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
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# R a chid v . Att y Ge n U S A 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 . 02-3613

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w . v i l l a no va . e du/thir dc ir c uit_2004/860NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT No. 02-3613 BIL AL RACHI D, Petitioner
v. JO HN AS HC RO FT , ATTORNEY GEN ERAL OF THE UNITED STATES Ap peal f rom the B oard of Im migra tion A ppea ls (BIA No. A77-027-869) Argued: September

16, 2003 Be for e: M cK EE , SM ITH , and CO W EN , Circuit Judges
. (Fil ed: April7, 2004) TI MOTHY R. BLOCK, ESQ. (Argued) LAURA ADJ ANGBA, ESQ. Legal Servi ces of New Jersey 100 Metroplex Drive , Suit e 402 Edi so n, NJ 08818 Attorney for Appellant ROBERT D. McCALL UM, J R. , E SQ. Assist ant Attor

ney General MARK C. WALTERS , E SQ. Assist ant Direc tor WILL IAM C. MINI CK, ESQ. TERRIJ. SCADRON, ESQ. MA RY JAN E CAN DAU X (Argued) Senior Litigati on Counsel U.S. Department

of Justi ce Civil Divi sion Office of Immigration Lit igati on2

P.O. Box 878, Ben Frankl in Station Washington, DC 20044 Attorney s for Appell ees
OPI NION M cK EE , Circuit

Judge
. BilalRachid appeal s the BIA’s dec isi on affirmi ng the deni al of hi s appli cati ons for asy lum, withholding of r emoval and rel ief under the Conventi on Against Tort ure. For the
re as ons th atfol lo w, we wil l a ffirm. I. Rac hi d a rr iv edinth is co unt ry on May4, 199 8 wi th out an ytr av el doc ume nt s. He cl ai medto be an Alg er ian nati ona l and h e wa s s ee ki ng p ol itic al as y lum. App . at 1 69a . H e was immediately det ained by the INS and int erviewed. App. at 169a. During the intervie w, h e stated that he fled A lgeria b ecau se he wa s afra id he w ould be kille d afte r his bro ther s w ere k illed in th e m idd le of the n igh t by go ver nm ent s old iers. A pp.a t 17 2a, 1 74a
. The INS intervi ewed Rachid again on May 15. App. at 162a-67a . During t he second intervie w, R achid again stated th at he w as afr aid to g o bac k to A lgeria d ue to th e civil war there and his brot

hers’ s hooting. App. at 169a. He also res ponded “no” to ques tions about whether

he had ever been t

hreate ned, arr ested or

detai ned; had encount ered problems wit

h the poli ce or mil itar

y; or was ever mis treat ed, abused or tort ured. App. at 164a-65a. His case was then r eferred f or a hearing to see i f he quali fied for a sylum under1 8 U.S.C. § 1158(b)(1) (2004) states that I Js should grant applicants as ylum as a

matter of discr etion ba sed on whether t he appli cant prove s he/she meets the defini tion of “ref uge e” u nde r 8 U .S.C . § 11 01( a)(4 2)(A ) (20 04)
. See A bdille v . Ashc roft , 242 F.3d 477, 482 (3d Cir . 200 1). Section 1101(a)(42)(A) defines a refugee as: any per son who is outs ide any country of such pers on’s nat ionality . . . who is unabl e or unwill ing to ava il hi mself or her self of t he protec tion of t

hat country because of per secuti on or a well- founded fear of per secuti on on account of r ace, r eligi on, nat ionality , membershi p in a particular soci al group, or political opinion.
. . . 3 8 U.S.C. § 1158. 1 App. at 167a-68a
. On M ay 28, R achid appe ared p ro se a t his asylum hearin g and with drew his asy lum appli cati on. App. at 152a-53a. In September, he att empted to r einst ate hi s asy lum applic ation by

submitt ing a writ

ten asylum appli cati on. App. at 150a. The att empt met with no succes s. However, a year and a hal f lat er, hi s asy lum appli cati on was reinst ated with the he lp of counsel , and Rachid s ubmitt ed a second writ ten asylum appli cati on. App. at 133a-34a , 138a-39a. In that petition, he stat ed for the firs t ti me that t he Algerian police had accused hi m of belonging t o the Is lamic Sal vation Fr ont (“FI S”); t hat the police had
ar re ste d h im th re e ti m es ; an d t ha t th ey h ad jai led , be at, sta rv ed an d t or tu re d h im fo r d ays following hi s arre st. App. at 133a-34a . He request ed asy lum, withholding of r emoval, or withho lding of rem oval and relief under the U nited Na tions Con vention A gainst Torture (“CAT”). App. at 3a
. Rachid had his second hearing before an IJ in Jul y 2001. App. at 36a. At the hearin g, Ra chid te stified th at the A lgerian military po lice arre sted h im thre e time s in4

Feb ruary, Jun e and Au gust 1 995 , and th at the p olice b eat an d tortur ed him using electric shocks while he was detai ned. App. at 46a-57a. He al so testifie d that t he polic e inter rogated him regarding hi s connecti ons with FIS t he firs t and third ti mes he was arrested . Ap p. at 49 a, 56a . Rac hid cla imed that he did n ot tell his e ntire stor y during his firs t two INS int erviews because he was fri ghtened, and that he did not t

rust t he person who helped him complet e his fi rst wri tten a sylum application enough to t ell t hat pers on about his arres ts and t ortur e. App. at 66a, 77a-78a , 81a-82a. He also submit ted the affidavit of a doctor w ho exa mined h im, Dav id S. Kan g, M.D ., which stated that h is scars were clear ly

indicative of

tort ure. App. at 107a-10a. The IJ denie d Rachid any reli ef. He denied Rachi d asy lum because he found t hat Rac hi d’ s t es timon yre ga rd in g hi s arr es ts an d t orture was unb el ie vabl e. R. at 18a . H e fo und Rac hi d’ s e xc us es fo r h is fa ilur e t o me nt io n the se th in gs durin g hi s f ir st two inter views and in hi s fir st writ ten asylum appli cati on were implausible, concludi ng that “a t s ome point[Ra ch id ] d ec id edto emb el li sh hi s s to ry , p arti cu larlyth e a rr es ts . Wh at we have is, in my opinion, arecent fabric ation of

a stor y. ” R. at 17a. The IJ then f ound that Rachid’s cons ist ent st oryabout his brother s being ki lled di d not make out hi s asy lum claim , either. A pp. at 1 7a-1 8a. H e also r efus ed to g rant R achid with hold ing o f rem oval, stat ing that

withholding requir ed Rachid to meet a higher s tandard of

proof than gr anting asy lum did. R. at 18a- 19a. The Board of Immigrat ion Appeals ( BIA) affirmed t he IJ’s decisi on. It

agreed2 We have the author ity to revi ew the BIA’s decis ion to af firm an orde r of removal under 8 U.S.C. § 1252(b) (2004) . Because t he BIA adopted the I J’s deci sion, we review the I J’s a dm inistr ative find ing s of fac t for sub stan tial ev iden ce. See A bdu lai v. As hcro ft , 239 F.3d 542, 549 n. 2 (3d Cir. 2001). Such r eview requi res us t o treat the IJ ’s fi ndings as “conclusive unless any r easonable adjudic ator would be c ompelled t o conclude t o the contra ry.” 8 U.S .C. § 1 252 (b)(4)(B ); see a lso Lu kwa go v. A shcro ft , 329 F.3d 157, 167 (3d Cir. 2003) (int ernal c itation omitted). However, even under t his defer entia l st andard of review, an IJ must off

er “speci fic, cogent re asons for hi s or her di sbeli ef” when rejecting a witness ’s posi tive t esti mony because in his or her j udgment it lacks cr edibil ity

in order for his /her r eject ion of such t esti mony to be s upported by substantial e vidence. Sen ath iraja h v. I

NS , 157 F .3d 210, 21 6 (3d C ir. 1998) (internal citation om itted). 5 with the I J that

“contra dicti ons, addr essed i n detai l in hi s decis ion, were not resol ved by the appl icant , ei ther during the proceedings or on appeal. ” R. at 2a. Rachid ti mely f iled this petition, r equesti ng review of the BIA’s decis ion to af firm the order of r emoval aga in st hi m. II. Rac hid rais es thre e argu men ts befo re this co urt. 2 First, he argu es that th e IJ sho uld not h ave foun d his late r story abo ut bein g arres ted an d tortur ed un believ able b ecau se this Court has r ecognized t

hat an al ien’s fear can expl ain dif ferences be tween the storythe alien tells upon arrival an d the story he/she tells later. Second , he argues tha t the IJ shou ld hav e acc oun ted fo r the m edica l evide nce o f his to rture w hen th e IJ an alyzed h is asy lum clai m. Final ly , he argue s that the IJshould have gr anted hi s peti tions for withholding of removal gener ally or withhol ding of removalunder the Convent ion Agai nst Torture (CAT) . We addre ss th es e i ss ues se ri at im. A.6

Rachid states t

hat the IJ err ed in making an adve rse cr edibil ity determi nation ag ai ns t h im due to hi s f ai lure to men ti on h is arre st s and torture inhi s f ir st two INS inter views and in hi s fir st writ ten asylum appli cati on. He argues t hat thi s was error because Bala subr am anrim v. INS , 143 F.3d 157 ( 3d Cir. 1998) , holds that inconsist encies betw een th e story an alien in itially tells and th e story he /she tells la ter is no t enou gh to disc oun t the a lien’ s test imo ny. We disag ree. U pon his arriv al in the U.S ., Balas ubra man rim w as imm ediate ly detai ned and int erviewed i n English, a language i n which he did not have good competency . During t

he inte rview, he was as ked whether he had been arrest ed or tor tured and responded only t

hat his brother

had been arr ested. He subsequentl y des cribed mistr eatment at

the hands of hi s home country ’s government and a rebelgroup withi n the country i n a written asylum application, and testi fied to the same matters in his first hearing in front of an immigrati on judge. Id . at 158-60. T he IJ denied Balasub ramanrim ’s applic ation, finding t

he peti tioner ’s later s tate ments unbeli evable because he had tol d the officers at the airp ort th at he had nev er b een arre sted
. Id. at 160. The BIA affirmed. Id . at 161. Subsequentl y, this Court found that the I J and BIA placed undue r eliance on the airp ort in terv iew
. Id . at 162. We stated that an arriving alien who has suffered abuse durin g interro gation by gov ernm ent officials in his ho me c oun try may be re luctan t to
re ve al s uc h i nf

or m ati on du rin g t he fir st m ee tin g w ith go ve rn m en t o ff ici als in th is c ou nt ry.3 The IJ does not actual ly name Bala subr am anrim but st ates enough de tail s about the case that it is clear

he is r eferring to it : “[T]hi s Court i s mindful of t he Sri Lanka cas e . . . in which the 3 rd Circuit
. . . has advis ed Immigrat ion Judge’ s (si c) to be ve rycareful concerni ng airpor

t, or in thi s case ai rport

and seaport

stat ements. . . . [T]hat cas e involve d a Sri Lankan where t

he stat ement was taken i n English, not the l anguage of the respondent .” R. at

14a. 7 Id. at 163. We then held that “some inc onsist encies be tween the ai rport stat ement and [the pet iti oner’s] test imony bef ore the immigrati on judge [were] not suffici ent, standi ng alone, to support

the Board’s finding t

hat [the peti tioner ] was not cr edible .” Id . at 164. It is clear that there were m ore than just a fe w inco nsistencies betw een the airpo rt statement an d the petitioner’s testimon y in the case at hand , though, giving the IJ app ro pr iate gr oun ds to di st in gui sh Ra chi d’ s s it uatio n fr om Bala subr am anrim
. 3 The IJ’s decisi on notes t

hat, unlike Bal asubramanri m, Rachid repe ated that he had not been
arres ted or t ortur ed in res ponse to di rect que sti ons in a l engthie r int erview 10 day s after the initialairpor

t int erview and i n his fi rst wri tten a sylum application submit ted sever al months afte r the i niti al int erview. He al so notes t hat the cases can be dist inguis hed because Rachid’ s air

port i ntervi ew was conducted in a l anguage, Fre nch, i n which Rac hi d’ s c omp et en cy

is unc ont es te d. The se ar e s ig ni fi ca ntdi ff er en ce s b etwee n the two cases t hat al lowed the IJ

to dis tingui sh them and fi nd that Rachi d’s inc onsist ent te sti mony was unbelieva

ble. We will affi rm the IJ ’s rej ecti on of Rachid’s t esti mony that he was tort ured and arr ested. B.4 We noted in Fat in v. INS , 12 F.3d 1233, 1240 (3d Cir. 1993), t hat the BIA has sa idth atto rt

ur e can es tabl is h the p er se cutio n ne ces sa ry to re ceive a sy lum. 8 Rachid’s final argument is that the IJ’s decisi on should have addr essed the medical evidence bec ause it

establ ishes t

hat he was tor

tured, and his t ortur e establ ishes t hat he was p er se cut ed s uchth athe i s e li gi bl e fo r a sy lum. 4 The med ical ev idenc e at issu e is the a ffida vit of D avid S . Kan g, M .D., that R achid submitt ed to the IJ at

his sec ond hearing. In thi s affidavit, Dr. Kang concludes that Rachid had been a vi ctim of t ortur e because Rachi d’s expl anati ons of scar s and inj uries
were c onsistent w ith his physical findings. Th e IJ’s decision refe rs to Dr. K ang’s test imony once , st ating t hat Rachid was “examined by a Dr. Khan (sic ) who he spent an hou r and a half

with and to ld him the stor y as to w hat ha ppen ed to h im in A lgeria concerni ng the arr ests, the beat ing and the kill ing of his brother s and his f light into t he United Stat es. The doct or’s r eport was admit ted into evidence. ” R. at 10a. This court

has found that

an affidavi t repor

ting t hat an examination of an asy lum applic ant indi cated t ortur e is “powerfulevidence. ” Ob ianu ju Ez eagw una v. Ash croft , 301 F.3d 116, 132 ( 3d Cir. 2002) . Even such i mportant e vidence can not help Rachid her e, however. The IJ’ s decis ion not t o grant as ylum was based on his fi nding that the petitioner’ s lat er tes timony /appli cati on was inconsi stent with his earli er ones, and the doctor’ s opini on does not det ermine whether Rachid’s l ater a llegations of tort ure at t he hands of government

soldi ers were t

rue or fal se. Dr. Kang does not tr y t o pinpoint

when9

in ti me the tor

ture occ urred or

at whose hands i t happened; his t esti mony leaves open the possibi lit y t hat Rachid was t ortur ed this way but not under the c ircumst ances he described. Because t

he doctor’ s affidavit does not compel a diff

erent c onclusi on than the one th e IJ rea ched , we c an no t overtu rn the I J’s find ings th at the p etitioner wa s ineligib le for as y lum. C. Rachid als o argues t

hat the IJ shoul d have found him eli gible f or withhol ding of
remo val. H e states th at he m eets the criteria fo r with hold ing o f rem oval g enera lly because he has estab lished that he suffered pa st persecution an d will suffe r future pe rs ec ut io n du e t o hi s p ol itic al opini on, an d f orwit hho ld in g of

re mov al und er

CAT because he established that he w as tortured. He asked this C ourt to reverse the IJ’s decisio n and enter a n ord er pro hibiting his rem oval. The IJ expla ins hi s decis ion to deny withholding of removal, albei t bri efly . After stati ng that Rachid was not eligible for asy lum, he states:

Sin ce w ithh old ing of r em ova l is a h igh er sta nda rd, I m ust d eny th at, as we ll. Since I do not

belie ve his t esti mony concer ning his arres ts, the mere fac t that he ma y have been in the cross fire, an inn ocent fam ily in a civil wa r, does not lea d m e to be lieve th at he w ould be tortu red if h e return ed to Alg eria. H e has not co nvin ced m e that th e gov ernm ent of Alg eria or its age nts w oul d be inter este d in him sinc e I h ave not fou nd h im c red ible. I will de ny that ap plication as w ell. R. at 18a- 19a. In s ummary, the IJdenies wit hholding of r emoval because he finds t hat Rachid can not be eligible for s uch reli ef if Rachid c ould not meet the lower s tandard f

or10

as ylu m eli gi bi lity. We agree with the ALJ that Rachid coul d not meet t he standards for withholding of r emov al orCAT re li ef i f he di d no t me etth e crit er iafor as y lum. T o be gr ant ed a sy lum, a peti tioner

must prove onl y t

hat he/ she has a well -founded fear of persecution on account of race, reli gion, national ity , membershi p in a particular soci al group, or poli tica l opini on. 8 U.S.C. § 1158. Such a fear of persecution can be well-founded even w hen there is less than a 50 per cen t cha nce of th e oc cur ren ce ta kin g pl ace . Li n v. INS , 238 F.3d 239, 244 (3d Cir. 200 1). But he m ust prove tha t he faces a “ clear probab ility of harm ” upon return to h is ho me cou ntry to q ualif y for w ithh old ing of d epo rtatio n, Chan g v. INS , 119 F.3d 1055, 1065-66 ( 3d Cir. 1997) ; thi s standard requi res hi m to establ ish at least a 51 percent chance of harm. Similarly , the standar d to est ablis h eligibili ty for CAT relief r equires Rach id to prove b y a preponde rance of the eviden ce that he w ould be su bject to torture upo n retur n to h is hom e cou ntry. 8 C.F .R. § 2 08.16 (c) (20 04). B ecau se it is mo re difficult to estab lish eligib ility for with hold ing o f rem oval g enera lly and C AT relief th an to establ ish el igibi lit

y for asy lum, no one i neligible for a sylum could possibly be eli gible f

or with hold ing o f rem oval u nder either tes t. IV. For th e abo ve rea sons , we w ill affirm the distric t court.