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w . v i l l a no va . e du/thir dc ir c uit_2004/197NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

__________ No. 03-4076

__________ JAI BAHADUR B. RANA Petitioner,
v. JOHN ASHCROFT, ATTORNEY GENERA L OF THE UNITED STATES Res pon dent.

__________ On Petiti on for Review of an Order of Removal from the B oard of Im migra tion A ppea ls U.S. Department

of Justi ce Executive Offi ce for Immigr ation Revi ew (BIA No. A75-612-212)

__________ Argued: Tuesday , Septe mber 28, 2004

___________ Be for e: R OT H, B AR RY , and GA RT H, Circu it Judges

(Opinion Fi led: Oct ober 26, 2004)

__________ OPI NION

__________-2-

Ga rth, Circu it Judge : Ja ib ah ad ur B ah ad ur R an a, a cit ize n o f N ep al, pe titi on s f or re vi ew of a d ec isi on by th e Board of I mmig ra ti on Ap pea ls (“ BIA” ) d eny in g hi s a ppl ic at io n fo r a sy lu m, 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” ). In so rul ing, t

he BIA affirmed without opinion t

he findi ng of the Immigr ation J udge (“IJ” ) that

Rana lacked cr edibil ity because of i nconsistencies be tween his or al te sti mony and asy lum appli cati on. We have juri sdiction under 8 U.S. C. § 1252. We will de ny t he Pet it io n f orRev ie w. I. Because we write exclusivel y for the benefi t of the parti es who are well a cquaint ed with the facts and procedural posture of the present action, we will recount only those matter s rel evant t o the is sues befor e us. Rana entered the United States on June 15, 1998 pursu ant to a temp orary visa , wh ich au thorize d him to rem ain in th is cou ntry until De cem ber 14, 1 998 . On or a bou t Oc tob er 2 6, 19 98, R ana filed an a ppl icatio n fo r asylu m. On December 22, 1998, the INS filed a Noti ce to Appear, charging Rana wit h overst ayi ng his v isa a nd w ith re mo vab ility und er S ectio n 23 7(a )(1)( B) o f the IN A, 8 U.S .C. § 1227(a)( 1)(B). Rana conceded removabil ity , but requested a sylum, withhol ding of
remo val , a nd pr ote ct ion unde r the CAT. Rana was the sole witness at his asy lum heari ng, duri ng which he recount ed the follo win g na rrativ e of his e xpe rien ces . Ra na is a 48 year-o ld cit izen and nativ e of Ne pal.-3-

He was employed for 24 y ears bythe Brit ish Army, reti ring sometime in 1996. Rana has
a w ife a nd t wo son s, w ho, a t the t ime of th e he arin g, w ere 1 2 an d 14 years o f ag e. Ran a b as es hi s p er se cu ti on c laim on two a lter ca ti ons wit h me mbe rs of

th e MAO communist party (the “Maoist s”). The first incide nt occurred on January5, 1998, when twentyto thi rtyMaoists came t o his house. At the ti me, Rana was home with his wif e, one son, and a y oung servant girl . At fir st, the Maoists merelyinformed Rana about the nature and purpose of their movement, stating that inasmuch as t

here shoul d be no povertyamong the people, it was nece ssaryto confi scate t he wealth and pr opertyof the rich. In response , Rana told the Ma oists that he disliked the p rinciples they were espousing, preferring ins tead democrac y and t he current

political climate. To thi s the M aoists re acted with ange r, using roug h vo cabu lary and iss uing threats, a nd sta ting in parti cular, “either y ou join us or y ou don’t, then the y st arted a sking [for ] money. ” Rana, however, ref

used to gi ve the Maoist s money. The Maoists the n informed Rana that such refusal w ould end anger the life o f one o f his fam ily members. Be fore leaving , moreov er,
one or m ore of th e M aois ts stru ck R ana , cau sing him to su stain fac ial cu ts. Rana sought medicaltreat ment for hi s inj uries , and at the asy lum heari ng he submitted a doctor ’s repor t confi rming his visi t and describing hi s inj uries . Rana did not report the inc ident to the poli ce because t he Maoists t

hreate ned him with serious danger sho uld he d o so . Rana further

testifie d that t

he Maoists r eturned a

second ti me on February26,-4-

1998, when an other group, also numbering between twenty and thirty , came to his house during t he middle of t

he night. The Maoists demanded money and once more reques ted that Rana j oin their ranks. The Maoists agai n threatened both Rana and hi s wife, includi ng a threat to r ape his wife . Rana reacted by ki cking one of the Maoists, and he
wa s then beate n un cons cious by seve ral me mb ers of the gro up. H e aw oke in the ho spital, and although his wife was not physi call y i njured during thi s encounter , she s uffered shock. Thi s ti me Rana’s wife reported the incide nt to t he polic e, but

the poli ce said t

hat they could not prot ect an individual person in l ight of the many victi ms of the M aoists’ terrorizin g activ ities. Ra na su bm itted bo th the h ospital a nd p olice re ports re lating to this second inci dent at

the asy lum heari ng. Alth oug h R ana e xper ience d no other v iolent e ncou nters w ith the M aoists, in March 1998 he received a message “through other peopl e,” i.e . , someone del ivered a “leaf let with the de man d that I h ave to pay them .” Ra na testif ied tha t “[t]he ir aim w as to extr act th e m one y, to ge t the m one y” by thr eate nin g pe opl e an d th eir f am ilies. Fearing for

his saf ety , Rana left

Nepal in June of

1998. His wife and c hildren
rema ined in Ne pal. R ana h as stated that, if he we re to retu rn to N epal, the M aoists w ould tortu re an d ki ll him bec aus e he is ag ains t them
. In an oraldecisi on, the IJ det ermined that, based on his oral testi mony, Rana qualified fo r asylum unde r the theory of impu ted political opinion. H owe ver, the IJ concluded that Rana was not credible , and he thus denied Rana’ s asy lum appli cati on. The-5-

IJ st ated that the re was a serious cont radict ion between Rana’s testimony and hi s asy lum applic ation. In particular, t he IJ not ed that

Rana’s asy lum declar ation s aid nothi ng about the M aoists se eking him to join the ir mov eme nt. Up on re citing R ana’s testimo ny–and its emph asis on the M aoists’ political objectives and alleged desire to rec ruit him–the IJ observed: [I]t is on ly inciden tal in his te stimo ny today tha t they aske d him for m oney. W ell that i s verydiffere nt from his asy lum appli cati on, becausehis asylum appli cati on has nothing to do w ith them seek ing to [hav e him] join their m ovem ent. That’s neve r men tioned ; neve r any threa ts beca use h e w ould n’t join th e mo vem ent. It is very clea r from his de claration that this w as all ab out m oney, w eapo ns, an d asse ts that w oul d be sup plied by him for their cau se. The IJ thus concluded that Rana had “cr eated a r ecent fabrication in or der to qual ifyfor asylum b y articulating for the first time , a theo ry other tha n m oney an d asse ts for th is organization. ” Driven by Rana’s lac k of credi bili ty , the IJ searched for anycorrobor ating evide nce th at mig ht inde pend ently supp ort R ana’s claim s. Bu t the fe w d ocum ents submitted by Rana sa id nothi ng about the critical issue, i.e., the Maoists ’ all eged poli tica l motives. The IJ st ated that the various hospit al and pol ice re ports di d not answer that questi on because they were s ilent as to why the Maoists harmed Rana. A letter from Rana’s son al so fail ed to indi cate the cause of the threats and beat ings, even though the son was all egedlypresent during t he January5, 1998 encount er. The I J placed f urther emphasis on t

he fact t hat the wife fail ed to provi de corrobor ative evidence des pite be ing
an e yew itnes s to b oth eve nts.1 Aside from claiming persecution based on his political opinion, Rana arg ues that he had established asylum based on his membership in a particular social group. We will not consider this issue b ecause

Rana fa iled to ra ise it in hisNotice of

Appeal o r in his brief to the

BIA . It is well settled that this court may not consider pa rticular questions not raised in an appeal to the BIA. Miah v. Ashcroft, 346 F .3d 43 4, 439 n.2 (3 d Cir . 2003 ) (cit ing Alleyne v. INS , 879 F.2d 1177, 1182 (3d Cir. 1989)). -6- The BIA affirmed the I J’s deci sion without opini on. Rana ti mely f iled t his Petiti on for Revi ew, li mitin g hi s a rg umen ts to hi s a sy lu m cl ai m, 1 th er ebyaba ndo ni ng h is cl ai ms for wit hho ldin g of rem ova l and pro tectio n un der the C AT
. See F.D.I. C. v. Deglau , 207 F.3 d 15 3, 16 9 (3 d C ir. 20 00) (fin din g ch allen ge w aive d if n ot in ope nin g br ief)
. II. Where, as her e, the BIA affirms the IJ’s decisi on without opi nion, t he opinion of the I J co nstitu tes th e fin al ag enc y dete rmin ation for pur pos es o f ou r rev iew . 8 C .F.R
. § 10 03.1( e)(4) (2 003 ); Dia v. Ash croft , 35 3 F
. 3d 22 8, 24 3 ( 3d Ci r . 20 03 ) ( en ba nc )
. We
rev iew adv erse cred ibility de term inati ons for sub stan tial ev iden ce. Balasubramanrim v. INS , 1 43 F .3 d 15 7, 161 (3 d Ci r. 199 8) . U nde r t hi s d ef er en ti al st an da rdof

re vi ew, we
mu st uph old the credib ility determin ation o f the B IA o r IJ unle ss “an y reason able adju dica tor w oul d be com pelle d to con clud e to th e co ntra ry.” 8 U .S.C . § 12 52( b)(4 )(B ). For Rana to prevail, then, the evi dence of credibili ty must be so st rong in hi s favor that i n a civi l trial he would be enti tled to judgment on the credi bili ty issue a s a matte r of law
. See INS v. Elias-Zacari as , 502 U .S. 478, 481 n.1 (1992 ) (holding that B IA’s decisio n can be rev ersed only w here p etitioner ’s evid ence “com pels” a reaso nable factfi nder to fi nd in his favor). That sai d, advers e credi bili ty determi nations “based on-7-

speculat ion or conj ecture , rat

her than on e vidence i n the rec ord, are revers ible. ” Dia , 353 F.3d at 249 ( quoting Ga o v. A shcro ft , 299 F.3d 266, 272 (3d Cir. 2002)). Minor inco nsis tenc ies in the r eco rd a re n ot an ade qua te ba sis fo r an adv erse cred ibility fin din g. Sen athi rajah v . I

NS , 157 F.3d 210, 221 (3d Cir. 1998). The IJmust ins tead base such a finding on di screpanci es that “involve the heart of the asy lum clai m.” Gao , 299 F.3d at 272. In findi ng Rana to be not credible , the IJ’s determi nation was bas ed primari ly on the “ serio us c ont rad ictio n” b etw een his a sylum dec larat ion and ora l testim ony. W e conclude, after

reviewing t

he record a s a whole, t

hat the record evi dence does not compel a contrary concl usion to that of the IJ
. It i s evident

that Rana’ s asy lum declar ation s aid nothi ng about the Maoists aski ng him to join the ir mov eme nt, thou gh, ev en if it d id, the m ere fa ct of h is refu sal w ould not, without more, support a finding t hat Rana had been per secuted on a ccount of hi s poli tica l opi nio n. See Elias -Zacarias , 502 U.S. at 482 (al ien’s refusalto joi n gueril la group insuffi cient

to show persec ution on ac count of pol iti cal opi nion, a s gueri llas could have believed that su ch refusa l was m otivated by other fac tors). What ca rries particular import about the d eclaration, then, is its conspicuo us silence w ith respect to the crux of Ra na’s asylum c laim, to w it, that the p rime m otivatin g fac tor in the two violen t attacks wa s his prof essed disda in of th e M aoists’ p olitical ob jectives and h is allegia nce to the de mo cratic government. This si lence i s render ed more proble matic bythe decl arati on’s repe ated-8-

referenc es to t

he Maoists’ economic or fi nancialmotivations, as well as the st atement t hat Rana “had always been a person of no pol iti cal backgr ound and livi ng in peace. ” On the declar ation a lone, theref ore, Rana cannot

show that t

he Maoists per secuted
or w ill persec ute him beca use o f his p olitical op inion, ra ther tha n sim ply beca use o f his refusalto paythe demand for money . The lat ter reason is not enough to s upport a fi nding of p erse cutio n. See Orobio v
. Ash croft , 71 Fed.Appx. 113, 115-16 ( 3d Cir. 2003) (holdi ng that a lien f

aile d to show that

he was subject

to pers ecuti on on account of political o pinion on b asis tha t com mu nist gro up d ema nded tax fro m h im tha t he ref used to pay); Borja v. Immigration & Naturalizati on Serv. , 175 F.3d 732, 736-37 (9th Cir. 1999) (en banc) ( recogniz ing that extortion of busi ness peopl e can be purel y economi c in nature, tho ugh hol din g th at ex tortio n of pro -go ver nm ent a lien w as n ot p ure ly eco nom ic). Ra na’ s test imo ny, in c ont rast, s tress ed th e po litical mo tivat ion s of the M aois ts. Ran a testified that the M aoists “ aske d m e to join their m ovem ent. T hey said, c om e, join
our m ovem ent.” H e furth er testified that he told the M aoists th at he d isagre ed w ith their political principles, which promp ted the first of tw o violent attacks. T his stands in sha rp contras t to hi s declar ation, which reported onlythat he was “severel y beaten” and which made no reference to any politicalconversations with the Maoists. Despite t hese dis crepanci es, Rana contends that no contradi ctions exist between the de claration and th e oral te stimo ny. He a rgue s that the oral testim ony m erely filled in missi ng detai ls i n the decl arati on, thus elaborating upon, not contr adicting, hi s asy lum-9-

application. W e must reject this argu ment be cause the d iscrepancies relied u pon by the IJ cannot be equated with the“minor inc onsistencies” that are unrel ated t o the heart of Ra na’ s asylu m c ase . Compare Gao , 299 F.3d at 273 (findi ng minor incons ist ency between ali en’s appl ication and oraltestimony where application s tate d that a lien was “messenger” f

or Falungong and or al te sti mony included statement that alie n was “prac ticing F alung ong ,” in ad dition to being “me sseng er”); Senathir ajah , 157 F.3d at

221 (findi ng minor incons ist ency where a lien’ s written statement contai ned time fr ames not identical to those testified to). Indeed, the core issue i n this case is whether the Maoists persecuted Rana because of his r efusal to fund thei r poli tica l activities or rather because he pr ofessed pol iti cal opinions contrary t o their own. That the as yl um application fai ls t o even mention t he critical fa cts said to sup port the impo rtant po litical nex us up on w hich th is case revo lves is
eno ugh to su stain the I J’s a dve rse c red ibility de term inati on. In addition, Rana’ s explanat ion for t he discrepancies among his tes timonyand asy lum appli cati on is unconvi ncing. He contends that his asy lum appli cati on contai ned onl y a “ co nc is e s tate men t, whi ch was ni ce an d s wee t, ” o f wh at he re ca ll ed at

th e tim e. As the IJnoted, however, Rana was an ins tructor for 24 y ears i n the Brit ish mil itar

y, trai ned to take cognizance of de tail s. I t seems unl ikely that Rana would forget the reason why he was physi call y as saulted on two occasi ons by t he Maoists. Nor does it appear l ikely

that Rana’s profes sed attempt at br evity constr ained hi m from includi ng a statement about t he-10-

M aoists’ p olitical m otivatio ns, esp ecially w here h e fou nd th e opp ortun ity to repeate dly
men tion the M aoists’ d ema nds f or m oney. A s such , the IJ w as no t unrea sona ble in rejec ting Ra na’ s res pon se to the in con siste ncie s. Lastly , the IJ’s adverse credibil ity determi nation was not

based on the discr epancies alone but rather took into account the absence of cor roborative evi dence
con cern ing the a llege d po litical mo tives of th e M aois ts. See Gao , 299 F.3d at 272 (explai ning that

“the INS may require doc umentaryevidence to support a clai m, even from otherwis e credi ble appl icant s, t o meet thei r burden of pr oof”). Nei ther hi s wife nor son, w ho w ere bo th pres ent at th e first alter cation in w hich R ana a lleged ly expres sed h is political v iews in op positio n to the M aoists’ e ntreaties , supp lied an affid avit
corro bora ting tho se fac ts. Ran a off ered n o reas onab le exp lanatio n to the IJ, or to th is
cou rt, w hy he faile d to pro duc e su ch e asily as certa inab le co rrob ora tive e vid enc e. III. The discre pancies be tween the as yl um declaration and the oral testi mony concerni ng the moti ves of the Maoist s are not minor or i nconsequenti al, as theyinvolve the heart of R ana’s asylum claim based o n political persecution . In addition, the IJ’s adverse credibil ity

determi nation i s further supported by t he absence of cor

roborative evidence t o critical aspects of Rana’s cl aim. I nasmuch as the IJ’s deci sion was supported by subs tantial ev idenc e in the record , we m ust up hold the IJ’s a dver se cred ibility determi nation.2 Rana also argues that the BI A failed to comply with its own reg ulations when it issued a summary aff

irmance in this case. We are bound by our recent decision in Dia v. Ashcroft , 353 F.3d 228 (3d Cir.2003) (en banc), which upheld the constitutionality of the BIA’s summary affirmance procedure. Rana argues, though, that it was error to apply that procedur

e in this case, apart f rom its con stitutiona

l dimension s. Framing the a rgumen t in this man

ner doesnot eleva

te it above the clear strictures of Dia. Becau se we dir ectly review t he decis ion of the

IJ whe n a case comes to us from the BIA unde r the streamlining regulations, the decision to streamline becomes indistinguishable from the merits. That is to say, the substance of our review is the same whether the BIA proper

ly or improperly

streamlined a particular case. See Falcon Carriche v. Ashcroft , 350 F.3d 8 45, 855 (9 th Cir. 2003 ) (“Were we to find

an erro r, we wou ld either grant r elief if permitted or simply remand to the B IA to proceed in a ma nner consistent with our decision.”). -11- We wi llde nyth e Pe ti ti on f orRev ie w. 2