. 2005). Under that standard, we may only reve rse if their “dec ision was manifestly contra ry to law, that is, if the evidenc e not only supports a contra ry conclusion, b u t i n d ee d co mpels it.” CruzSamayoa v. Holder , 607 F.3d 1145, 1149 (6th Cir. 2010 ) (i n terna l citations and quotation marks -4-No. 10-3355

Saif v. Holder omitted); 8 U.S.C. § 1252(b)( 4)(B ) (pr oviding that “ administrative finding s of fa ct are conclusive unless any

rea sonable a djudicator would be compelled to conc lude to the contra ry ”). An adver se cre dibilit y deter mination is a valid basis for deny ing an alien’s claim. See Vasha

v. Gonzales , 410 F.3d 863, 871–72 (6th Cir. 2005)

. Be cause finding s of cre dibilit y are considere d finding s of fac t, this court applies the substantial evidenc e standard. Sylla v. INS , 388 F.3d 924, 925 (6th Cir. 2004). Acc ording ly , “an adver se cre dibilit y finding is aff orded substantial defe renc e, [but ]

. . . m u s t b e s u p p orted by specific rea sons.” Id. at 926. “Unde r the REAL I D Act, cre dibilit y deter minations are based on the ‘totality of the circ umstances’ and should take in t o ac co u nt ‘all rele vant fa ctors.’” Hache m v. Holde r , 656 F.3d 430, 434 ( 6th Cir. 2011). These f actor s include 1 the demea

nor, candor , or respo nsiveness of the applicant or witness, the inhere nt plausibilit y of the applicant’ s or witness’s acc ount, the consistency betwee n the applicant’ s or witness’s written and oral statements (whe never made and whether or not under oath, and considering the circ umstances under which the statements wer e made) , the internal consistency of eac h such statement, the consistency of such statements with other evidenc e of rec ord (including the repor ts of the Depa

rtment of State on country conditions), and any inacc urac ies or falsehoods in such statements, without reg ard to whether an inconsistency , inacc urac y , or falseh o o d g oes to the hear t of the a pplicant’s cla im, or any

other re levant fa ctor. 8 U.S.C. § 1158(b)(1)( B) (iii); El-Moussa v. H older , 569 F.3d 250, 256 ( 6th Cir. 2009). Her e, sufficie nt evidenc e supports the finding that Saif was not cre dible. Both the I J and the BI A noted sever al inconsistencies and weaknesses in Saif’s testimony

. Saif had told the I J in 2006 that he would be baptized “soon” but then repe ated the same statement to th e I J i n 2 0 0 8

. T he I J

The REAL I D Act applies to all applications for asy lum, withholding of remova l, or other 1 forms of relief filed afte r May 11, 2005. El-Moussa v. Holder , 569 F.3d 250, 256 (6th Cir. 2009). Saif filed his applica tion on April 25, 2006, and there fore the REAL I D Act a pplies to his case. -5-No. 10-3355

Saif v. Holder noted that on Saif’s asy lum application in 2006, he claimed he had been attending churc h “for about four y ear s” but admitted in his testimony at the remova l hear ing that he had only attended churc h a handful of times prior to 2006. Moreove r, as the BI A noted, Saif could not reme mber the name of one of the chu rc h es he supposedly attended and could not reme mber the name of a neighbor with whom he went to churc h. Over all, both the I J and BI A found Saif ’s t es timony non-re sponsive. These inconsistencies and wea knesses, contra

ry to Saif’s asser

tions, are not minor: t h ey go to whether Saif provided cre dible evidenc e that he had conver ted to Christ i an i t y , wh ich serve d as a basis for his cla im of fea

r of pe rsec ution. 2 Fur ther, Saif’s corr oborating evidenc e wa s particula rly weak. Saif produce d two near ly identical letters to document his churc h attendanc e, but eac h letter o n l y co n fi rm ed that Saif had visited the churc h once and appea r to be form letters sent to visitors, not reg ular churc h-g oers. Saif failed to provide any reliable corr oborating evidenc e that he had attended churc h reg ularly —either throug h a letter or a witness that could confirm his reg ular attendanc e. Saif’s ex-wife did testify that Saif had reg ularly attended churc h starting in 2006 but, as the I J noted, Saif’s ex-wife was financ ially depende nt upon him, and would be direc tly aff ecte d by his remova l. The I J was entitled, in his role

as fac t-finder , to acc ord her testimony less weig ht. See Aichai Hu v. Holder , 335 F. App’x 510, 515 (6th Cir. 2009) (holding t hat an I J is require d to assess the cre dibilit y of t he witnesses who t estify and to deter

mine what weig ht their testimony deser ves). Moreove r, there was no evidenc e that Saif

I n any event, this court has rec og nized that the REAL I D Act’s cre dibilit y s t an dard 2 “entitle[s] the I J ’s overa ll adver se cre dibilit y deter mination to defe renc e, reg ardle ss of whether the inconsistencies be ar on the hear t of [an applicant’s] claim.” El–Moussa , 569 F.3d a t 256.

-6-No. 10-3355

Saif v. Holder had been baptized or had become a member of the Ba ptist churc h. Take n alone, not being baptized

or not being a member of the Ba ptist churc h would not be fata l to Saif’s claim—but when combined with Saif’s lack of

cre dibilit y

and docume ntary

evidenc e, these fac ts are mor e compe lling. 3 The I J ’s expectation that Saif produce corr o borating information about reg ular churc h attendanc e was—in light of his la ck of cre dibilit y —entirely permissible. See Y an Chen v. Holder , 423 F. App’x 557, 561 (6th Cir. 2011) (“B eca use the immigra tion judg e found that [t he applicant]

was not cr edibl e, he could have proper ly deter mined that she was obliga ted to provide objective

corr oboration of her claims.”); see also Dorosh v. Ashcroft , 398 F.3d 379, 382 (6th Cir

. 2004) (“[W] here it is rea sonable to expect corr oborating evidenc e for cer tain alleg ed fac ts perta ining to the specific s of an applicant’ s claim, such evidenc e should be provided.” ) (interna l quotation marks and citation omitted). An I J is “pe rm i t t ed t o rely on the failure of an alien to prese nt corr oborating evidenc e when making a cre dibilit y deter mination and wher e there are also inconsistencies in the alien’s testimony .” Ikharo v. Holder , 614 F.3d 622, 634 (6th Cir. 2010). The BI A and I J wer e thus permitted to rely in part on Saif’s lack of reliable corr oborative evidenc e in finding him not cre dible. The inconsistencies and wea knesses in Saif’s testimony , as well as the lack of corr oborating evidenc e, led the I J and BI A to find Saif not cre dible. Viewing the rec ord in its entirety , a rea sonable

Saif incorre ctly contends that the I J an d BI A questioned whether Saif was a Christian 3 beca use he had not been baptized. First, that is not the case : at no time did either the I J or the BI A hold tha t Saif

’s claim of relig ious c onversion failed solely beca use he had not been baptized. And second, the only rea son that the rit ual o f b ap t i s m b ec am e rele vant was that Saif stated t o the I J in 2006 that he wa s g oing to g et baptized “soon,” a claim he r epeated to the I J in 2008. -7-No. 10-3355

Saif v. Holder fac t-finder would not be compelled to rea ch a contra ry conclusion. See Cruz-Samayoa , 607 F.3d at 1149; 8 U.S.C. § 1252(b)(4)(B ). Ther efor e, we aff irm the adve rse c redibility finding

. Be cause the same cre dibilit y standard applies to c laims f or withholding of remova l and for relief under the Torture Convention, El-Moussa , 569 F.3d at 256, and beca use Saif bases his claim that it is more likely than not that he will be tortured on the same g round as his claim that it is more likely than not that he will be perse cuted, i.e. , that he has conver ted to Christianity , the adver se

cre dibilit y finding extends to both claims. See Berri v. Gonzales , 468 F.3d 390, 398 (6th Cir. 2006). 4 Fur ther, beca use we aff

irm the adver se cre dibilit y finding , it is not nece ssary to r eac h the question whether the I J ’s finding on country conditions was proper , as Saif failed to provide cre dible evidenc e that he had c onverte d to Christi anity and, ther efor e, would be at risk in Yemen. B. Due P roce ss Saif further claims that the I J violated his due proce ss rig hts by “deva luing [S aif’s] testimony in favor of fac ts cre ated in his own mind from which he dr[ew] conclusions,” and “disreg ard[ing]” evidenc e without rea soned explanation. I t i s u n d i s p u t ed that all applicants for withholding of

remova l or other f

orms of similar relief

enjoy a F ifth Amendment rig ht to a full and fa ir hea ring

. Hache m v. Holder , 656 F.3d at 435 (citing Ndrecaj v. Mukase y , 522 F.3d 667, 673 (6th Cir. 2008)); see generally Reno v. Flores , 507 U.S. 292, 306 (1993). I n other words, aliens “are entitled to an unbiased arbiter who has not pr ejudg ed their claims.” Ahmed v. Gonzales , 398 F.3d 722, 725 (6th

Saif does not contest the I J ’s and BI A’s fi n d i n g that he insufficiently corr oborate d his 4 alleg ed conver sations with Americ an officia ls in Yemen in the 1990s and in the United States afte r September 11, 2001. Saif has ther efore waived the issue. See Sec. W atch, Inc. v. Sentinel Sys., Inc .,176 F.3d 369, 376 ( 6th Cir. 1999). -8-No. 10-3355

Saif v. Holder Cir. 2005). I n o rd er t o p re vail on a due proce ss claim, an alien must establish both err or and substantial prejudice

. Garza-More no v. Gonzales , 489 F.3d 239, 241 ( 6th Cir. 2007). We review alleg ations of violations of due proc ess de novo

. Id. Saif claims that a number of the comments made by the I J demonstrate that the I J disreg arde d evidenc e, having alre ady come to a pre- deter mined conclusion reg arding those claims. As an initial matter, it is important to note tha t the BI A disag ree d with some of the I J ’s comments about whic h Saif now complains—specif ically reg arding Saif’s living arr ang ements and marria g es, his hiding of evidence, an d h i s never attending churc h—and found them “unnec essar y .” We ag ree that these
comments wer e unnec essar y , but they

do not demonstrate c onscious disreg ard of evidenc e or bias in favor of the g overnme nt. See Hache m , 656 F.3d at 435 (isolated sarc astic rema rk insufficient to show due proce ss violation); Hassan v. Gonzales , 403 F.3d 429, 437 (6th Cir. 2 0 0 5 ) (b rusque lang uag e insuffic ient to show bias in favor of g overnme nt). Saif also cl ai ms that the following comments, unaddre ssed by the BI A, evince bias or conscious disreg ard of evidenc e: (1) the I J ’s observa tion that Saif “cr ossed himself” like a Catholic and (2) the I J ’s obs erva tion that Saif thought that mere ly shaking hands wit h a pasto r made him a Christian. As to the first comment, it is unclea r from the rec ord what, if any , infere nce the I J drew from his observa tion that Saif wa s crossing himself. But even if the infere nce was questionable (that, for instance, it is only appropr iate for Catholics to cross themselves), it does not indicate that the I J failed to consid er fa i rl y Saif’s evidenc e—the touchstone of a due proce ss violation. See Ndrecaj , 522 F.3d at 673 (finding no due proce ss violation wher e there was “no evidenc e that [t he I J ] did not fairly consider the [applicants’] evidenc e”)

. As to the second comment, the I J ’s rema rk -9-No. 10-3355

Saif v. Holder that Saif thought that shaking hands with a pastor made him a Christian w as mere ly a ref lection of the fa ct that Saif had pr ovided ver y littl e corr oborative evidenc e of his r eg ular churc h attendanc e. The comment was arg uably sarc astic, but this court has found that such comments, standing alone, do not amount to a due proce ss violation. See Hache m , 656 F.3d at 435; Pepaj v. Mukase y , 307 F. App’x. 891, 897–98 (6th Cir. 2009) (“A lthough the I J ’s occa sional sarc astic comments we re

unnece ssary and inappropria te, a few such comments are not e noug h to show that an I J was biased to the level of a

due-pr ocess violation.”)

. Taking both the oral decision as well as the hear ing transcr ipt as a whole, there is insufficient evidenc e to show a due proce ss violation. The I J made some unne cessa ry comments at times, but

overa ll he conducte d a thoroug h and fa i r h earing

. Cf. Ahmed , 398 F.3d at 726–27 (finding due proce ss violation wher e I J misstated and misunderstood applicant’ s testimony , confuse d witnesses, and then “lar g ely based his denial of asy lum on cre dibilit y finding s based upon confuse d exchang es wh i ch we re i nstiga ted by his own failure to understand corr ectly [t he applicants’] answe rs to his questions”). Ac cording ly , we f ind that the I J did not violate Saif’s due proc ess rig hts.

III. For the fore g oing r easons, we deny the petition for re view.

-10-