Rizk, et al v. Holder

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, RONALD M. GOULD and SANDRA S. IKUTA) DENIED IN PART; For the foregoing reasons, we DENY the petition for review as to Rizk. As to Attia, John, and Joseph, we GRANT the petition and REMAND to the BIA so that it may address their appeal from the IJ s September 26, 2001 order denying relief from removal.4 DENIED IN PART; GRANTED AND REMANDED IN PART. Each party shall bear its own costs. Judge: SSI Authoring. FILED AND ENTERED JUDGMENT. [7596943]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE GERGES RIZK; NADIA
YOUSSEF ATTIA; JOSEPH GEORGE
GERGES; JOHN GEORGE GERGES,
Petitioners,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.





No. 06-74213
Agency Nos.
A075-676-966
A075-674-142
A078-111-798
A078-111-799
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 2, 2010—Pasadena, California
Filed January 3, 2011
Before: Diarmuid F. O’Scannlain, Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta

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COUNSEL
Rasmin Sheeno, Mansouri and Sheeno, Sherman Oaks, California, attorney for the petitioners.
Daniel Glenn Lonergan, Office of Immigration Litigation,
United States Department of Justice, Washington, DC, attorney for the respondent.

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OPINION
IKUTA, Circuit Judge:
George Gerges Rizk, the principal petitioner in this case,
claims that the immigration judge (IJ) and Board of Immigration Appeals (BIA) erred in rejecting his asylum claim on the
basis of an adverse credibility determination. Specifically,
Rizk argues that he was not given a chance to explain the
inconsistencies on which the IJ relied in finding him not credible. Because the record shows that Rizk did have ample
opportunities to reconcile the numerous contradictions in his
testimony, but failed to offer a reasonable and plausible explanation for them, the IJ’s adverse credibility determination was
supported by substantial evidence. We therefore deny his petition for review.
I
Rizk, a citizen of Egypt, entered the United States on
December 6, 1998, as a nonimmigrant visitor for pleasure,
with authority to remain in the United States until June 5,
1999. His wife, Nadia Youssef Attia (Attia), and two children,
Joseph George Gerges (Joseph) and John George Gerges
(John), entered the United States as nonimmigrant visitors on
March 5, 1999, and were authorized to remain until September 4, 1999. In early 2000, all were issued Notices to Appear,
charging them with being subject to removal under 8 U.S.C.
§ 1227(a)(1)(B) for having remained in the United States
beyond the dates permitted by their visas. Rizk and his family
conceded removability but sought relief in the form of asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). Rizk and his wife filed separate petitions for relief, and the children claimed derivative relief
through each parent. See 8 C.F.R. § 207.7(a) (2010) (stating
that a child accompanying an asylum applicant may share in
the applicant’s asylum status).

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The IJ conducted an in-depth hearing over the course of
three days. Rizk and Attia were the only witnesses, and each
testified out of the hearing of the other. Their testimony
focused on three separate incidents: the harassment and beating of their son Joseph for refusing to join in Islamic prayers,
the break-in at the family’s apartment, which led to Rizk’s
persecution by the police and prosecution for inciting sectarian chaos, and Attia’s harassment by a Muslim, Mohammed
Abdul Latif, culminating in her abduction and rape. For the
reasons explained below, we focus mainly on the break-in
incident.
The break-in and its aftermath are central to Rizk’s claim
of persecution. According to Rizk, on January 24, 1998,
unknown perpetrators broke into the family’s apartment, stole
money and jewelry, and scrawled pro-Islamic slogans on the
walls. After the police arrived to investigate, Attia accused
Latif of committing the crime. The police took Rizk and Attia
to the police station and interviewed them along with Latif.
After preparing a report, the police detained Rizk overnight
on the charge of “inciting sectarian chaos,” allegedly because
he accused a Muslim of breaking into and stealing from his
apartment. The next day, the police transferred Rizk to State
Security, where, Rizk asserted, he was interrogated, occasionally struck by officers, and given five minutes of electric
shocks through his index fingers. He thereafter received letters requiring him to appear in court in connection with his
prosecution on the incitement charge.
In a detailed, 37-page opinion, the IJ reviewed Rizk and
Attia’s testimony and detailed dozens of inconsistencies,
including discrepancies as to times, dates, the sequence of
events, and the identity of the individuals who participated in
those events. The IJ pointed out internal inconsistencies, as
well as inconsistencies between the stories offered by Rizk
and Attia.1 Most significantly, the petitioners’ testimony con1

It is difficult to convey the full extent of the inconsistencies that pervade the petitioners’ testimony. For present purposes, we can provide only

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tradicted the key piece of documentary evidence they had
submitted: the police report on the break-in of their apartment.
The IJ stated that “the unusual number of factual discrepancies present in the respondents’ accounts, combined with the
blatantly contradictory nature of those discrepancies, has left
the respondents’ representations dubious.” In light of these
numerous conflicts, the IJ determined that the petitioners were
not credible, and indeed that their “testimony has left the
Court in such disarray that it could not begin to discern the
truth, if any, from the vast fallacies.” Consequently, the IJ
denied all of the petitioners’ requested relief.
Following the IJ’s rejection of their claims, petitioners
appealed to the BIA. On December 29, 2003, the BIA “adopa small sample of the many discrepancies apparent in the record. For
example, Rizk reported that Attia called him immediately upon discovering the break-in, around 2:00 or 2:30 p.m. and that he went home directly
and called the police. But the IJ noted that Rizk first stated he called the
police at 2:30 p.m., and then stated he called the police at 4:00 p.m., while
Attia stated that Rizk called the police at 2:00 p.m. Rizk subsequently
stated that the police arrived between 4:00 and 4:30 in the afternoon, while
Attia testified that they came around 2:10 p.m. At another juncture, Rizk
stated that Attia obtained the police report submitted in the immigration
proceedings with the help of individuals “inside” the police department,
while Attia said that one of Rizk’s brothers, Magdi, procured the report.
On the subject of the letters sent by the court to Rizk in connection with
prosecution for incitement of sectarian chaos, Rizk first claimed he
received no letters while in Egypt, but then said he received three letters
in November 1998 (before leaving for the United States). Attia, however,
said that he received four letters: three in July 1998 and one in September
1998.
Attia’s and Rizk’s accounts also disagreed on the chronology of Latif’s
alleged harassment of Attia. According to Rizk, Latif began accosting
Attia in summer 1997, and his last attempt to convince her to convert to
Islam was sometime between August 1997 and December 1997. Specifically, Rizk testified as follows about the last date of Latif’s harassment:
“Maybe it was October, end of November or beginning of December.
Beginning of November or end of November, end of October, beginning
of November.” Attia stated that she did not meet Latif until January 2,
1998, however, which was after the last date indicated in Rizk’s account.

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t[ed] and affirm[ed]” the IJ’s opinion solely as to “the lead
male respondent,” i.e., Rizk. The BIA’s opinion expressly did
not address the appeals of Attia or the couple’s children. Petitioners filed a timely petition for review of the BIA’s decision.
II
On appeal, Attia argues that the BIA failed to address her
challenge to the IJ’s adverse credibility determination regarding her testimony. We agree. The BIA’s opinion states: “The
respondents consist of a married couple and their two children. For purposes of this order, reference to ‘the respondent’
will refer to the lead male respondent.” The opinion then
upheld the IJ’s adverse credibility as to the “respondent,” and
concluded that “the respondent’s appeal is dismissed.” In
short, the BIA affirmed in full the IJ’s decision as to Rizk, but
did not mention Attia, John, or Joseph other than to include
them in the definition of “respondents” (a term never again
used in the opinion) and exclude them from the definition of
“respondent.”
At oral argument, the government asserted for the first time
that the BIA did not address Attia’s claims because they were
not properly before it. According to the government, the petitioners’ notice of appeal to the BIA addressed only Rizk’s
claims. Because Attia’s claims were not exhausted, the government argues, we should dismiss her appeal for lack of
jurisdiction. The record does not support this assertion. The
petitioners’ notice of appeal and supporting brief to the BIA
lists the Alien Identification Number for each of the family
members, repeatedly refers to the family collectively as “respondents” or “appellants,” and refers specifically to the “female” appellant or respondent where appropriate.
Accordingly, we conclude that Attia adequately appealed the
IJ’s decision and that we have jurisdiction over her petition.
[1] Because the BIA’s decision did not resolve Attia’s
appeal (and, consequently, did not resolve the cases of Joseph

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and John, who are eligible for derivative relief through Attia),
we must grant her petition and remand her case (along with
her children’s) to the BIA for decision. “[W]here the BIA has
not made a finding on an essential asylum issue, the proper
course of action for a court of appeals is to remand the issue
to the BIA for decision.” Chen v. Ashcroft, 362 F.3d 611, 621
(9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12, 17
(2002)). We therefore do not address Attia’s additional challenges to the IJ’s decision.
III
Rizk claims that the IJ’s adverse credibility determination
was not supported by substantial evidence. Where, as here,
the BIA expressly adopts the IJ’s decision, we review the IJ’s
findings as if they were the BIA’s. Aguilar-Ramos v. Holder,
594 F.3d 701, 704 (9th Cir. 2010). Because credibility determinations are findings of fact by the IJ, they “are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). “To
reverse [such a] finding we must find that the evidence not
only supports [a contrary] conclusion, but compels it.” INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
[2] We must uphold the IJ’s adverse credibility determination “[s]o long as one of the identified grounds is supported
by substantial evidence and goes to the heart of [the alien’s]
claim of persecution.” Wang v. INS, 352 F.3d 1250, 1259 (9th
Cir. 2003).2 The IJ “must have a legitimate articulable basis
to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Hartooni v. INS,
21 F.3d 336, 342 (9th Cir. 1994); accord Singh v. Gonzales,
2

Although the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title
I, § 101(h)(2), 119 Stat. 231, has modified the scope of our review of an
IJ’s adverse credibility finding for asylum applications filed after May 11,
2005, these modifications are not applicable here because Rizk filed his
application before the REAL ID Act’s effective date.

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439 F.3d 1100, 1105 (9th Cir. 2006). Major inconsistencies
on issues material to the alien’s claim of persecution constitute substantial evidence supporting an adverse credibility
determination. See Kaur v. Gonzales, 418 F.3d 1061, 1064
(9th Cir. 2005). This general rule has two qualifications, however. First, minor inconsistencies regarding non-material and
trivial details, such as typographical errors or inconsistencies
in specific dates and times that lack a close nexus to the petitioner’s asserted grounds of persecution, cannot form the
exclusive basis for an adverse credibility determination. Id. at
1064. Of course, even minor inconsistencies going to the
heart of a petitioner’s claim may, when considered collectively, “deprive [the] claim of the requisite ‘ring of truth,’ ”
thereby supplying substantial evidence that will sustain the
IJ’s adverse credibility determination. Rivera v. Mukasey, 508
F.3d 1271, 1275 (9th Cir. 2007) (quoting Kaur, 418 F.3d at
1067). Moreover, just as “repeated and significant inconsistencies” can deprive an alien’s claim “of the requisite ‘ring of
truth,’ ” so too can an inconsistency accompanied by “other
indications of dishonesty—such as a pattern of clear and pervasive inconsistency or contradiction.” Kaur, 418 F.3d at
1067.
[3] Second, an IJ cannot base an adverse credibility determination on a contradiction that the alien could reconcile if
given a chance to do so. Accordingly, the IJ must give the
petitioner the opportunity to provide an explanation of an
apparent inconsistency. Guo v. Ashcroft, 361 F.3d 1194, 1200
(9th Cir. 2004). If the alien offers a “reasonable and plausible
explanation” for the apparent discrepancy, the IJ must provide
a specific and cogent reason for rejecting it. Soto-Olarte v.
Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009) (quoting
Guo, 361 F.3d at 1201) (internal quotation marks omitted). If
the IJ reasonably rejects the alien’s explanation, see Osorio v.
INS, 99 F.3d 928, 931 (9th Cir. 1996), or if the alien fails to
provide a plausible explanation, the IJ may properly rely on
the inconsistency as support for an adverse credibility determination. Kaur, 418 F.3d at 1065-67; see Guo, 361 F.3d at

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1201. An IJ is not obliged to provide a protracted written or
oral analysis of the alien’s proffered explanation. Cf. Rita v.
United States, 551 U.S. 338, 356-59 (holding that the requirement of a reasoned decision in federal sentencing cases
depends on the context of each individual case and that “[t]he
appropriateness of brevity or length, conciseness or detail,
when to write, what to say, depends on the circumstances”).
Nor does the IJ have to engage in multiple iterations of the
opportunity to explain. Once the IJ has provided a specific,
cogent reason for disbelieving the alien’s rationalization, the
IJ need not offer the alien another opportunity to address the
IJ’s concerns, which the IJ would then need to address again.
Moreover, the opportunity to explain may be provided
through cross-examination by the government, see He v. Ashcroft, 328 F.3d 593, 602 (9th Cir. 2003), or even direct examination by the alien’s own attorney, see Rivera, 508 F.3d at
1275, not just through a colloquy between the alien and the
IJ.
IV
Applying these principles, we begin by considering
whether the factual discrepancies in Rizk’s testimony constitute substantial evidence supporting the IJ’s adverse credibility determination. Because we must uphold the IJ’s adverse
credibility determination so long as even one basis is supported by substantial evidence, Wang, 352 F.3d at 1259, we
focus on one of the key contradictions the IJ identified:
namely, the inconsistencies between the police report regarding the break-in and Rizk’s testimony regarding the same
incident.
[4] Rizk originally introduced the police report as evidence
of the break-in, and stated that “this report is [a] true and correct report.” During the course of the hearing, however, questioning by the government and the IJ led to testimony that was
directly inconsistent with the report on a range of key issues.

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[5] One discrepancy identified by the IJ related to a simple
yet fundamental fact: the number of the apartment where Rizk
lived and the break-in took place. In his testimony, Rizk
stated his family’s apartment number was 14. However, the
police report stated that the break-in was in apartment 8. The
government asked the following:
Q. Does this police report relate to the robbery or the
breaking in of your apartment?
A. Yes.
Q. The police report says that the apartment that was
broken into was apartment number eight. Is that the
wrong apartment?
A. The building — each floor consists of, the building is seven story building and each story has two
apartments, 14 by eight.
The IJ then added a question:
Q. So, the apartment that you and your wife lived in
with your family was apartment 14.
A. Yes. Maybe there is a mistake in the translation.
I don’t know.
[6] A second discrepancy involved the identity of the person who first discovered the break-in. Rizk claimed that Attia
discovered the break-in while Joseph was still in school, and
that Rizk ran back to the apartment and called the police. The
government asked Rizk to explain why the police report
stated that Joseph discovered the break-in.
Q. Did your son Joseph come into the apartment
while the police were there investigating the break
in?

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A. No, he was not back.
Q. According to the police report, it says that you
were not there when the police arrived but that the
son of the owner, Joseph George Rizk, 15 years old,
had come in. Is this inaccurate?
A. I don’t recall.
Q. Well, was Joseph at the apartment when you got
home?
A. I don’t recall if, I don’t recall if he was there
because when I arrived, I ran to check the apartment.
I don’t recall whether he was there or not.
[7] Further, the police report said that Mr. Mohamed Said
Abraham first reported the robbery of Rizk’s apartment to the
police. On questioning, Rizk denied that this was correct.
Q. Is Mohamed Said Abraham (phonetic sp.) a
neighbor?
A. No, we don’t know this person. We just found his
name in the report.
Q. You testified you yourself called the police. Is
that correct?
...
A. Yes, and I don’t know why they write it like this.
I was the one who called the police.
[8] A third discrepancy involved whether Rizk and Attia
had told the police that Latif was the perpetrator of the breakin. This accusation of Latif was central to Rizk’s claim of persecution, because it allegedly triggered the subsequent police

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harassment and prosecution for inciting sectarian chaos. The
police report stated that the couple had not made any accusation against Latif, or indeed any accusation at all. In light of
this crucial inconsistency, the government made the following
inquiry:
Q. According to the police report, you were asked
whether you accused of anyone and you replied no.
Was this incorrect?
A. This is a fake report. How would they give me a
report saying that I accused a Muslim person?
Q. Well, sir, if this is a fake report, why are you
offering it to this Court?
A. This is the report that they gave me but they
haven’t told the truth in the report. Of course, they’re
not going to write in that report that a Muslim person
broke into an apartment and wrote on the walls there
is no God but one God. They won’t do that.
Q. Sir, you testified that you fear going back to
Egypt because of a case where you accused a Muslim person of breaking into your apartment. Yet, the
document you brought to us makes no reference to
any Muslim person or anyone for that matter breaking into your apartment.
A. As I told you before, they’re not going to mention
that in the report. How would they mention that a
Muslim person had broken into the apartment[?]
Q. So, where is this record that you accused a Muslim person?
A. The report is with them and they’re not going to
give it to me. These are all fabricated.

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The IJ similarly asked:
Q. That report goes on to state that there was absolutely, there was no allegation against anyone from
plaintiff. Our investigation did not lead us to any
suspect. This is the report from the police department. This is a document that you submitted. Why
do you think that this document would explicitly
state that you did not bring any allegations against
anyone and that there was no suspect?
A. Things like this, they don’t mention it in the
reports. They’re not going to mention it in the
reports. He was supposed to say that the apartment
was vandalized and the pictures were thrown on the
floor. Why didn’t he mention that?
[9] In light of these and other passages in the record, it is
clear that Rizk had ample opportunity to explain the reasons
for inconsistencies in the record, but failed to offer plausible
explanations. Instead, Rizk attempted to evade questions by
claiming a failure of memory, or by speculating that the
police intentionally falsified the report and that there were
mistakes in the translation. These excuses themselves contradict Rizk’s earlier testimony that the police report is a “true
and correct report.” Rizk’s claim that the police intentionally
omitted his accusation against Latif is particularly implausible, given Rizk’s further claim that the police harassed him
and the government prosecuted him for making this very
accusation. The IJ pointed out and discussed these inconsistencies at length. Regarding the break-in, the IJ stated:
[T]he crux of the respondents’ account lies in the circumstances of the alleged January 24, 1998 break-in
at their apartment. This was a particularly violent
event in which their home was allegedly vandalized,
their belongings were broken, their valuables stolen,
and it precipitated the four day incarceration and

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alleged torture of the male respondent. However,
despite the significance of this day and all of the
events which came to pass during it, the respondents
could not describe it clearly or consistently.
Regarding the police report, she said: “[V]arious aspects of
the [petitioners’] account are entirely implausible. Despite the
fact that corroboration is generally not required, the respondents elected to submit the police report detailing their breakin . . . into the record.” The IJ then recited the discrepancies
described above, and concluded: “When afforded abundant
opportunities to explain their misstatements during their many
hours of testimony, the [petitioners] typically elected to
dredge themselves deeper into this murky mess from which
they cannot recover, . . . undermining any shred of credibility
at all then remaining.” In light of these inconsistencies and the
implausibility of the petitioners’ accounts, the IJ found the
petitioners not credible, declaring that she “[wa]s not in a
position to believe any of the information provided by the
respondents regarding their alleged past persecution in
Egypt.”
[10] Because Rizk did not offer a reasonable and plausible
explanation for the discrepancies, which went to the heart of
his claim, either individually or in the aggregate, even though
he had ample opportunity to do so, the contradictions on
which the IJ relied remain substantial evidence supporting the
IJ’s adverse credibility determination. No express, point-bypoint rejection of Rizk’s explanations was necessary. See
Rivera, 508 F.3d at 1275; Kaur, 418 F.3d at 1065-67; see
Soto-Olarte, 555 F.3d at 1091, 1094-95.
[11] Because we cannot say that “any reasonable adjudicator would be compelled to conclude” that Rizk is credible, 8
U.S.C. § 1252(b)(4)(B) (2000); accord Elias-Zacarias, 502
U.S. at 481 n.1, we uphold the IJ’s adverse credibility determination. In the absence of his discredited testimony, Rizk
cannot meet his burden of establishing past persecution or a

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well-founded fear of future persecution on a protected ground,
and we therefore also uphold the IJ’s determination that Rizk
is not eligible for asylum.3
V
[12] For the foregoing reasons, we DENY the petition for
review as to Rizk. As to Attia, John, and Joseph, we GRANT
the petition and REMAND to the BIA so that it may address
their appeal from the IJ’s September 26, 2001 order denying
relief from removal.4
DENIED IN PART; GRANTED AND REMANDED IN
PART.

3

Rizk also argued that his rights to due process and equal protection
were violated because the BIA relied on the IJ’s flawed decision. Because
we determine that the IJ’s adverse credibility determination was supported
by substantial evidence, we reject this argument. Moreover, because Rizk
did not raise his withholding-of-removal and CAT claim in his opening
brief, we deem those issues waived. Martinez-Serrano v. INS, 94 F.3d
1256, 1259 (9th Cir. 1996); see Fed. R. App. P. 28(a)(9)(A).
4
Each party shall bear its own costs.