2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-2011

M. H.B. v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1237

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1237

___________

M.H.B.,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent.

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A089-249-787)

Immigration Judge: Honorable Susan G. Roy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 9, 2011

Before: SCIRICA, SMITH and JORDAN, Circuit Judges.

(Filed : November 14, 2011)

___________

OPINION

___________

PER CURIAM

M.H.B.

1

 1 On April 15, 2011, we granted petitioner’s motion requesting that the Court refer 

petitions for review of an order of the Board of Immigration Appeals 

(BIA) affirming the decision of an Immigration Judge (IJ) denying asylum, withholding 
2

of removal, and relief under the Convention Against Torture (CAT). For the reasons 

detailed below, we will deny the petition for review.

M.H.B., a citizen of the Republic of Chad, was admitted to the United States in 

2007 as a nonimmigrant student. After attending university for a short time, he filed an 

application for asylum, withholding of removal, and CAT relief. The Department of 

Homeland Security charged him with being removable under section 237(a)(1)(C)(i) of 

the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(C)(i), as a nonimmigrant 

who had failed to comply with the conditions of his status. 

At a hearing before an IJ, M.H.B. testified in support of his claims. He stated that 

in Chad, he had worked as a computer technician. In October 2006, an employee of the 

RG — a police department with a reputation for brutality that provides security for the 

Chadian President — purchased two computers and hired M.H.B. to install them in the 

RG’s building. M.H.B. explained that the computers were to be installed in one room, 

while the servers were in a second room; located between those two rooms was a third 

room. M.H.B. decided to thread cables through that third room; however, when he 

entered the room, he saw four dead bodies on the floor. He quickly closed the door, 

completed his work, and left the building. Later in the week, he returned to collect his 

pay. The RG then detained him for nearly three weeks; during that time, he was tortured 

and interrogated about what he had seen while on the premises. Eventually, his uncle 

was able to bribe the RG to secure his freedom, and he fled to the United States. M.H.B.

 

to him and his relatives by only their initials. 
3

conceded removability, but argued that on the basis of those experiences, he was entitled 

to asylum, withholding of removal, and CAT relief. 

The IJ denied all relief to M.H.B.. Central to the IJ’s decision was her finding that 

M.H.B. was not a credible witness; she concluded that M.H.B. had provided inconsistent 

and implausible testimony. M.H.B. sought review from the BIA, which dismissed the 

appeal. The BIA found no clear error in the IJ’s credibility determination. M.H.B. then 

filed a timely petition for review in this Court. 

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the agency’s final 

order of removal. We review agency factual determinations, including credibility 

findings, under the substantial evidence standard, treating them as “conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B). Because M.H.B. filed his asylum application after May 11, 2005, the 

provisions of the REAL ID Act governing credibility determinations apply. See Chukwu 

v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). Prior to the implementation of the 

REAL ID Act, minor omissions or inconsistencies that did not go to the heart of an 

asylum applicant’s claim were insufficient to support adverse credibility determinations. 

See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under the REAL ID Act, 

meanwhile, a trier of fact may base a credibility determination on any inconsistencies, 

without regard to whether they relate to the heart of the alien’s claim. See

§ 1158(b)(1)(B)(iii).
4

We conclude that substantial evidence supports the agency’s decision to reject 

M.H.B.’s credibility. The BIA’s primary basis for this decision concerned an 

embellishment M.H.B. offered during his testimony about the harm he suffered on the 

fifth day of his detention. In describing the day in his affidavit, M.H.B. said only that 

two men came to his room and told him that they were convinced he was guilty. 

Meanwhile, during the hearing, M.H.B. said that on that day, he was beaten three 

separate times with a rubber whip. The circumstances of M.H.B.’s alleged confinement 

are central to his claim that he was persecuted and tortured in Chad, and this discrepancy 

supports the adverse credibility determination. See Xie v. Ashcroft, 359 F.3d 239, 243 

(3d Cir. 2004). While M.H.B. attempted to explain his differing accounts — he first 

stated only, “[a]ll I know is that it’s my story and I’m the one sitting her[e] today and 

that’s what I’m explaining what happened,” but then, on follow-up questioning by the IJ, 

suggested that the omission was the fault of his attorney — given that he began the 

hearing by swearing that his affidavit was true and correct, it was reasonable for the 

agency to find his explanation unpersuasive. See id. at 245-46.

The BIA relied on two additional inconsistencies in concluding that M.H.B. lacked 

credibility. First, in M.H.B.’s affidavit, he stated that on the fourth day of his detention, 

he was given food and water, while at his hearing, he testified that he was given no food 

or drink whatsoever on that day. Second, M.H.B. explained in his affidavit that upon 

arriving in the United States, he had communicated with his Uncle Ab. T. by email and 

his Uncle Am. T. by telephone. When his counsel asked him during the hearing whether 
5

he had had contact with any relatives, on the other hand, he first said, “nobody,” but then 

clarified that he had received only an email from Ab. T (without mentioning Am. T.).

2

Finally, the BIA deferred to the IJ’s finding that M.H.B.’s demeanor undermined 

his credibility. The IJ noted that on cross examination, M.H.B. became frustrated, 

hesitant, and argumentative. M.H.B. argues that his behavior was natural for a party 

under cross-examination. However, we accord substantial deference to the IJ’s first-hand 

observations, see Dia v. Ashcroft, 353 F.3d 228, 252 n.23 (3d Cir. 2003) (en banc), and 

are confident that she could distinguish between the run-of-the-mill discomfort 

 

These discrepancies, although minor, lend further support to the agency’s credibility 

finding. See 8 U.S.C. § 1158(b)(1)(B)(iii).

 2 M.H.B. claims that these statements were not inconsistent because they 

concerned different time periods: his affidavit listed his communications since arriving 

in the United States, while the question during the hearing asked about his 

communications since he had been detained. While the question at the hearing concerned 

a time period that began earlier, and would thus seem to call for his communications with 

both uncles, M.H.B. argues that because he had previously testified about how Am. T. 

had secured his freedom, he necessarily had been in contact with him, so he therefore 

must have interpreted the question to ask whether he had communicated with anyone 

besides Am T. However, there are problems with this interpretation. Most simply, it 

inserts words into the question that his counsel did not use. Further, this part of the 

examination concerned whether M.H.B. could safely communicate with his family after 

his escape from detention; when M.H.B. listed those communications that he had risked 

under the circumstances, he could have been expected to include his phone call with Am 

T. Therefore, although M.H.B.’s interpretation is plausible, we do not believe that the 

BIA’s contrary interpretation was unreasonable. See generally 8 U.S.C. § 1252(b)(4)(B) 

(providing that “administrative findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary”).
6

engendered by cross-examination and behavior evincing a lack of credibility, Singh-Kaur 

v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999).

Based on these findings, we conclude that substantial evidence supports the 

agency’s adverse credibility determination. See Lin v. Att’y Gen., 543 F.3d 114, 126 (3d 

Cir. 2008).3

 3 Because M.H.B.’s CAT claim was premised on the same allegations as his 

asylum and withholding of removal claims, this credibility determination is dispositive as 

to each of his claims. See, e.g., Guo v. Gonzales, 463 F.3d 109, 114 (2d Cir. 2006).

 M.H.B. argues that we should look also to the IJ’s opinion; according to 

M.H.B., some of the reasons the IJ gave for her credibility determination are not 

supported by the record. However, even if we assume that the IJ did make some errors, 

those do not affect the result of this case, because the findings discussed above are 

sufficient to sustain the adverse credibility finding. See Abdulrahman v. Ashcroft, 330 

F.3d 587, 597-99 (3d Cir. 2003); see also Husyev v. Mukasey, 528 F.3d 1172, 1183 n.6 

(9th Cir. 2008) (“Because we must accept the IJ’s adverse credibility finding if any of the 

supporting grounds proffered in the IJ’s decision is valid, we do not reach the IJ’s other 

grounds for discrediting [petitioner’s] testimony.” (internal citation omitted)). 

Accordingly, we will deny the petition for review.