2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
9-28-2004 

# K o sim v . Atty Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-2786

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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. Re c omme nde d C it at ion

" Kosim v . Att y Ge n U SA" (2004). 2004 D e cisio n s . P ape r 324. h tt p://d i g it alc ommon s .l a

w . vi l l a no va . e du/thir dc ir c uit_2004/324NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
NO. 03-2786
BR OT OS EN O KO SI M, Petitioner

v. JOHN ASHCROFT, Attorney General of the United States, Respondent
Petition for Revi ew of an Order of the United States Department of Justi ce Bo ard o f Imm igration Ap peals BIA No. A79-308-030
Submitte d Under Third Circ uit LAR 34.1(a)

September 27, 2004 Be for e: R EN DE LL , FU EN TE S, an d S M ITH , Circu it Judges
.

(Fil ed: Septe mber 28, 2004)
OPINI ON OF THE COURT
RE ND EL L, Circuit

Judge
. Brotosen o Ko sim, a native citizen of Indone sia, petitions for review of the B oard of I mmig ra ti on Ap pea ls ’ ( “BI A’s ”) dec is io n de ny in g hi s appl ic at io n fo r a sy lum,2

wit hho ldin g of

rem ova l and pro tectio n un der the C onv entio n A gain st T ortu re (“ CA T” ). The BIA affirm ed w ithout o pinion the fin ding of the Imm igration Judg e (“IJ” ) that K osim lacked cr edibil ity

based on incons ist ent st atements made in his testi mony and his writt en asylum a pplica tion state men t. In an a lternativ e ruling , the IJ co nclud ed tha t even if his testim ony w ere d eem ed c red ible, K osim had faile d to esta blish eligi bility fo r asylu m. Thus, the IJ st ated that it was unnecessar

y for him to deci de whether asylum was ap pr op r i at e a s a

ma t t er of di sc r eti on . We h av e j ur i sd i cti onun de r 8 U
. S. C. § 1 25 2. We wil l d en yKos im ’s pe titi on f orre vi ew. I. Kosim, an ethnic Chinese , was the s ole witne ss at hi s asy lum heari ng where he provided a narrat ive of hi s experi ences in Indonesia. From that nar rati ve, we extr act the following r elevant

facts. In August 1997, Kosim was employed as an assi stant supervi sor at a shoe f

actory in Jombang, Eas t Java. Because he was fluent in both Mandari n and Indone sian, the ow ner and m anager d epend ed on K osim to co mm unicate w ith the work ers who spoke onlyIndonesi an. Kosim te sti fied that the employe es went on strike when an employee w as fired for stealing . Accord ing to K osim, ma ny of the w orkers in the fa ctory were angry

with him becaus e they

felt he had not done enough t o get the fired e mployee rehir ed. While s tanding wit h a group of super

visors discuss ing the de mands of the striking wo rkers, K osim wa s allege dly pun ched in the c heek . As a result o f this inc ident, Kosim fled and did not return to work for several days.1 Bec ause the IJ re jected Ko sim’s a sylum ap plication base d on his ad verse credib ility

finding, and alt ernatively on the meri ts, the IJalso concluded that Kosim faile d to sat isfy the more exacting burden of proof requir ed for withhol ding of removalor prot ecti on under the CAT. We need not examine t he IJ’s decisi on regarding these alternat e forms of relief as Kosim does not challenge them before us.
3 On M ay 20, 19 98, K osim wa s robb ed an d bea ten at a n inters ection in Jak arta w hile ridi ng his motor cycl e. Kosim te sti fied that the beati ng was stopped by an Indonesi an Marine who inter

vened. As a conseque nce of the beating, Kosi m suffered a bl oody scrat ch to his right

chest for

which he did not

seek medicalatte ntion. Kosim did not report the inc ident to the poli ce. In June of 1998, Kosim left hi s job at the shoe fa ctory

and began working for Golden Sea Trading Company . Kosim tes tifi ed that his boss told him to take care of a situation invo lving e mp loyees w ho w ere su spec ted of chea ting the com pany. K osim contends t

hat when he did so, the workers became angry with him and ver

bally fought with him. In addition to t hese event s, Kosim al so testifie d that when he was about eleven y ear s of age , t he o th erst

ude nt s i n hi s c la ss di sc ri min at ed a gainst hi m andhi t h im. In his oral deci sion, the IJdenied Kosim’s asy lum appli cati on based on a fi nding that Kosi m’s testimony was not credibl e. 1 The IJ ma de an alterna tive fin ding that, eve n if the te sti mony had been cr edible , Kosim fai led to produce anyevidence t o meet his burden that he had suffered past persecu tion, or that he had a well-fou nded fear of fu ture perse cution , on ac coun t of his Ch inese e thnicity in In don esia. T he B IA su mm arily4

affirmed the IJ’s opinion p ursuant to 8 C .F.R. § 100 3.1(e)(4). On appeal, Kosim r aises two issues . Fir st, he urges t hat the IJ err ed in his finding of adverse credibil ity . Second, he contends t hat he dese rves a “favorable exer cise of discretion” in the fo rm of a grant of asylum . Notably, Kosim does no t challenge the IJ’s alterna te find ing tha t, on the merits, h e failed to pro duce evide nce to establish eligibility for asylum
. II. The Atto rney G enera l may gra nt asylum to any alien wh o is un able o r unw illing to retur n to his or her home country“because of per secuti on or a well- founded fear of persecution on account

of race, reli gion, national ity , membership in a particular soci al grou p or p olitical op inion.” 8 U .S.C. § 110 1(a)(4 2)(A ). The burd en to p rove eligibility for asylum li es with t

he appli cant, who must establ ish past persecution or a genuine fear of persecution that

a reasonabl e person i n the same ci rcumstance s would share. The applic ant’s own testi mony may be suffici ent to e stabl ish el igibi lit y for asy lum, as l ong as the te stim ony is cred ible. See 8 C.F.R . § 208.13(a ). Wh ere the BIA issues a sum mary affirma nce, w e revie w th e IJ’s d ecision as if it
we re th e de cisio n of

the B IA
. Dia v. Ashcroft , 353 F.3d 228, 247 (3d Cir. 2003) (en banc). Our r eview is l imit ed to ensuring that any findings made by

the IJare supported by sub stan tial ev iden ce. Id . We may rev erse th e IJ’s d ecision only if “a ny reaso nable adju dica tor [ wo uld ] be com pelle d to con clud e to th e co ntra ry.” 8 U .S.C . § 12 52( b)(4 )(B ).2 After chal lenging t he credi bili ty

determi nation in this case, Kosi m proceeds to urge us to conclud e that the IJ shou ld have ex ercised his discretion b y granting asylum. Ho wev er, an IJ may only do so after finding that an ali en is statut orily eligible for as ylum in the fi rst inst ance. Here, the IJfound that , on the merits , Kosim had not met his burde n and was theref ore inel igibl e. As we have indi cated, Kosim does not chal lenge this i n his pet iti on for revi ew. Therefore, we may not di sregar d the IJ ’s fi nding of ine ligibili ty and proceed to re view a dis creti ona ry dec ision that t he I J him self did not ma ke. 5 This Court “wil l not di sturb t he IJ’s credibi lit

y det erminat ion and fi ndings of fact if the y are ‘s upported by

reasonabl e, subs tanti al and probative e vidence on t he record c onsider ed as a whole.’ ” Tarrawall y v. Aschroft , 338 F.3d 180, 184 (3d Cir. 2003) (quot ing Bal as ubramanr imv. INS , 143 F.3d 157, 161 (3d Cir. 1998)). It i s clear that adverse credibi lit y det erminat ions of an I J based on spec ulati on or conjec ture, rather than on evid enc e in th e rec ord , are r eve rsibl e. Gao v. Aschroft , 299 F.3d 266, 272 (3d Cir. 200 2). III. The IJ found that Kosim’s t esti mony was not cr edible , st ating t hat the re were too many inc onsist encies wit h respect to import ant is sues and fact s between his asy lum applic ation and his t esti mony at t he heari ng. Kosim chal lenges t hat fi nding, arguing t

hat the IJ ’s det erminat ion was based on spe culat ion and was not s upported by substantial evidence. We disagree. 2 The record show s seve ral inco nsisten cies be twee n K osim ’s testim ony and his asylum application, as n oted by the IJ. We have stated tha t an IJ should b e careful be fore placi ng too much weight on a di screpancy between an asylum appli cati on and subsequent testim ony. Zubeda v. Ashcroft , 333 F.3d 463, 476-77 (3d Cir . 2003). However, we have6

stated that substantial evide nce sup ports a finding of adv erse credibility where the rec ord contai ns unexplained inconsi stenci es between the asy lum appli cant’s writt en stat ement and his te stim ony th at are ma teria l, sub stan tial, an d go to th e he art o f the cas e. See Xie v. Ashcroft , 359 F .3d 23 9 (3d Cir. 20 04). In this cas e, wh ile Ko sim d id ack now ledge his fail ure to ment ion cert ain event s found in hi s asy lum appli cati on, duri ng his di rect testim ony h e fa iled t o pr ovi de a ny pe rsua sive exp lana tion for the d iscre pan cies
. For example, Kosim test ifie d to the c ourt t hat in August

of 1997 he was an assistant supervisor in a shoe factory in Jombang w here the employees were both Chinese and I ndo nesian . Ko sim’s a pplica tion fo r asylum states tha t the w orke rs we re all Indonesi an. When questi oned on cross- examinati on about the inconsi stency , he coul d not offer an expl anati on. Kosim blamed any discr epancies between his s tate ments on “w hoev er acc om panie d him to his in terview with his first a ttorney.” T he IJ re jected this
ex pl an at io n a nd f

oun d i t impl au sibl e tha t, as a s upe rv is or , K os imwou ld not ha ve kno wn the ethnic makeup of the factor y, especia lly

when his ethni city

was at the he art of t

he claim ed p erse cutio n. Kosim further

test ifie d that during the May29, 1998 attack, he was saved byan Indo nesian M arine. H ow ever, K osim ’s app lication m ade n o m ention of this fact. Likewise, he told t

he court t

hat his motorcy cle was damaged and had t o be pushed to a friend’ s home, while his appl icat ion st ated the he used the damaged motorcy cle t o get away. In additi on, the government not ed on cross- examinati on discr epancies between7

Kosim’s tes timony

and asy lum appli cati on regarding the dis tance bet ween two Indonesian citi es. The gover

nment also noted that

Kosim’s appli cati on fail ed to menti on anyt hing with res pect t o eithe r of his jobs re lating to a workers ’ strike or a s ituation in which employe es were cheat ing the c ompany. Apparently , Kosim provi ded no explanation for these discrepancies. Finally, when questioned a bout why he neve r mentione d in his direct test imony an episode cont ained i n his appl icat ion where he was robbed at knife poi nt by

native Indo nesian s wh ile he w as driv ing in h is car, K osim stated th at he forgo t to me ntion it “bec ause he w as ne rvou s.” Th e IJ ag ain w as un conv inced that K osim wo uld fo rget to includ e suc h a trau matic even t. We are convinced t

hat the IJ’s credibi lit

y det erminat ion res ted upon substantia l evidence in the rec ord. Kosi m’s claim of persecut ion is based on his descriptions of specific eve nts that contain un explained discrepanc ies, omissions, and inconsistencies. In each case, w hen a sked to reco ncile th e testim onial in cons istencie s and om issions , Ko sim offered unsatisfactory

explanations. Acc or di ngly , w e wi llDENY the pe titi on f orre vi ew.