2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-9-2010

Issa Nour v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1030

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"Issa Nour v. Atty Gen USA" (2010). 2010 Decisions. Paper 1173.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1030

___________

ISSA YOUSSOUF NOUR,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A98-929-654)

Immigration Judge: Honorable Frederic G. Leeds

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 24, 2010

Before: MCKEE, Chief Judge, HARDIMAN and COWEN, Circuit Judges

(Opinion filed: June 9, 2010)

___________

OPINION

___________

PER CURIAM

Issa Youssouf Nour, a.k.a. Nour Issa Youssouf, apparently a native and citizen of
 All the evidence in the record (including identity documents) suggests that Nour is a 1

native and citizen of Chad. In conceding removability, Nour necessarily agreed with one

basis for the charge – that he is a native and citizen of Chad. However, the Immigration

Judge (“IJ”) stated that Nour “is allegedly a native and citizen of Chad,” and the Board of

Immigration Appeals wrote that Nour “claims to be a native and citizen of Chad.” 

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Chad, entered the United States in October 2005 as a nonimmigrant student to attend a 1

language school in New York. He did not attend the school, and the Government charged

him with removability for failing to comply with the conditions of his status. Nour

conceded the charge and applied for asylum, withholding, and protection under the

Convention Against Torture (“CAT”). 

The IJ made an adverse credibility determination and denied Nour’s claims for

asylum and withholding on that basis. The IJ denied the CAT claim on the grounds that

Nour’s “claims [we]re not credible” and that Nour did not “present any additional

evidence to indicate that it is more likely than not that he would be tortured if removed to

Chad.” The Board of Immigration Appeals (“BIA”) dismissed Nour’s subsequent appeal,

ruling that the IJ’s credibility finding was not clearly erroneous and was supportable

under the REAL ID Act standards. The BIA further held that Nour did not present “any

credible evidence, independent of the [IJ’s] adverse credibility finding, that he would

more likely than not be tortured” in Chad. Also, the BIA rejected Nour’s claims of due

process violations and held that the IJ did not err in denying a continuance. 

Nour, through counsel, submits a petition for review. He argues that, for various

reasons, the adverse credibility finding is not supported by substantial evidence. He
 We recognize that the parties present competing arguments regarding the standard 2

that an IJ must follow in making credibility determinations. We note that before the

enactment of the REAL ID Act of 2005, an adverse credibility determination could be

based on inconsistencies only if the inconsistencies went to the heart of the claim. 

See Chukwu v. Attorney Gen. of the United States, 484 F.3d 185, 189 (3d Cir. 2007). 

However, a new REAL ID Act standard, which provides that “credibility determinations

may be made ‘without regard to whether an inconsistency, inaccuracy, or falsehood goes

to the heart of the applicant’s claim,’” applies to Nour’s case because he filed his

application for relief from removal after May 11, 2005. See id. (quoting the REAL ID

Act); see also Kaita v. Attorney Gen. of the United States, 522 F.3d 288, 296 (3d Cir.

2008). Although we have not yet spoken on what the change in the law means, we note

that we would come to the same conclusion about the credibility determination in this

case under the pre-REAL ID Act standard and any stricter standard of review that follows

from the REAL ID Act. See, e.g., Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 

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contends that the adverse credibility determination was made in violation of the REAL ID

Act and is otherwise inconsistent with applicable law. Nour also states that the IJ

erroneously relied on the adverse credibility determination to conclude that Nour could

not make out a claim of future persecution. 

We have jurisdiction over Nour’s petition under 8 U.S.C. § 1252. We review

factual findings, like an adverse credibility determination, for substantial evidence. 

See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). An adverse credibility finding

must be afforded substantial deference, so long as the finding is supported by sufficient,

cogent reasons. See id. at 434. We evaluate whether the credibility determination was

“appropriately based on inconsistent statements, contradictory evidences, and inherently

improbable testimony . . . in view of the background evidence of country conditions.”2

Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). 
 His visa was issued on October 12, 2005. R. 633. 

3

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In this case, a reasonable adjudicator would not be compelled to make a favorable

credibility determination, see Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004)

(explaining that an adverse credibility finding must be upheld unless any reasonable

adjudicator would be compelled to conclude to the contrary), because there are

inconsistencies in the record. In his affidavit (found at R. 616-22), Nour described the

main event on which he based his claims for relief from removal as occurring “not until

October 2005, when [he] was 21 and had graduated from high school.” R. 617. 

Specifically, he averred that soldiers, including an important general, arrived in the

middle of the night some time in October to arrest his father for allegedly engaging in

revolutionary activities. They broke down the door to the family compound and beat his

father with their weapons without saying a word. As the eldest son, he stepped in to try to

help his father, and a couple of the solders pushed him away, kicked him, and dragged

him hard enough across a bumpy cement floor to leave scars. Nour yelled curses as the

soldiers took his father to the general’s waiting Land Cruiser. When he heard the general

yell to the soldiers to arrest him, he took off running for several blocks and did not stop

until he reached the house of his father’s friend. His father’s friend explained that his

father supported a rebellion (the Mouvement pour la Democracie et la Justice a Tchad or

the MDJT). His friend hid him, sent him to get a visa, and helped him leave the country. 

3

In his supplemental affidavit, Nour stated that the arrest of his father occurred “after [he]
5

finished . . . high school in 2005.” R. 312. However, he testified at the hearing that the

soldiers came to his family’s compound on or about August 14, 2005. 

It cannot be said the difference in the dates is insignificant. Although Nour

testified about his ethnic Anakaza/Gourane background, his influential political family

(including ties to the king of the Anakaza people), and his father’s and other relatives’

past military service, he based his claim primarily on the incident that occurred at his

family’s compound. Yet, he reported the date as October in his first affidavit, did not

specify the date in the supplemental affidavit, and testified at the hearing that the event

occurred in August. (He also stated that he remained at his neighbor’s home from August

to October.) To explain the discrepancy, Nour stated that he was confused when he first

arrived in the United States alone. R. 261. However, his affidavit was not prepared until

August 2006, approximately 10 months after his arrival. R. 236. Moreover, in a clinical

interview in February 2007 preceding a medical examination to document his injuries, it

appears that Nour stated that he incurred the injuries from the soldiers in October 2005. 

R. 433. 

Another inconsistency in the record that put in doubt Nour’s account is his

description of his mother’s visits to his imprisoned father. In his affidavits, Nour stated

that his mother visited his imprisoned father once a week to bring him food. R. 315 &

621. However, he testified that his mother saw his father twice in 2005 and no other time

since his arrest. R. 184-85. Although Nour, who speaks at least some English, R. 260-
6

61, made an argument about the translation, R. 280, he stated at the start of the hearing

that the documents supporting his claim were accurate, R. 176. Nour also argues in his

brief that his statements about the visits was hearsay evidence based on telephone

conversations under difficult circumstances, Petitioner’s Brief 30; however, Nour did not

apprise the IJ of this explanation of the inconsistencies when he testified, R. 238-39.

The IJ and BIA also noted that Nour had submitted a fraudulent birth certificate to

Canadian authorities five months after he arrived in the United States in an effort to

circumvent the Safe Third Country rules. Although that document is unrelated to his

account, the IJ and the BIA concluded that its submission undermined Nour’s credibility. 

Although the IJ also discussed the issue of corroboration, he listed the individual

inconsistencies to arrive at the negative credibility finding. IJ’s Decision 10-11. The BIA

concluded that the adverse credibility finding was supported by the record without

considering the corroboration issue. Accordingly, because the inconsistencies provide

independent support for the adverse credibility finding, we do not consider the IJ’s

corroboration analysis (or the parties’ arguments relating to it). Contrary to the arguments

Nour advances, the inconsistencies identified have a basis in the record and are not so

minor as to not support the adverse credibility finding. Also, despite Nour’s claim to the

contrary, the IJ did not need to evaluate the facts regarding persecution on the assumption

that Nour was a credible witness. 

The adverse credibility finding, for which there is support in the record, means that
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Nour cannot make out an individualized claim of past or feared future persecution to

support his claims of asylum and withholding. The lack of credible testimony and

absence of other evidence also barred the CAT claim. For these reasons, we will deny the

petition for review.