Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 06-2785

AQUÍLES DE JESÚS RINCÓN-BEDOYA,

Petitioner,

v.

PETER D. KEISLER, ACTING UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS

Before

Lipez, Circuit Judge,

Selya, Senior Circuit Judge,

and Delgado-Colón,* District Judge. 

José A. Espinosa on brief for petitioner.

Douglas E. Ginsburg, Senior Litigation Counsel, Office of

Immigration Litigation, and Ari Nazarov, Trial Attorney, Office of

Immigration Litigation, on brief for respondent.

November 5, 2007

______________

*Of the District of Puerto Rico, sitting by designation.
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General 1

Peter D. Keisler has been substituted for former Attorney General

Alberto R. Gonzales as the respondent herein.

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Per Curiam. The petitioner, Aquíles de Jesús RincónBedoya, challenges a decision of the Board of Immigration Appeals

(BIA) denying his applications for withholding of removal and for

protection under the United Nations Convention Against Torture

(CAT). Discerning no error, we deny the petition for judicial

review and uphold the BIA's removal order. 1

The petitioner formerly taught physical education at the

Colegio Padre Majaleta, a school in his native Colombia. He left

his homeland on May 4, 2003, and entered the United States at

Miami, Florida, using forged travel documents. He was apprehended

immediately and, on May 8, the Immigration and Naturalization

Service (INS) charged him with being an alien who by fraud or

misrepresentation had sought to procure admission into the United

States in violation of section 212(a)(6)(C)(i) of the Immigration

and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(C)(i). The INS

also charged him, under section 212(a)(7)(A)(i)(I) of the INA, with

failing to possess a valid entry document at the time of his

admission. Id. § 1182(a)(7)(A)(i)(I).

As events unfolded, the petitioner made conflicting

statements concerning his reasons for fleeing Colombia. For

example, on May 4, 2003, he stated to an immigration officer that

he had departed because his father-in-law had been kidnaped and his
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wife had been threatened over the telephone. He voiced a belief

that he would be harmed if he returned to Colombia. Three days

later, however, he stated during a "credible fear" interview that

both he and his wife had been threatened, and that the threats to

his wife flowed from her relationship with him. He attributed

those threats to disparaging remarks that he purportedly had made

to his students about a local guerilla group.

During that interview, the petitioner mentioned that his

father-in-law had been kidnaped for political or ideological

reasons. In the same interview, he claimed, for the first time,

that he had been assaulted while in Colombia. He said that two men

on a motorcycle approached him, threw him to the ground, and

threatened his life. He again expressed a fear that he would be

killed if he returned to Colombia.

In due season, the authorities instituted removal

proceedings. The petitioner conceded removability and crossapplied for withholding of removal and protection under the CAT.

In an attached statement, he rehearsed the comments that he

supposedly had made to his students, recounted the menacing

telephone calls supposedly received by his wife, and again

described the motorcyclists' purported assault on his person. He

also revised his story about his father-in-law's kidnaping,

claiming that it was motivated both by economic reasons (because

his father-in-law might prove to be a munificent source of
In the course of his testimony, the petitioner stated that he 2

had belonged to various groups while in Colombia, including one

called the Sports Movement of Vienta. His testimony about that

group's political status was vague and, therefore, we treat that

membership as immaterial to his petition for judicial review. 

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"protection money") and by political animus (because his father-inlaw shared the petitioner's political views).

On July 1, 2005, a hearing was held before an immigration

judge (IJ). The petitioner testified that he had worked at a

school and had spoken out against the guerillas while addressing

his students. He also testified about his run-in with the men on

the motorcycle, recounting that they threatened him and used

obscenities. This time around, however, he admitted that they did

not harm him physically. When cross-questioned, he expressed

uncertainty about why he did not mention being threatened and

assaulted during his original immigration interview. Finally, he

conceded that his father-in-law's kidnaping and the threats made to

his wife had more to do with his father-in-law's business than with

anybody's politics. 

2

The petitioner's testimony was fuzzy as to how well he

was able to communicate with the immigration officer during his

initial interview. At first, he intimated that there was no

Spanish-language interpreter present and that the immigration

officer was not himself proficient in conversational Spanish.
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Moments later, however, he stated that he "believe[d]" that he and

the immigration officer "did get the communication straight." 

Following the hearing, the IJ ordered the petitioner's

removal and, concomitantly, denied his entreaties for withholding

of removal and protection under the CAT. Citing his inconsistent

statements and the utter absence of any independent corroboration,

the IJ found the petitioner not credible. Given that finding, the

petitioner was unable to carry his burden of proof on either of his

requests for relief.

The petitioner pursued an administrative appeal. On

November 29, 2006, the BIA affirmed the IJ's decision. It noted

that the petitioner had neither provided any convincing explanation

for his inconsistent statements nor furnished any corroborative

evidence. 

The petitioner then filed this timely petition for

judicial review. We have jurisdiction under 8 U.S.C. § 1252(b)(2).

We start with the standard of review. In the case at

hand, the BIA endorsed, and relied upon, the findings of the IJ,

while adding its own supporting views. In that sort of situation,

we review in tandem the decisions of both the IJ and the BIA. Ouk

v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006); Romilus v.

Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).

That review proceeds in line with the familiar

substantial evidence standard. Under that rubric, the BIA's
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decision must be upheld as long as it is "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). This is

a deferential standard; it allows a reviewing court to reverse the

BIA's determination of a relevant fact "only when the record

evidence would compel a reasonable factfinder to make a contrary

determination." Aguilar-Solís v. INS, 168 F.3d 565, 569 (1st Cir.

1999).

This case involves a subset of the substantial evidence

rule dealing with the credibility of witnesses. When the agency

has made an adverse credibility determination based on specific

findings, a reviewing court must treat that determination with

considerable respect. See Olujoke v. Gonzales, 411 F.3d 16, 21-22

(1st Cir. 2005); Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.

2004). Even so, the court's role is not reduced to that of a

rubber stamp. To be supportable, an adverse credibility

determination must be accompanied by particularized and persuasive

findings, expressly articulated or easily inferable from context,

sufficient to give it weight. Nikijuluw v. Gonzales, 427 F.3d 115,

121 (1st Cir. 2005) (explaining that "an IJ must offer a specific

and cogent rationale for disbelieving the alien"); El Moraghy v.

Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003) (noting that appellate

deference on credibility questions in immigration cases "is

expressly conditioned on support in the record, as evidenced by
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specific findings"). Moreover, an adverse credibility

determination cannot rest on trivia but, rather, must rest on

discrepancies that involve matters of consequence. Pan v.

Gonzales, 489 F.3d 80, 86 (1st Cir. 2007); Bojorques-Villanueva v.

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

An alien's credible testimony, standing alone, may be

sufficient to sustain his burden of proof even without

corroboration. See Pan, 489 F.3d at 86; see also 8 C.F.R. §

208.16(b). But when an IJ supportably determines that an alien's

testimony lacks veracity, that adverse credibility determination

divests the testimony of probative force and the testimony may,

therefore, be disregarded or discounted. See Pan, 489 F.3d at 86;

Nikijuluw, 427 F.3d at 121. Thus, an adverse credibility

determination may prove fatal to an alien's claim for withholding

of removal or other relief. Pan, 489 F.3d at 86; Stroni v.

Gonzales, 454 F.3d 82, 89 (1st Cir. 2006).

 Against this backdrop, we turn to the legal framework

surrounding this case. We start with withholding of removal. 

In order to establish eligibility for withholding of

removal, an alien has the burden of proving that it is more likely

than not that his life or freedom will be threatened were he

repatriated. See 8 C.F.R. § 208.16(b); see also Pan, 489 F.3d at

85-86. If the alien provides credible evidence that he has

suffered past persecution on one of five enumerated grounds, it may
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be presumed the he will be persecuted in the future should he

return to his homeland. See 8 C.F.R. § 208.16(b)(1)(i). The five

enumerated grounds are race, religion, nationality, membership in

a particular social group, and political opinion. See 8 U.S.C. §

1101(a)(42); 8 C.F.R. § 208.16(b)(2); see also Da Silva v.

Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).

To constitute persecution, "a person's experience must

rise above unpleasantness, harassment, and even basic suffering."

Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000); see Bocova v.

Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) (finding that two

incidents, occurring more than twenty-five months apart, were

insufficient "to suggest that the petitioner was systematically

targeted for abuse on account of his political beliefs"). In

short, a finding of persecution requires more than the happening of

one or two disagreeable events.

In the case at bar, the petitioner's primary argument is

that the IJ's evaluation of his credibility was incorrect. He

maintains that his testimony should have been credited and that it

sufficed to prove all the elements necessary to entitle him to

relief. In his view, his experience with the local guerilla group

qualifies as past persecution and, thus, creates the basis for a

well-founded fear of future persecution.

We disagree. The petitioner's argument assumes the

veracity of his testimony — testimony that both the IJ and the BIA
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found unworthy of credence. That adverse credibility determination

is fully supportable: the petitioner's statements about material

matters were markedly inconsistent at crucial points. Furthermore,

these inconsistencies were not adequately explained. The adverse

credibility determination was, therefore, unimpugnable. See, e.g.,

Mewengkang v. Gonzales, 486 F.3d 737, 740 (1st Cir. 2007); Dhima v.

Gonzales, 416 F.3d 92, 96 (1st Cir. 2005).

To be sure, the petitioner argues with considerable

fervor that the IJ and the BIA incorrectly appraised his

credibility. But this is sound and fury, signifying very little.

If an alien is to prevail under the substantial evidence standard,

"the administrative record, viewed in its entirety, must compel the

conclusion that he is [eligible for the requested relief]."

Aguilar-Solís, 168 F.3d at 569. In this instance, it is

transparently clear that, on whole-record review, the petitioner

cannot pass this daunting test.

The remainder of the case is child's play. Stripping the

petitioner's (incredible) testimony out of the equation, there is

simply no way that a reasonable adjudicator could find either past

persecution or a well-founded fear of future persecution. Thus,

the claim for withholding of removal founders.

The petitioner's CAT claim need not detain us. In order

to establish eligibility for protection under the CAT, an alien

must prove a likelihood that he will be tortured if returned to his
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country of origin. See Stroni, 454 F.3d at 89-90. He may

demonstrate this likelihood by providing evidence of past torture.

8 C.F.R. § 208.16(c)(3)(i).

If there is any evidence of torture here — a question we

do not reach — that evidence is washed away by the adverse

credibility determination. Since that determination must be

respected, see text supra, the CAT claim topples.

In this venue, the petitioner also advances a due process

claim. This claim is poorly developed but, as best we can tell, he

argues that he was unable to communicate clearly with his

interlocutors during at least one of his interviews and that this

inability caused the IJ to determine that his statements were

inconsistent. Building on this foundation, he maintains that the

BIA violated his due process rights by failing to take into

account, or to address, the IJ's reliance on these alleged

miscommunications.

This is wishful thinking. There is no mechanical

checklist for BIA decisions. For aught that appears here, the BIA

reviewed the whole of the record, applied the appropriate standard

of review, and satisfactorily explained its decision. No more was

exigible.

The petitioner's attempt to rely on Haoud v. Ashcroft,

350 F.3d 201 (1st Cir. 2003), is unavailing. There, the BIA

affirmed without opinion an IJ's decision to deny asylum. Id. at
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204. In doing so, the BIA disregarded a relevant precedent that

had been decided between the time of the IJ's ruling and the time

of its ruling, notwithstanding that the petitioner had brought the

precedent to the BIA's attention. Id. This court remanded,

holding that the BIA may not use the affirmance without opinion

procedure, 8 C.F.R. § 1003.1(e)(4), without giving due

consideration to its own precedents. Haoud, 350 F.3d at 207-08.

The petitioner's case is unlike Haoud in obvious ways.

Here, the BIA did not use the affirmance without opinion procedure

at all but, rather, wrote a reasoned opinion of its own. Moreover,

it did not overlook a controlling precedent. Consequently, Haoud

is inapposite and we therefore dismiss the petitioner's due process

claim as unfounded.

 We need go no further. For the reasons elucidated above,

we deny the petition for judicial review.

So Ordered.