                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-1237
                                       ___________

                                          M.H.B.,
                                                        Petitioner,

                                             v.

          ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                            Respondent.
                  ____________________________________

                         On Petition for Review of an Order of the
                              Board of Immigration Appeals
                               (Agency No. A089-249-787)
                       Immigration Judge: Honorable Susan G. Roy
                        ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   November 9, 2011

                 Before: SCIRICA, SMITH and JORDAN, Circuit Judges.

                                (Filed : November 14, 2011)
                                        ___________

                                        OPINION
                                       ___________

PER CURIAM

      M.H.B. 1 petitions for review of an order of the Board of Immigration Appeals

(BIA) affirming the decision of an Immigration Judge (IJ) denying asylum, withholding


      1
          On April 15, 2011, we granted petitioner’s motion requesting that the Court refer
of removal, and relief under the Convention Against Torture (CAT). For the reasons

detailed below, we will deny the petition for review.

       M.H.B., a citizen of the Republic of Chad, was admitted to the United States in

2007 as a nonimmigrant student. After attending university for a short time, he filed an

application for asylum, withholding of removal, and CAT relief. The Department of

Homeland Security charged him with being removable under section 237(a)(1)(C)(i) of

the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(C)(i), as a nonimmigrant

who had failed to comply with the conditions of his status.

       At a hearing before an IJ, M.H.B. testified in support of his claims. He stated that

in Chad, he had worked as a computer technician. In October 2006, an employee of the

RG — a police department with a reputation for brutality that provides security for the

Chadian President — purchased two computers and hired M.H.B. to install them in the

RG’s building. M.H.B. explained that the computers were to be installed in one room,

while the servers were in a second room; located between those two rooms was a third

room. M.H.B. decided to thread cables through that third room; however, when he

entered the room, he saw four dead bodies on the floor. He quickly closed the door,

completed his work, and left the building. Later in the week, he returned to collect his

pay. The RG then detained him for nearly three weeks; during that time, he was tortured

and interrogated about what he had seen while on the premises. Eventually, his uncle

was able to bribe the RG to secure his freedom, and he fled to the United States. M.H.B.


to him and his relatives by only their initials.
                                               2
conceded removability, but argued that on the basis of those experiences, he was entitled

to asylum, withholding of removal, and CAT relief.

       The IJ denied all relief to M.H.B.. Central to the IJ’s decision was her finding that

M.H.B. was not a credible witness; she concluded that M.H.B. had provided inconsistent

and implausible testimony. M.H.B. sought review from the BIA, which dismissed the

appeal. The BIA found no clear error in the IJ’s credibility determination. M.H.B. then

filed a timely petition for review in this Court.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the agency’s final

order of removal. We review agency factual determinations, including credibility

findings, under the substantial evidence standard, treating them as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). Because M.H.B. filed his asylum application after May 11, 2005, the

provisions of the REAL ID Act governing credibility determinations apply. See Chukwu

v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). Prior to the implementation of the

REAL ID Act, minor omissions or inconsistencies that did not go to the heart of an

asylum applicant’s claim were insufficient to support adverse credibility determinations.

See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under the REAL ID Act,

meanwhile, a trier of fact may base a credibility determination on any inconsistencies,

without regard to whether they relate to the heart of the alien’s claim. See

§ 1158(b)(1)(B)(iii).


                                               3
       We conclude that substantial evidence supports the agency’s decision to reject

M.H.B.’s credibility. The BIA’s primary basis for this decision concerned an

embellishment M.H.B. offered during his testimony about the harm he suffered on the

fifth day of his detention. In describing the day in his affidavit, M.H.B. said only that

two men came to his room and told him that they were convinced he was guilty.

Meanwhile, during the hearing, M.H.B. said that on that day, he was beaten three

separate times with a rubber whip. The circumstances of M.H.B.’s alleged confinement

are central to his claim that he was persecuted and tortured in Chad, and this discrepancy

supports the adverse credibility determination. See Xie v. Ashcroft, 359 F.3d 239, 243

(3d Cir. 2004). While M.H.B. attempted to explain his differing accounts — he first

stated only, “[a]ll I know is that it’s my story and I’m the one sitting her[e] today and

that’s what I’m explaining what happened,” but then, on follow-up questioning by the IJ,

suggested that the omission was the fault of his attorney — given that he began the

hearing by swearing that his affidavit was true and correct, it was reasonable for the

agency to find his explanation unpersuasive. See id. at 245-46.

       The BIA relied on two additional inconsistencies in concluding that M.H.B. lacked

credibility. First, in M.H.B.’s affidavit, he stated that on the fourth day of his detention,

he was given food and water, while at his hearing, he testified that he was given no food

or drink whatsoever on that day. Second, M.H.B. explained in his affidavit that upon

arriving in the United States, he had communicated with his Uncle Ab. T. by email and

his Uncle Am. T. by telephone. When his counsel asked him during the hearing whether
                                              4
he had had contact with any relatives, on the other hand, he first said, “nobody,” but then

clarified that he had received only an email from Ab. T (without mentioning Am. T.). 2

These discrepancies, although minor, lend further support to the agency’s credibility

finding. See 8 U.S.C. § 1158(b)(1)(B)(iii).

       Finally, the BIA deferred to the IJ’s finding that M.H.B.’s demeanor undermined

his credibility. The IJ noted that on cross examination, M.H.B. became frustrated,

hesitant, and argumentative. M.H.B. argues that his behavior was natural for a party

under cross-examination. However, we accord substantial deference to the IJ’s first-hand

observations, see Dia v. Ashcroft, 353 F.3d 228, 252 n.23 (3d Cir. 2003) (en banc), and

are confident that she could distinguish between the run-of-the-mill discomfort




       2
         M.H.B. claims that these statements were not inconsistent because they
concerned different time periods: his affidavit listed his communications since arriving
in the United States, while the question during the hearing asked about his
communications since he had been detained. While the question at the hearing concerned
a time period that began earlier, and would thus seem to call for his communications with
both uncles, M.H.B. argues that because he had previously testified about how Am. T.
had secured his freedom, he necessarily had been in contact with him, so he therefore
must have interpreted the question to ask whether he had communicated with anyone
besides Am T. However, there are problems with this interpretation. Most simply, it
inserts words into the question that his counsel did not use. Further, this part of the
examination concerned whether M.H.B. could safely communicate with his family after
his escape from detention; when M.H.B. listed those communications that he had risked
under the circumstances, he could have been expected to include his phone call with Am
T. Therefore, although M.H.B.’s interpretation is plausible, we do not believe that the
BIA’s contrary interpretation was unreasonable. See generally 8 U.S.C. § 1252(b)(4)(B)
(providing that “administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”).

                                              5
engendered by cross-examination and behavior evincing a lack of credibility, Singh-Kaur

v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999).

       Based on these findings, we conclude that substantial evidence supports the

agency’s adverse credibility determination. See Lin v. Att’y Gen., 543 F.3d 114, 126 (3d

Cir. 2008). 3 M.H.B. argues that we should look also to the IJ’s opinion; according to

M.H.B., some of the reasons the IJ gave for her credibility determination are not

supported by the record. However, even if we assume that the IJ did make some errors,

those do not affect the result of this case, because the findings discussed above are

sufficient to sustain the adverse credibility finding. See Abdulrahman v. Ashcroft, 330

F.3d 587, 597-99 (3d Cir. 2003); see also Husyev v. Mukasey, 528 F.3d 1172, 1183 n.6

(9th Cir. 2008) (“Because we must accept the IJ’s adverse credibility finding if any of the

supporting grounds proffered in the IJ’s decision is valid, we do not reach the IJ’s other

grounds for discrediting [petitioner’s] testimony.” (internal citation omitted)).

       Accordingly, we will deny the petition for review.




       3
         Because M.H.B.’s CAT claim was premised on the same allegations as his
asylum and withholding of removal claims, this credibility determination is dispositive as
to each of his claims. See, e.g., Guo v. Gonzales, 463 F.3d 109, 114 (2d Cir. 2006).
                                              6
