                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4586
                                     _____________

                             SHAD MOHAMMED ALAM,
                                       Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                             _____________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A079-727-897)
                   Immigration Judge: Honorable Rosalind K. Malloy

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 6, 2012

            Before: SLOVITER, VANASKIE, and GARTH, Circuit Judges.

                               (Filed: February 14, 2012)
                                     ____________

                                       OPINION
                                     ____________

GARTH, Circuit Judge.

      Petitioner Shad Mohammed Alam was deemed removable by an Immigration

Judge (IJ), who denied various applications for relief. When Alam appealed that

determination to the Board of Immigration Appeals (BIA), his case was remanded back

to the IJ, who once again determined that he was subject to removal and not eligible for

                                            1
relief. In a November 24, 2010 decision, the BIA dismissed Alam’s appeal from that

second decision of the IJ, and Alam now petitions for review of that dismissal. For the

reasons that follow, we will affirm the BIA’s dismissal of Alam’s appeal.

                                              I.

       We write principally for the benefit of the parties and recite only the facts essential

to our disposition.

       Alam, a native and citizen of Bangladesh, claims that he entered the United States

through Miami on November 8, 2001.

       On January 31, 2002, Alam was served with a notice to appear which alleged that

he was removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who had entered the

United States without inspection. Alam thereafter submitted applications for asylum,

withholding of removal, and relief under the Convention Against Torture. 1 On May 5,

2004, after a hearing on Alam’s applications, the IJ stated that she would grant his

application for asylum and that she intended to issue an oral decision at a future time. On

May 28, 2004, Immigrations and Customs Enforcement (ICE) filed a notice of appeal of

that decision. On January 7, 2005, the IJ departed from her prior statement and issued an

oral decision denying Alam’s application.

       Alam appealed that decision to the BIA. The BIA vacated the January 7 decision

and remanded his case to the IJ for clarification of the record. During the pendency of

the remanded proceedings, on November 13, 2007, Alam informed the IJ that he had


1
 Alam does not now appeal anything relevant to his request for relief under the
Convention Against Torture, and we therefore do not address it further.
                                              2
married a United States citizen and requested adjustment of status to lawful permanent

resident on that basis. 2 At that time, the IJ instructed Alam to provide the IJ with the

name under which Alam was admitted to the United States so the IJ could determine

whether he had undergone the inspection required for eligibility for adjustment of status.

Alam failed to provide that information.

       On January 14, 2009, the IJ held a hearing on Alam’s asylum application and his

removability. On January 22, 2009, the IJ determined that Alam was removable as

originally charged, found him ineligible for adjustment of status, and once again denied

his asylum application, finding that neither Alam nor the evidence he submitted in

support of the application was credible. Alam appealed that decision to the BIA, which

dismissed his appeal. Alam timely petitioned this court for review.

                                             II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where, as here, “the BIA

issues its own decision on the merits and not a summary affirmance, we review its

decision, not that of the IJ.” Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010).

“Our review of the agency’s legal conclusions is de novo,” and we “review factual

findings under the ‘substantial evidence’ standard.” Huaw Wu v. Att’y Gen. 571 F.3d

314, 317 (3d Cir. 2009). We will therefore uphold factual determinations, including

credibility determinations, if they are supported by “reasonable, substantial, and




2
 Alam claimed he was the beneficiary of an approved I-130 visa petition as a result of
his marriage to a United States citizen.
                                              3
probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992) (internal citation omitted).

                                               III.

         On appeal, Alam now claims: 1) that the BIA erred in determining that there was

substantial evidence to support a finding that Alam and his evidence were not credible;

and 2) that the BIA improperly concluded that there was insufficient evidence to establish

that Alam illegally entered the United States through Miami on November 8, 2001 with a

picture substituted passport 3 and was inspected upon entry. We will address each of

these contentions in turn.

                                               A.

         Alam applied for asylum under 8 U.S.C. § 1158(a)(1), claiming status as a

“refugee” under 8 U.S.C. § 1101(a)(42)(A) on the grounds that he had “a well founded

fear of persecution on account of . . . membership in a . . . political group.” Id. The IJ

denied that application on January 22, 2009, concluding that Alam did not have any such

well-founded fear, a conclusion that was wholly based on the IJ’s determination that

Alam was not credible. In reviewing an IJ’s credibility determination, the BIA considers

whether the discrepancies relied upon appear in the record, whether they provide specific

reasons to conclude the witness was not credible, and whether a convincing explanation

has been offered for the discrepancies. See Xie v. Att’y Gen., 359 F.3d 239, 243 (3d Cir.

2004).

3
 A picture substituted passport is a passport in which the photograph of the passport
holder has been replaced by a photograph of a different individual who seeks to use the
passport.
                                                4
       In reaching an adverse credibility determination and denying Alam’s application

for asylum, the IJ determined that Alam submitted fraudulent affidavits, that Alam had

failed to list his alleged nickname in his asylum application, and that Alam’s explanation

for the fraudulent affidavits was unsatisfactory. Specifically, Alam claimed that he was a

local leader of a minority political party in Bangladesh who would be subjected to attacks

if he were to return to Bangladesh. In support of those assertions, Alam submitted three

declarations purportedly from members of the same political party, all of which

addressed his involvement and visibility in the party.

       All three declarations submitted by Alam later proved to be forgeries; Alam does

not deny this fact. Furthermore, when two of the three alleged declarants were later

interviewed about Alam and his alleged involvement in Bangladeshi politics, both

indicated that they did not know anyone by Alam’s name. One declarant, a local leader

in the party, also explicitly named another individual as having held one of the political

offices at the time that Alam claimed to have held it.

        Alam claimed that he did not know the affidavits were forged at the time that he

submitted them to the IJ. Even assuming this to be true, the subsequent statements

collected from the two alleged declarants weigh heavily against Alam’s credibility. The

fact that one leading member of Alam’s alleged party expressly identified another

individual as holding an office that Alam claimed to hold is, by itself, sufficient evidence

to support the IJ’s adverse credibility finding. Alam failed to explain that significant

discrepancy, saying only that the declarant’s statement was incorrect, and that Alam

could not provide an explanation for the inaccuracy.

                                              5
       Additionally, the statements of both declarants that they did not know anyone by

Alam’s name weighs heavily against his credibility. In an effort to explain this

discrepancy, Alam claims that these individuals would only have known him as “Zillu,”

an alleged nickname which did not closely resemble his name. Alam introduced the

testimony of an expert witness to establish that such use of a nickname is commonplace

in Bangladesh. Nevertheless, as the IJ pointed out, Alam failed to list any alternate

names on his written application for asylum. When asked to explain his failure to do so,

Alam testified to three things: 1) that he did not know nicknames were used in the United

States; 2) that his relatives and the party leaders in Bangladesh knew him by his

nickname; and 3) that he did not list his nickname on the application because his relatives

and others close to him knew him as “Zillu,” and not as “Alam.” His testimony that his

family, party leaders and others close to him knew him as “Zillu” weighs strongly against

the credibility of his claim that he deliberately omitted that nickname.

       The combination of Alam’s failure to satisfactorily explain the failure of the two

declarants to recognize his name, his internally contradictory testimony, Alam’s

“nickname testimony,” and the evidence that Alam had lied about holding a specific

political office which was held by someone else, justifies the IJ’s adverse credibility

determination. We conclude that the BIA properly determined that the record reflected

these discrepancies which Alam failed to rectify, and therefore properly upheld the IJ’s

adverse credibility determination. Thus, there was no error in concluding that Alam was

not credible.

                                             B.

                                             6
       Alam next argues that he produced sufficient evidence to support a finding that he

entered the United States through Miami on November 8, 2001 with a picture substituted

passport and was subjected to inspection upon his entry. Alam therefore contends that he

is eligible for adjustment of status because he is the beneficiary of a successful I-130 visa

application because of his marriage to a United States citizen. The IJ held, the BIA

affirmed, and we now agree that Alam is ineligible for adjustment of status because he

has not proven that he was inspected upon entry to the United States. An alien is eligible

for adjustment of status only if he “was inspected and admitted or paroled into the United

States,” 8 U.S.C. § 1255(a), and Alam has not introduced sufficient or credible evidence

to support a finding that he was inspected upon entry.

       Uncorroborated testimony from a non-credible witness, which Alam was held to

be, is not “reasonable, substantial, and probative evidence.” Elias-Zacarias., supra, 502

U.S. at 481. Because there is no evidence other than Alam’s uncorroborated testimony,

let alone substantial evidence, to support a finding that Alam was inspected upon entry to

the United States, he is ineligible for adjustment of status under 8 U.S.C. § 1255(a).

                                             IV.

       Because we conclude that there was no error in the adverse credibility

determination against Alam, and that there was no substantial evidence to establish that

he was inspected upon entry to the United States, we will affirm the BIA’s dismissal of

Alam’s appeal.




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