Be rete does not appe al the BIA’s denial of withholding of remova l a nd protec tion under the 1 Convention Ag ainst Torture.

NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 09a0170n.06 Filed: Mar ch 2, 2009 No. 08-3864 U N IT E D S T A T E S C O U R T O F A P P E A LS F O R T H E S IX T H C IR C U IT I B R AH I M B E R E TE Petitioner-Appellant , On Petition For Review v. Fr om an Orde r of the B oa rd of I mmi g ratio n App e a ls E RI C H. H OL DER , J R . Respondent-

Appellee

.

______________________________ B e fo re : K EN

NE DY , N ORRI S, a

nd CO L E, Cir c uit

Judg e s. KENN EDY, J . I

brahim B ere te petitions for revie w of the B oard of I mmigration Appeal’s (B I A) orde r re moving him to Sierra L eone. The I mmigration J udg e (I J ) conc luded that B ere te was not cre dible, so that he wa s ineligible for asylum a nd withholding of remova l unde r the I mmigration and Nationality

Act, 8 U.S.C. § 1101 et seq. , and prote ction under the Convention Ag ainst Torture. Wit h respe ct to asylum and withholding of r emoval, the I J also conc luded that the g overnme n t’s sh ow ingof c ha

ng e d c ountr

y c on dit ion s su ff

ic e d to re bu t any

we ll- fo un de d f

e ar o f p e rs e c uti on

B e re te

m ay h a v e h a d , s u

p p o s i n g t h a t i t h a d b e e n e s t a b l i s h e d

. B e r e t e a

p p e a l e d t h e d e c i s i o nw h i c h t h e B IA dis mis se d a ft e r a g re e ingwi th t he I J’s c re dib ili ty

fi nd ing . B e re te the n fil e d a pet iti on fo r r e vie w i n this court of the B I A’s denia l of asylum. For the following rea sons, we deny the petition. 1 BACK GR OUNDBe rete ’s re moval hear ing was held before an I J on September 18, 2006. The re, he testified

to the following which provide s the basis for his cla im of past perse cution. B e re te ’s fathe r w a s in

the dia mon d b us ine ss i n Sie rr a L e on e . B e re te ha d tr a ve le d w ithhis fathe r to Be lgium and F ranc e where his fathe r sold diamonds. As a succ essful businessman, B ere te’s fathe r was f

ri e nd ly wi th t he po lic e c hie f a s w e ll a s o the r h ig h r ank ingof fi c ia ls. Many

of the se officia ls would come to Be rete ’s home and his fathe r’s store. His father was known to support the g overnme nt, run by

Momoh, as part of All People’s Cong ress (A PC) rule. His family was prominent g ener ally , beca

use many people would visit their store. At the time of the Apr il 11, 2000 incident upon which B ere te re lies to establish past persec ution, Ber ete lived in Ha ng a, a subur

b of Ke nema, in Sierra L eone, w ith his father, his mother, his father’s othe r wife , his sibli ng s, an d his own wife and c h il dr e n . T h e s to r e w a s a d ja c e n t to B e r e te ’ s f

a mi ly ’ s h o me . Wo r

k e r s e mp lo y e d

by Be rete ’s fathe r w e re a lso a t th e ho us e on the da y of the inc ide nt. On April 11, 2000, B ere te’s father ran hom e from mosque, told the family that he had he ard g un sh ots , a

nd de te rm ine d tha t the fa

mil y ne e de d to fle e the c ity . B e re te ’s e nti re fa mil y sp lit up int o three car s. Be rete was in a c ar w ith his m ot h er , h i s fathe r, and his father’s othe r wife . As they attempted to spee d awa

y , rebe ls s h o t o u t t h e tires of their c ar. The car flipped over . The c ar’ s steeringwhee l crushed B ere te’s father’s c hest. Be rete sustained a br oken leg

. Be rete ’s father’s w ives pulled Be rete ’s fathe r from the wre ckag e, but he died. Mea nwhile, the oth e r t wo ve hic le s c on ta ini ngoth e r m e mbe rs of B e re te ’s fa

mil y sto pp e d n e arb y . A t so me po int , Be rete ’s 17-y ear -old sister g ot out of the car an d wa s s t an ding by the roa dside, when two L and R o v e r s p u l l e d

u p a l o n g s i d e a

n d k i dn a p e d B e r e t e ’ s s i s t e r

a g a i n s tt h e p r o t e s t a t i o n s o f t h e f a m i l y. Be rete ’s mother decided that she needed a cloth to cover up Be rete ’s father’s body . Be rete ’s mother

se nt t he ir dr ive r b a c k to the ho us e to g e t th e c lot h. Th e dr ive r r e tr ie ve d th e c lot h, and up on hisreturn, he informed the f amily that rebe ls had broken into th e h o m e, we re looting the plac e and setting it abla ze, and beating the w orker s around the pla ce. B e r e t e m an a g e d

t o m a k e c o n t a c tw i t h t h e R e d C r o s s w h i c h t o o k

h i m an d h i s f a m i l y, including his mother, his mother’ s co-spouse , his wife, his childre n, and his siblings, to Port L oko in Sierra L eone a

bout 200 miles from his hometown. They stay ed there i n a camp for a fewwee ks

un til the y we re a tta c ke d b y pe rs on s wh o kn e w wh o the ir fa the r w a s. Th e e nti re fa

mil y de c ide d to leave Port L oko and traveled to nearby Guinea. F rom Guinea , Be rete boarde d a boat to the United State s. Prior

to h is te s ti mo n y

a t t h e r e mo v a l h e ar in g , B e r e te h a d f il e d , in A p r il o f 2 0 0 1 , anI

- 589 application for

asylum and withholding of r emoval. On that a pplication, he stated: On Ap ri l/1 1/0 0 r

uth le ss r e be l s a

tt a c k e d my f a m i l y c omp ound

and ma lic iou sly killed my fathe r and the n they

brea k into my room and beat me and leave me ly ing down i n my own bl ood with my rig ht leg broken. The thugs t hen raided our boutique that me and my

fathe r use to operate and took eve ry thing that we owned a

nd lived fo r. Aft er thi s d e va statio n, Iha d to le a ve my ho me tow n o f H ang ha

and we nt t o Gu ine a wh e re Ista

y e d and heal ed my

br ok e n le g and

ru ptu re d r ibs . I

wi ll a lso pr ov ide y ou

wi th a pic tur e of

my ri g ht l e g wh ic h w a s b ro ke n d ur ingthe inc ide nt. Af te r a ll the se inc ide nts the re st o f my fam ily ’s wh e re a bo ut i s unk

no wn to me . I t is be lie ve d th a t th e re be ls t oo k a lon g wi th t he m no t on ly

mon e y bu t tw o o f my sis te rs and

tw o o f m y

br oth e rs , b e y on d th e ir

wi lls

. Th e y c ou ld have take n me a s w e ll bu t be c a us e I wa s se ve re ly be a te n, the y tho ug ht Iwa s g oin g to d ie . A t th is p oin t in my life, I will not even wish my

dead body

be sent to Sierra

L eone. About the re ason for

his past mist reatment, Be rete wrote: Probably simply , beca

use we owned a

proinent business i n t h e city of Hong ha and they neede d to loot our store and take our money to support their rebe llious group. Be rete signe d his na

me on the application as both the applicant a nd the pre pare r of the a

pplication. An asylum officer

interviewe d Be re t e with re g ard to his application on October 18, 2001. I n his refe rra l assessment, the asy lum officer

wrote:Applicant stated that he and his f ather owned a g ener al store in the town of Hang a. Applicant stated that on April 20, 2000, unknown m en, whom the a pplicant assumed we re re be ls, a tta c ke d th e vil la g e and loo te d th e ir

sto re . App lic ant s ta te d th a t hi s family attempted to escape, but we re stopped by the re bels. Applicant stated that the rebe ls kill ed his fathe r and beat him. Applicant st ated that he suff ere d a broke n leg as a r esult of the beating. Applica nt stated that aft er the attack, E COMOG forc es enter ed t he ar ea a

nd transporte d him to a Red Cross facility in Guinea. Applica

nt stated that he r emained in Guine a for 3 month s u ntil he was able to make arr ang e me nts to c ome to t he Un ite d St a te s.

Notes take n by

the asylum officer

at that time also bec ame pa rt of the r ec o rd

. I n his notes, the asylum officer

wrote: Applicant stated on April 11, 2000 unidentified rebe ls c ame to his s t o re / h o m e and stole all their g oods 6 AM and asked applicant’ s fathe r for money . Applicant stated his f amily tried to e scape in a car but the rebe ls be g an shooting . Applicant’s f ather was killed. Applica

nt was seve rely beate n and left for dea d. Applicant’s wif e sisters and brothe rs wer e take n. The a pplicant stated the same day he wa s rescued by ECOMOG troops and tra nsported to the [unreada

ble] on the border of

Guinea. He a lso noted the following brief que stion and answer exchang e: Q: Why do y ou thi nk y ou we re a tta c ke d b y

un ide nti fi e d r e be ls? A: Be cause we we re w ealthy Manding os. All [unrea dable] Afric a we are . Singled ou t. Q: What do y ou think would happen to y ou if y ou returne d to Sierra L eone? A: Iwill be killed. Q: Why would any one wa

nt to kill y ou? A : B e c a u s e m y f a t h e r w a s w e a l t h y. Q: So y ou are not wealthy any more? A: Th a t is c or

re c t. Ba sed on this conver sation with Ber ete, the a sy lum officer conclude d that Be rete was not entitled to asy lum because the re bels did not persec ute him on acc ount of a prote cted c hara cter istic. I n Aug ust of 2002, Be rete filed anothe r I -5 8 9 application for asy lum and withholding of

re mov a l, b ut t

his tim e the fo rm wa s pre pa re d by an atto rn e y . H e e xpla ine d th e re a so n f or his pa st mistreatment identically

to the first I -589 for

m. The story

he detailed descr ibing the way he suff ere d

a br ok e n le g wa s n e arl y

ide nti c a l.On September 18, 2006, Be rete appea

red befor e an I J in a remova l pr ocee ding and g ave the sto ry de ta ile d a

bo ve in wh ic h his le g wa s bro ke n as a r e su lt o f t he c ar f lip pin g ov e r, no t a s a

re su lt of a be ating

. The I J asked Be rete to e x plain the discrepa ncies betwee n the two stories, and he stated that a lay man pre pare d t h e first applica tion and the sec ond application wa s based on the f irst. He explained further

that the beatings de scribed in the first I -589 application did not happen to him. The be a tin gs di d h a

pp e n, bu t th e y

ha pp e ne d to the wo rk e rs and oth e r p e op le a t and

aro un d th e fa

mil y compound. He sug g ested that his sig nals g ot crossed w ith the lay person wh o prepa

red the

a pp li cat io n who wa s n e ith e r a sk ill e d tr ans la tor

no r a tr a ine d atto rn e y . H e sa id t hat th e same lay person who pr ep ar ed t h e first application also translated be tween him and the asylum officer

. Be rete testified that he never rea d the first I -589 application, and simply g ave it to the lawy er w ho prepa red the second I -589 application by copying the first without further c onsultation with Bere te. Be cause of the inconsistenc y , the I J found Be rete ’s testimony not to be cr edible. He stated the following as par

t of his oral dec ision: Wit h respe ct to cre dibilit y , it is t he opinion of the Court that the res p o n d ent’s testimony in Court today

is not cre dible. Ibase my cre dibilit y

deter mination on the fa c t th a t th e re sp on de nt on a ke y iss ue in thi s ca se pr e se nte d in c on sis te nt s ta te me nts

. The re spondent in both of his I -589' s and the second one was prepar ed by a lawy er stated that his f

ather was killed and his leg was broke n as a r esult of a be ating when these individuals attacked h i s h o use. He also stated to the Asylum Office r that he had suff ere d a broke n leg as a r esult of beatings whe n the re bels killed his father a t the ho us e . H e did

no t me nti on

that hi s le g wa s bro ke n as a re su lt o f t he a uto mob ile rolling ove r. I t was in Court testimony he testified that he was fle eing with his father, his m o th e r , h is f

a th e r ’ s s e c o n d

w if e w h e nth e ti r e w a s s h o t o u t a n d th e c ar f li p ped ov e r. Hi s fa

the r g ot an inj ur

y to his c he st ba se d up on the ste e ri ngwh e e l hi tti nghis c he st a nd that his leg wa s in

jur e d d ur ingthat in c ide nt. Th os e we re ke y ma tte rs wi th re spect to th e re sp on de nt’ s c la im. I t is the op ini on of the Cou rt ba se d o n th os e inconsistencies that the r espondent’s te stimony is not credible. The I J continued to state: I f some Appe llate body should reve rse my cre dibilit y deter mination, it would s till be the opinion of the Court that the re spondent has fa iled to meet h i s b u rden to provethat he has a well-founde d fea

r of perse cution. Even if the r espondent’s te stimony is to be believed that these individuals who, althoug h he neve r identified t h em as rebe ls but they

wer e people opposed to the gover nment, attacke d his home, this was a re su lt o f a

c ivi l w ar i n Si e rr a L e on e wh ic h is wel l doc ume nte d. An d g e ne ra l ha rs h conditions shared by

many others in a country and the harm arising out of c ivil st rife, does not amount to perse cution within the m eaning of the law . Iwill note today that the re spondent initially

to the Ass es s m en t Officer state d that his father owned a g ener al store. In Court today , he testified his father wa s a prominent diamond dealer in which he ha d frie n d s wh o wer e hig h profile individuals in the Momoh governme nt. I t is the opinion of the Court that ag ain that is an inconsistency and there is no corrobor ation that the fa t h er was, in fac t, a prominent diamond dea ler. Also, Ihave ta

ken into consideration the curre nt S tate De partment Repor t which state s th a t Sie rr a

L e on e is a

c on sti tut ion a l r e pu

bli c wi th a

dir e c tly e le c te d p re sid e nt, a un ic a me ra l le g isl a tur e . In 2 00 2, the de va statin g 11 y e ar c ivi l c onfl ict off ic ia lly ended a nd the go v er n m en t backe d by a lar g e United Nations peace keepingforc e asser ted control ove r t he whole country . Ba sed upon that Report, it is the opinion of the Court that the Go v er n m en t has met their bur den to prove there are chang ed circ umstance sin Sierra L eone and that the civil w ar ha s ended. A nd, there fore , the responde nt would have no f ear of per secution. T h e B I A a ff

i rm edt h e d ec i s i o n , wr i t i n g: We find no clea

r error in the I mmigration J udg e’s finding that the respondent is not c re dib le . T he I mmi g ratio n Jud g e su pp or te d h is a dv e rs e c re dib ili ty fi nd ingwi th sp e c if ic re a so ns ba se d on the re c or d that g o to the he art of the re sp on de nt’ s c la ims

. I n his decision, the I mmigration J u d ge identified a material inconsistenc y betwee n the re spondent’s testimony and his Application for

Asy lum and for Withholding of Removal (F orm I -589), a nd his supple m en t al For m I -589. Specific ally , the res p o n d en t t es tified that on April 11, 2000, his leg was injured a nd his father

was killed when their c ar f

li p p ed o ver w hile they

wer e fle eing from re bels, but he indicated in both of his F orm I -589s that his le g was injured as a result of a

beating by the re bels and that the r ebels killed his fathe r at t h eir house. We f ind the responde nt’s explanation that his orig inal For m I -589 wa s filled out by

someone who was not an attorney is insufficient, espe cially g iven that his supplemental For m I -589 w a s f il le d o u t b y an a tt o r

n e y an d it c o n ta in s th e s a me in f o r mati o n . Moreove r, contra ry to the responde nt’s asser

tion on appea l, w e find that this inconsistenc y is not mino r an d th a t it g o e s to th e h e art o f h is c la im s . B e c a u s e w e a g r e e with the I mmigration J udg e’s a dverse cre dibilit y finding for the a bovementioned r easons, we need no t a d dr e s s th e o th e r in c o n s is te n c ie s f

o u n d b y th e I mm ig r a ti o nJu d g e o r the responde nt’s related ar g uments on appea l. Additionally , beca use we ag ree with the I mmigration J udg e’s a dverse cre dibilit y finding for the aboveme ntioned rea sons, we need not r eac h his findings re g arding the respondent’s failure t o meet his burden of pr oo f, e ve n if

he te sti fi e d cr e dib ly , or the re sp on de nt’ s re la te d ar g ume nts on a pp e a l. AN AL YSI SA succ essful asy lum a pplication require s two showing s: ( 1) that the pe titioner is a ref ug ee pursuant to 8 U.S.C. § 1101 (b )(42) ; and (2) that the petitioner merits a f avora ble exercise of discretion by the I J

. Mapouya v . Gonzales , 487 F.3d 396, 406 ( 6th Cir. 2007). The applica nt has
t h e b u r d e nt o s h o w t h a t h e i s a r e f u g e e , 8 U

. S

. C

. § 1 1 5 8 ( b ) ( 1 ) ( B ) , m e e t i n g a “ r e a s o n a b l e p o s s i b i l i t y” standard, Liti v. Gonzales , 411 F.3d 631, 637 ( 6th Cir. 2 0 0 5 ), wh i ch he ca n sustain without

corr oboration if the f

act finder determines t hat he is cre dible, 8 C.F.R. § 208.13(a) . Refug ee status require s the applicant to de monstrate either past perse cution or a well-founde d fe ar o f future perse cution, 8 C.F.R. § 208.13(b), gr ounded in either “rac e, re ligion, nationality , membership in a particula r social g roup, or political opinion,” Zoarab v. Mukase y , 524 F.3d 777, 780 ( 6th Cir. 2008) (citing 8 U.S.C. § 1101(a)(42) ). I f the a pplicant est ab l i s h es p ast perse cution, he is entitled to the presumption of a w ell-founde d fea r of f uture pe rsec utio n wh i ch t h e gover nment may

rebut by showing chang ed countr

y conditions. Mapouya , 487 F.3d at 412 (citing 8 C.F.R. § 208.13(b)( 1)). “I f the g overnme nt rebuts the pre sumption, the applicant must de monstrate a well-founde d fea r of future perse cution notwithstanding the c hang ed countr y conditions.” Id. (q u o t i n g Liti , 411 F.3d at 639) (inter

nal quotation marks omitted). Be rete larg ely

only has his own testimony

as to his persec ution in S ierra L eone, a nd there fore , his c re dib ili ty

take s cen ter sta g e be c a

us e his te sti mony

su ff ic e s to sh owpe rs e c uti on

on ly if he is

cr edible. Ndrecaj v. M ukasey , 5 2 2 F

. 3 d 6 6 7 , 6 7 4 ( 6 th Ci r . 2 0 0 8 ) ( c it in g 8 U

. S.C. § 1158(b)( 1)(B )(ii)). The I J found that B ere te was not c redible, a nd the B I A did not find clea r er ror in that deter

mination. Moreove r, the I J found cha ng ed countr

y conditions in S ierra

L eone suc h that the g ov e rnme nt r e butte d the pr e su mpt ion of futur e pe rs e c uti on

a ssumin g B e re te ’s c re dib ili ty on his past perse cution. The B I A did not rea ch this issue beca use it determined tha t Be rete ’s lack ofcre dibi l i t y suffice d to dismi ss his appeal. The BIA also found B ere te’s explanation for the

inconsistencies unpe rsuasive. Whe n “ the B I A s umm ari ly a ff ir ms a po rt ion of the deci si on of

an I J with ou t an in -d e pth discussion of the re leva n t i s sues, we r eview the I J ’s dec ision as the final ag ency decision.” Kaba v. Muk asey , 5 4 6 F. 3 d 7 4 1 , 7 4 7 (6 t h C i r. 2 0 0 8 ) ( qu o t i n g De nk o v . I NS , 351 F.3d 717, 726 (6th Cir. 20 03 )) (i nt ern a l qu otatio n ma rk s o mit te d) . A s h e re , w he n th e B I A a do pts an I J’s d e c isi on wh ile adding its own rea soning and lay er of revie w, we revie w both the I J decision and BI A d ec i s i o n. See Gilaj v. Gonzales , 408 F.3d 275, 282- 83 (6th Cir. 2005). We reviewfinding s of fa ct under t h e s u bstantial evidenc e standa rd. Id. Cr e dib ili ty

is a finding of fa ct. Sy lla v . I

NS , 3 88 F .3 d 9 24 , 9 25 (6 th Ci r. 20 04 ). Cha ng e d c ountr

y c on dit ion s is a questio n of fa ct as we ll. Mapouya , 4 8 7 F. 3 d at 4 1 8 (c i t i n g Liti , 411 F.3d at 639). Substantial evidenc e re quires the f

indings of f

act to “be supported by

rea sonable, s u b s t an t i al evidenc e in the

rec ord.” Sh ah v . I

NS , 22 0 F .3 d 10 62 , 10 67 (9 th Cir

. 20 00 ). Th e sta nd ard is de fe re nti a l, bu t it s til l

re qu ir e s c on c lus ion s to be sup po rt e d by sp e c if ic re a so ns that go to t

he he art of the a pp lic ant’ s c la im. Kaba , 5 4 6 F. 3 d at 7 4 8 -4 9 (c i t i n g Sy lla , 388 F.3d at 925-26) (inter nal quotation marks omitted). The law of the Circuit is well-established that “if discrepa ncies c annot be view ed as a t t em p t s b y the applicant to enha

nce his claims of perse cution, they have no be aringon cre dibilit y .” Id. (quoting Sy lla , 3 88 F .3 d at 92 6) (i nte rn a l qu otatio n ma rk s o mit te d) ; se e als o Koulibal y v. M ukasey , 541 F.3d 61 3, 62 0 ( 6th

Cir . 2 00 8) ; Mapouya , 4 87 F .3 d at 40 7; Ramaj v. Gonzales , 46 6 F .3 d 52 0, 52 7- 28 (6 th Cir. 2006). A. Cr e dib ili ty Be rete argues that: (1) discr epanc ies exist ed but they did not go to the hea

rt of his claim; and (2 ) t he I J did n ot a de qu a te ly

a dd re ss h is e xplanatio n f

or the dis c re pa

nc ie s.Be rete is corre ct to ca l l i nto question the conclusion that the diffe renc es betwe en his two

st ori es–o ne inj ur

y by c ar a c c ide nt w hil e fl e e ingand ano the r i nju

ry by be a tin g a t hi s home–re prese nted his attempt to enhanc e his claim of pe rse cu t i o n . I n both stories, his leg w as br ok e n, his fathe r d ie d, the ir ho me wa s d e str oy e d, and the fa mil y had to f

le e . T he re fo re , B e re te argues, the c ourt should turn its attention to hi s expl anation for the discre pancy , and either cre dit or dis c re dit that. Ho we ve r, the I J poin te d out an a dd iti on a l disc re pa nc y that di d r e pr e se nt a

n atte mpt by B e re te to enhanc e his claim. On his I -589 application for ms and in the interview w ith the asy lum officer , Be rete only

stated that his family

had money

and that his f

ather ran a g ener al store. I n the hea ring b ef o re t h e IJ , Be re t e s t at edt h at h i s fa t h er ra na d i am o n d

b u s i n es s , t h ei r f

am i l y co n s o rt edwi t h h i gh rankingg overnme n t officials, a nd his father

was a known supporter

of Momoh. As the asy

lum office r pointed out, the cla im repeated on the I -589 forms and to the asy lum office r would not qualify B e r e t e f o r a s yl u m b e c a

u s e h e d i d n o ta l l e g e t h a th e w a s a m e mb e r o f a p r o t e c t e d

c a t e g o r y. Conne c tin g his fathe r w ithg ov e rnme nt o ff ic ia ls r e pr e se nte d a

n atte mpt to c on ne c t hi s in

jur y wi th po lit ic a l per se c uti on . We ca n als o the n th ink

of the dis c re pa

nc y be tw e e n th e be a tin g a t ho me wi th the shooting w hile flee ing a s Be rete fr aming his injury not in the context of a g ener al re bel attac k

on a pla c e , b ut a

targ e te d c ri me on

B e re te ’s fa

the r f or his po lit ic a l a ff

ili a tio ns . No doubt, “[t] h e p u rp o s e of holding a re moval hear ing is not simply to reiterate the state me nts ma de in t

he a sylum a pp lic a tio n, bu t r a the r t o a llo w a n a lie n to

. . . s up ple me nt s ta te me nts made in the application itself with a dditional de tails or incidents.” Vasha v. Gonzales , 410 F.3d 863, 871 n.4 (6th Cir. 2005). B ut this l arg ely applies to omissions because of the difficulty

in providing

an exhaustive a

nd detailed list of all incidents of perse cution. Id. Be rete did not merely supplement his c la im be fo re the I J, he c on tr a dic te d his p re vio us c la im i n w ay s th a t w e nt t o th e he art of his c la im.The B I A nor the I J need g ive spec ific re asons for r ejec ting B ere t e’ s ex p l anation for the

discrepa ncies, it nee d only

g iv e spec ific re asons which g o to the hear t of his claim for not finding B e ret e cr e dib le . T he ide nti fi c a tio n o f B e re te ’s inc on sis te nc ie s su ff ic e . B e re te wo uld

lik e us to interpre t his testim ony

to mean that he injured his legwhen the c ar r olled over w hich killed his father at the same time, while other pe ople wer e beaten outside of his home. The c onfusion resulted f rom a lay man translator

. Whil e B ere te’s interpr etation and e x planation ar e plausible, the I J ’s contra ry interpre tation is not unreasonable –which is h o w we revie w the I J ’s conc lusions. Shkabari v. Gonzales , 4 27 F .3 d 32 4, 33 0 (6 th Cir

. 20 05 ). Th e I J th e n ide nti fi e d in c on sis te nc ie s w hic h w e nt t o the he art of B e re te ’s c la im. Sub sta

nti a l e vid e nc e su

pp or ts h is c on c lus ion s. B

. Du e Pr oc e ss Be rete argues t hat t he I J violated 8 U.S.C. § 1229a which states t hat “the alien shall have a

rea sonable opportunity

to examine the evidence ag ain st the alien.” Id. § 1 2 2 9 a ( b ) ( 4 ) ( B )

. “ [W] e revie w evidentiar

y ruling s by

I J s only to determine w hether

such ruling s have r esulted in a violation of due pr ocess. Sin gh v . A sh c ro ft , 3 98 F .3 d 3 96 , 4 06 -0 7 ( 6th Cir . 2 00 5) . T he op po rtunity to examine the evidenc e “ne ed not be upon a regular, set oc casion, a

nd acc ording to the forms of jud ic ia l pr oc e dure , b ut o ne that w ill se c ur e the pr omp t, v ig or ou s a c tio n c on te mpl a te d by Con g re ss, and at the sa

me time be appropriate to the nature of t he case upon whic h such off icer s are require d to act.” Id. (q u o t i n g Mi k

ha ile v itc h v . I

NS , 146 F.3d 384, 391 ( 6th Cir. 1998)). At the hea

ring , Be rete testified that he was inj ured and his fathe r di ed in a car accide nt. For rebuttal purpose s, the g overnme nt asked if it could submit the a sy lum officer ’s re commendation and

no te s. Th e I J all ow e d it , a nd ask e d th a t th e g ov e rnme nt f a x him a nd B e re te ’s c ouns e l a

c op y to revie w over

lunch. The I J rec eived it and r eviewe d it over lunch, but B ere t e’ s co u n s el d i d not

rec eive it prior to re -conve ning f ollowing lunch. Having been informed of this, the I J g ave B ere te’sc ouns e l ti me to re vie w the me mor and um a nd c on du c t a dir e c t e xami natio n o f B e re te in w hic h B e re te explained that he told the asylum of fice r that the car rolled over a nd broke his legafte r re bels shot out his ti res. He sug g ested that the la y person tra nslator made the err or. Be rete ’s argument fails beca use any proce dural err or he identifies must b e m o re than harmless. Gilaj v. Gonzales , 4 0 8 F. 3 d 2 7 5 , 2 9 0 (6 t h C i r. 2 0 0 5 ) ( ci t i n g Cas te lla no -C ha c on v . I NS , 341 F.3d 533, 553 ( 6th Cir. 2003)). True , Be rete did not have an oppor tunity to reviewthe produc ed d o cu m en tp ri o r t o t h e h ea ri n g, n o r i s i t cl ea r t h at Be re t e wa s gi v en an o p p o rt u n i t y t o l o o k t h ro u gh the document with his counsel at the hear ing. But the asylum of fice r’s rec ommendation and notes did not become an is sue at trial until Be rete testified t hat he told the asy lum officer the same story he tol d at th e he ari ngthat da y . T he g ov e rnme nt s ub mit te d th e pr od uc e d do cumen t a s r e bu tta l. Be rete ’s counse l review ed the document, aske d Be rete about it, and he of fer ed an e x planation. Th e re fo re , if

the I J com mit te d e rr or , it w a s h arm le ss b e c a us e B e re te wa s a

ble to r e sp on d a de qu a te ly to the document such that he was not pre judiced by

its admitt ance . A l s o b a s e d

o n8 U

. S

. C

. § 1 2 2 9 a

an d d u e p r o c e s s g e n e r a l l y , B e r e t e ar g u e s t h a tt h e IJ in app rop ri ate ly

adm it ted th e un sw orn and un a uth e nti c a te d a sy lum of fi c e r r e c omm e nd a

tio n a nd no te s. Howeve r, B ere te is unable to show that he was prejudice d by the content of the re commendation and notes. First, while the asylum officer wrote in his re commendation that “ Ap p l i ca n t s tated that he

su ff e re d a br ok e n le g a s a

re su lt o f t

he be a tin g ,” he wr ote in hi s no tes that “ Ap pli c ant s ta te d h is family tried to esca

pe in a c ar bu t t he re bels beg an shooting . Applicant’s f ather was killed.” Pr e jud ic e is l a c kin g wh e re the a sylum of fi c e r’ s no te s su

pp or te d the ve rs ion

of e ve nts B e re te tol d to the I J . Second, and mor e importantly , the I J did not rely on the asylum officer ’s re commendation or notes to deter

mine that Be rete was not cr edible. The I J made clea r in explaining his conclusion that he re lied only

on the di scre pancie s betwee n the two I -589 for ms and Be rete ’s testimony in frontof

the I J. Th a t pr ovide d th e ne c e ssa ry su bs tanti a l e vid e nc e to s up po rt his c on c lus ion

that B e re te la c ke d c re dib ili ty , a

nd so if the I J com mit te d e rr or , it wa s h arm le ss. CO NC LU SION Ultimately , the inconsistencies in Ber ete’ s stories doomed hi s claim. Whil e his explanations that he wa s initi ally

advised by a lay

person who ma

y not have be en the most able tra nslator or leg al advisor and his law y er did not consult him in the pre paration of the second I -589 for m taken tog ether

are plausible, they

do not compel a contrar

y decision. The I J ’s dec ision is s upported by substantial evidenc e and is not tainted by proce dural e rror . The pe tition i s denied.