Of the Tenth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-2780

DRINI BEBRI,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

 Howard, Baldock, and Selya, *

Circuit Judges.

William P. Joyce and Joyce & Associates P.C. on brief for

petitioner.

Gregory G. Katsas, Acting Assistant Attorney General, Anthony

W. Norwood, Senior Litigation Counsel, and Shahrzad Baghai, Trial

Attorney, on brief for respondent.

October 17, 2008
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SELYA, Circuit Judge. The petitioner, Drini Bebri, is an

Albanian national. He seeks judicial review of a final order of

the Board of Immigration Appeals (BIA) that affirmed a decision of

an immigration judge (IJ) denying his applications for asylum,

withholding of removal, and relief under the Convention Against

Torture (CAT). Because the petitioner failed to renew the

withholding of removal and CAT claims before the BIA, we treat

those claims as abandoned. See Makhoul v. Ashcroft, 387 F.3d 75,

80 (1st Cir. 2004). Consequently, our sole focus is the asylum

claim. After careful consideration of that claim, we deny the

petition.

The petitioner entered the United States illegally on

February 4, 2001. He immediately applied for asylum. An asylum

officer interviewed him and referred his case to the immigration

court.

After the petitioner amended his asylum application on

May 16, 2002, the IJ convened an evidentiary hearing. Following

that hearing, the IJ concluded that the petitioner's testimony was

not credible and refused to grant asylum. The IJ premised her

adverse credibility determination (and, hence, the denial of

asylum) on perceived inconsistencies in the petitioner's

presentation. We turn, then, to the petitioner's testimony. 

The petitioner testified that, in 1999, he was an officer

of the Democratic Party of Albania (PD). He started to receive
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unsigned letters threatening to kill him if he did not leave the

party. He remained steadfast.

The linchpin of his account was an incident that he said

occurred in October of 2000. As he described it, he was savagely

beaten by a group of masked men after working in a parliamentary

election. His assailants threatened further violence if he did not

stop toiling for the PD. The petitioner finally escaped from his

tormentors and, shortly thereafter, traveled to the Albanian

capital (Tirana). He obtained a counterfeit Italian passport

there. Using this bogus credential, he embarked on a lengthy

peregrination through Italy, Belgium, France, Spain, Venezuela, and

Colombia before flying into Miami. 

The IJ discerned serious discrepancies in this account.

The most glaring contradictions involved the linchpin event: the

circumstances of the supposed beating. In his initial asylum

application, the petitioner had described two incidents, not one.

He said that "approximately two-three days" after the election, he

was attacked by two men; that he was beaten so severely that he

needed to be hospitalized; and that, seven days later, he was again

confronted by the same men. In his amended asylum application,

however, he stated that he had experienced only one encounter — he

was beaten and threatened "at a rally." When testifying before the

IJ, the petitioner admitted that this was a lie; instead, he
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vouchsafed that the beating occurred while he was walking home from

the parliamentary election after the votes had been counted. 

This version itself cast further doubt on his veracity.

The petitioner testified that the beating lasted about twenty

minutes and did not require hospitalization. Later in the hearing,

however, he testified to leaving the polls before the votes were

counted and being beaten for "about three hours."

The petitioner had no plausible explanation for any of

these inconsistencies, and the IJ thought that they were telling.

She also questioned the depth of the petitioner's commitment (if

any) to the PD. And, finally, she observed that other parts of the

petitioner's story, though consistent, seemed far-fetched. In this

regard, she pointed to the petitioner's assertions that he had

walked for four to five hours after absorbing a three-hour beating;

that he had developed, virtually instantaneously and without

assistance, an effective escape route that allowed an alien with no

legitimate passport to enter the United States; and that he had

financed his entire sojourn, flying on commercial aircraft, for

under $3,500.

Based on these and similar findings, the IJ denied the

petitioner's application for asylum and ordered his removal. On

November 7, 2007, the BIA affirmed. This timely petition for

judicial review followed.
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Following a final order of removal, this court ordinarily

reviews the decision of the BIA. But where, as here, the BIA

adopts portions of the IJ's opinion, we review those portions of

the IJ's opinion as well. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st

Cir. 2004). Factual findings, including credibility

determinations, are reviewed under the substantial evidence

standard. Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007). Under

this deferential standard, contested findings will stand as long as

they are "supported by reasonable, substantial, and probative

evidence on the record considered as a whole." Id. (quoting INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)). Unless the evidence

"compels a contrary conclusion, the findings must be upheld." Id.

Asylum is available only to a refugee. A refugee is a

person who is unable or unwilling to return to his or her homeland

"because of persecution or well-founded fear of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).

It is an asylum-seeker's burden to prove that he or she is a

refugee within the statutory definition. See Jiang v. Gonzales,

474 F.3d 25, 30 (1st Cir. 2007).

To carry this burden, an alien's own testimony may

suffice. See Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.

2004). But an alien's testimony need not be taken at face value;

if the trier deems that testimony speculative or unworthy of
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credence, "it may be either disregarded or sharply discounted."

Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir. 2005). In that

way, "an adverse credibility determination can prove fatal" to an

asylum claim. Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007).

Either past persecution or a well-founded fear of future

persecution on account of a protected ground is a sine qua non for

asylum. 8 U.S.C. § 1101(a)(42)(A). In the case at hand, the

petitioner relies on a claim of past persecution to give rise to

a reasonable possibility that such persecution will recur if he is

repatriated. See Makhoul, 387 F.3d at 81. His showing of past

persecution hinges on the linchpin incident: the savage beating

that he claims was administered to punish him for his political

beliefs. Apart from the petitioner's unsupported allegations of

anonymous threats, that is the only tangible evidence of any past

persecution specific to him.

The IJ concluded that both the beating and the

petitioner's professed degree of political participation were

apocryphal. Accordingly, she denied his asylum application. The

petitioner assigns error in two respects. First, he asserts that

the IJ based her adverse credibility determination on matters that

were not central to the merits of the asylum claim. Second, he

argues that the IJ's adverse credibility determination is not

supported by the record as a whole. We address those plaints

sequentially.
 That is true here, but it may not be true in future cases. 1

The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 302, abolishes

the heart of the matter rule. See id. § 101; see also Cuko v.

Mukasey, 522 F.3d 32, 38 n.2 (1st Cir. 2008). Nevertheless, the

Act only applies to claims for asylum filed after May 11, 2005.

See REAL ID Act of 2005 § 101(h)(2). Because the petitioner filed

for asylum several years earlier, his case remains subject to the

rule.

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The premise on which the first claim of error rests — the

so-called "heart of the matter" rule — is theoretically sound.1

Under the heart of the matter rule, discrepancies relied upon by

the trier in making adverse credibility determinations must

"pertain to facts central to the merits of the alien's claims, not

merely to peripheral or trivial matters." Zheng v. Gonzales, 464

F.3d 60, 63 (1st Cir. 2006). Put another way, an adverse

credibility determination "cannot rest on trivia but must be based

on discrepancies that involved the heart of the asylum claim."

Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir. 1999)

(citation and internal quotation marks omitted).

The conclusion that the petitioner seeks to have us draw

from this premise, however, is not sound. He attempts to depict

the inconsistencies that permeated his shifting statements as minor

differences of time and place. But every case is different; and

here, that characterization is misleading. Although most of the

discrepancies concern the time, place, or manner of various details

incident to the alleged beating, they go to the heart of the

matter. We explain briefly.
 The context here includes the utter lack of any 2

corroboration (documentary or anecdotal) and the petitioner's

admission that he lied initially.

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The petitioner variously described the beating as having

taken place at a rally or during a stroll home from the polls. He

said, at different times, that it occurred both before and after

the votes were tallied. He estimated its duration on one occasion

as twenty minutes and on another as three hours. He vacillated as

to whether or not his injuries required hospitalization. And he

first described a pair of incidents, and then retracted to a single

incident.

Viewed collectively and in context, the petitioner's 2

wildly inconsistent statements about the timing, location,

duration, and intensity of the alleged beating would raise a

serious question in the mind of even the most sanguine listener as

to whether the petitioner was beaten at all. Such inconsistencies

surely can ground a finding that an alien's testimony is lacking in

veracity. See, e.g., Pan, 489 F.3d at 86. What we wrote in Pan is

equally apposite here: "Some of these inconsistencies, in

isolation, may seem like small potatoes. What counts, however, is

that their cumulative effect is great." Id.

The petitioner's fallback position is that the IJ's

adverse credibility determination (and, thus, the denial of asylum)

was not rooted in the record as a whole. This argument is fueled

by the petitioner's assertion that the IJ had an insufficient basis
 To cite one illustration, when asked whether he ever had 3

heard of the political party known as the "PDSH," the petitioner

responded in the negative. But the record contains a report of an

international organization verifying that the PDSH had won over a

third of all Albanian parliamentary seats in 1997 and again in

2001. 

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for concluding (i) that the petitioner was not as active in the PD

as he professed to be and (ii) that the petitioner's circuitous

route from Albania to the United States was pre-planned.

We set the stage. During the hearing, the petitioner,

who claimed to be an officer of the PD and active in its affairs,

was questioned about the political climate in Albania at the time

he was living there. He gave stumbling and inaccurate responses to

rudimentary questions, which led the IJ to conclude that he may 3

well have been prevaricating about his status as a political

activist. The petitioner points out that in order to have reached

this conclusion, the IJ had to assume that someone who was active

in politics at a given time would know more than the petitioner

did. The petitioner styles that assumption as representing nothing

more than the IJ's personal view and, therefore, as not entitled to

deference. See Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir.

1994) ("[D]eference is not due where findings and conclusions are

based on inferences or presumptions that . . . are merely personal

views of the immigration judge."). This argument lacks force.

We can find no fault with the IJ's assumption that, in

the normal course of events, someone who has worked for a number of
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years in a field will know and recall elementary facts about that

field. Unlike the premise used by the IJ in Cordero-Trejo, the

premise employed by the IJ in this case is grounded in common

sense, not in the IJ's esoteric knowledge or personal experience.

A trial judge has a right — indeed, a duty — to make common-sense

judgments. That duty is implicit in our system of justice. See

Griffin v. Burns, 570 F.2d 1065, 1078 (1st Cir. 1978) (stating that

"a federal judge . . . may and should do what common sense and

justice require"). It is equally implicit in an IJ's statutory

mandate to "decide whether an alien is removable from the United

States." 8 U.S.C. § 1229a(c)(1)(A). Given that the petitioner has

furnished no coherent reason as to why an officer of the PD would

have been so uninformed, the IJ's conclusion passes muster under

the substantial evidence standard.

This brings us to the matter of the itinerary. Referring

to the petitioner's hegira, the IJ observed:

The Court has seen many, many of these . . . I

find it simply incredulous [sic] that the

[petitioner] would simply come up with this

itinerary on his own. It is certainly wellknown that there is a great deal of human

trafficking from Albania and this certainly

fits the pattern. 

The perceived similarity of the petitioner's route to that

conventionally used by human-smuggling operations prompted the IJ

to conclude that the petitioner had in all likelihood contracted

with a smuggler to effect his entry into the United States. 
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The petitioner contends that the IJ improperly relied

upon her personal knowledge of frequently used human-trafficking

routes to conclude that the petitioner had been less than candid

about the spontaneity of his travels. There may be some merit to

this contention; the IJ needed more than unvarnished common sense

to reach this conclusion, and the record is barren of any pertinent

evidence of human-trafficking routes.

In the last analysis, we need not decide this point.

Even assuming, for argument's sake, that the IJ's views about the

origin of the petitioner's itinerary were misplaced, that subject

was peripheral to the merits of his asylum claim. Moreover, in the

overall scheme of things, it was only marginally relevant to his

credibility. The record reveals a plethora of other facts that

strongly support the IJ's adverse credibility determination.

Because that determination rested on substantial evidence in the

record as a whole (not including the origin of the petitioner's

itinerary), any error in this regard was harmless. See Harutyunyan

v. Gonzales, 421 F.3d 64, 70 (1st Cir. 2005) (explaining that, in

an immigration case, a harmless error is one "that would [not] have

made a dispositive difference in the outcome of the proceeding").

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

we conclude that the denial of asylum is supported by substantial

evidence in the record. Consequently, the order of removal must be

upheld.
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The petition for judicial review is denied.