                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2005

Budy v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2559




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                                               NOT PRECEDENTIAL

      IN THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                      Case No: 04-2559

                       ERNIE BUDY,


                              Petitioner

                               v.

    *ATTORNEY GENERAL OF THE UNITED STATES;
        SECRETARY OF THE DEPARTMENT OF
              HOMELAND SECURITY,

                             Respondents

      (*Amended pursuant to Rule 43(c), Fed. R. App. P.)


            On petition for review of a final order
            of the Board of Immigration Appeals
                    File No: A79-327-480
          __________________________________

              Submitted pursuant to LAR 34.1(a)
                        May 6, 2005

Before: MCKEE, SMITH, and VAN ANTWERPEN, Circuit Judges

                    (Filed: May 19, 2005)


                  _____________________

                 OPINION OF THE COURT
                  _____________________
SMITH, Circuit Judge.

       Appellant Ernie Budy appeals a decision of the Board of Immigration Appeals

(“BIA”) in which the BIA affirmed the Immigration Judge’s (“IJ’s”) denial of Budy’s

application for asylum, withholding of removal, and protection under the United Nations

Convention Against Torture (“CAT”). We will affirm.

       Because we write only for the parties, we limit our discussion to the facts and legal

principles necessary to resolve this appeal. After a hearing in which Budy presented

testimony in support of her claim, the IJ made an adverse credibility determination,

finding that Budy had not testified credibly, and thus had not carried her burden of proof

with respect to establishing eligibility for asylum. The BIA affirmed in a per curiam

opinion in which it adopted the portion of the IJ’s opinion containing the IJ’s adverse

credibility analysis. An adverse credibility determination is a factual finding reviewed

under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.

2003) (en banc). Under this standard, “administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id.

(quoting 8 U.S.C. § 1252(b)(4)(B)). “Thus, the question whether an agency

determination is supported by substantial evidence is the same as the question whether a

reasonable fact finder could make such a determination based upon the administrative

record.” Id. at 249.

       Budy is a native of Indonesia, and she is of Chinese ethnicity. Her petition for



                                             2
asylum revolved in large part around an alleged May 1998 incident in which Budy

claimed that a number of Muslim men surrounded a car in which she was driving with a

female friend named Vivi, who was also of Chinese ethnicity. Budy alleged that she and

Vivi were forced to exit the car, and that the attackers raped Vivi. Budy indicated that the

attackers tore off some of her clothing, but did not rape her because she was menstruating

at the time. Budy claimed that she escaped from the attackers, and that an elderly Chinese

man assisted her in getting to the hospital.

       The IJ cited a number of concerns and discrepancies with respect to Budy’s

testimony. We focus on two that we believe provided substantial evidence for the IJ’s

adverse credibility determination that was adopted by the BIA. First, Budy’s initial

affidavit, prepared without the assistance of counsel, indicated that “a bunch of savage

men came out from the bushes” and blocked the car in which she and Vivi were traveling.

A second, supplemental affidavit submitted by Budy at a later date provided additional

information relating primarily to her religious background, and contained a paragraph

stating that everything in the first affidavit was true. Budy later submitted a third, single-

paragraph affidavit, prepared with the assistance of counsel, in which she sought to

modify information provided in her first affidavit. This third affidavit did not mention

men coming “out of the bushes.” Instead, it indicated that “we found ourselves blocked

by a bus in the street. We did not realize the bus was there as a road-block until we

approached closer and people inside the bus came out. They rushed out of the bus and



                                               3
surrounded my car.” The remainder of the single-paragraph third affidavit described the

opening moments of the alleged 1998 attack in a manner consistent with the statements in

Budy’s initial affidavit. At her hearing, Budy testified in a manner consistent with the

third affidavit, indicating that the reference to “bushes” in the first affidavit had been a

mistake, and that her attackers had actually exited a bus that was blocking the roadway on

which she was driving.

       The IJ cited the discrepancy between Budy’s first affidavit, on the one hand, and

her third affidavit and hearing testimony, on the other, as a basis for his adverse

credibility determination. The BIA adopted the IJ’s finding. On appeal, Budy notes the

“alphabetical similitude” between “bushes” and “bus,” and argues that this fact proves

that the first affidavit’s reference to attackers who came “out of the bushes” was merely a

typographical error. While this is one possible interpretation, we do not think the IJ was

obligated to take this view. Budy’s third affidavit not only mentions a bus, but explains

that it was the presence of this bus on an otherwise empty road that operated as a

roadblock, preventing Budy and her companion from escaping. These details, concerning

events central to Budy’s claim, can reasonably be expected to have been included in

Budy’s first affidavit. Where such details were omitted, and where Budy filed a second

affidavit reaffirming the accuracy of the first affidavit, only to follow with a third

affidavit that changed Budy’s account, and where Budy proceeded to testify in a manner

consistent with the third affidavit, we believe the IJ reasonably cited the discrepancy



                                               4
concerning the origin of Budy’s attackers as a factor that cast doubt on Budy’s overall

veracity.

       A second, and similar, discrepancy noted by the IJ relates to Budy’s account of her

escape from her attackers. Budy’s initial affidavit stated that while she was fleeing from

the scene, an elderly local resident “came to me and embraced me.” The affidavit states

that this resident helped Budy find a secure route to the hospital where she worked, and

that she took shelter there. However, in her hearing testimony, Budy indicated that after

encountering this resident, she took shelter in his home for several hours, and only later

proceeded to the hospital. The IJ found that Budy’s failure to indicate in her affidavit that

she had taken shelter in a stranger’s home immediately after fleeing her alleged attackers

cast further doubt on Budy’s overall credibility. Budy argues on appeal that there is no

contradiction between her affidavit and her testimony, and that the testimony simply

contains added details that supplement, but do not contradict, the account in her initial

affidavit. Budy’s argument is not inherently unreasonable, but we do not believe it is the

only plausible interpretation of the facts. The events surrounding the alleged 1998 attack

and its immediate aftermath are at the core of Budy’s claimed entitlement to asylum and

withholding of removal. Where Budy’s initial affidavit contained substantial detail with

respect to these incidents, and yet omitted the fact that she took shelter in a stranger’s

home for several hours prior to leaving and making her way to the hospital, we believe

the IJ reasonably viewed such an omission, combined with Budy’s later, more detailed



                                               5
testimony, as giving rise to a discrepancy that undermined Budy’s overall credibility.

       In sum, we hold that the IJ’s adverse credibility determination, adopted by the

BIA, was supported by substantial evidence. The absence of credible testimony in

support of her claim left Budy unable to demonstrate her entitlement to the relief she

seeks, and thus we will affirm the decision of the BIA.




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