                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                        UNITED STATES COURT OF APPEALS
                             For the Fifth Circuit                 August 5, 2004

                                                              Charles R. Fulbruge III
                                 No. 03-60185                         Clerk



          ERNAD BEGANOVIC; SAFETA BEGANOVIC; JASMIN BEGANOVIC

                                                             Petitioners,

                                    VERSUS


                  JOHN ASHCROFT, U.S. ATTORNEY GENERAL

                                                              Respondent.


                        Petition For Review of an Order
                      of the Board of Immigration Appeals
                                 (A76 433 107)


Before BENAVIDES, STEWART and DENNIS Circuit Judges.
PER CURIAM:*

         Petitioner Ernad Beganovic, his wife Safeta, and his son

Yasmin challenge the Board of Immigration’s (“BIA”) affirmance of

the Immigration Judge’s (“IJ”) denial of asylum. After carefully

reviewing the record, we deny the petition for review.

I.       Background

          In August 1997, the Beganovics, Albanians from Kosovo,



     *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.



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Serbia-Montenegro, entered the United States on visitors’ visas.

Six months later, the INS served them notice to appear charging

them as eligible for deportation for overstaying their visas.   The

Beganovics then filed an asylum application.

     In the asylum application, Ernad claimed that he was subject

to both past and future persecution due to his participation in

political activities with the Democratic Action Party (“PDA”), and

Democratic League of Kosovo (“LDK”). Ernad alleged mistreatment or

harassment by the Serbian police on five separate occasions because

of his political affiliation with those groups.       In sum, the

allegations of fact in the asylum application are as follows:

A.   First Incident

     In October 1991, in his hometown of Pec, Ernad joined the SDA,

a secular party that advocated for the right of Albanians in Kosovo

as well as other Muslims throughout then-Yugoslavia.        A month

later, a Serbian police officer arrested Ernad while Ernad was

hanging posters with some friends.    The officer confiscated the

posters and took Ernad and his friends to the police station for

questioning.   The young men were roughly treated by the police and

Ernad claims that he was beaten for roughly half an hour.   When the

officers were finished asking questions, Ernad asked for the return

of his posters.   In response, an officer punched Ernad in the face

and stomach and threatened worse if he caught Ernad again.




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B.    Second Incident

      In April 1992, Serbian police officers stepped up their

harassment of party members and arrested SDA’s regional president,

Balic.     Balic was jailed for two days and was allegedly beaten.         In

response to Balic’s arrest and the increasing police harassment of

party members, the SDA was disbanded and Balic fled the country.

C.    Third Incident

      In 1994, after marrying Safeta and fathering Yasmin, Ernad

joined LDK.       He worked frequently for the party and became a

editorial writer for its newsletter.        In the middle of the night on

February 3, 1996, Beganovic heard pounding on the door by three men

he suspected were police officers though the men wore no uniform.

When Ernad opened the door, one of the men, who was armed, attacked

him and began to beat him.      The man put his foot on Ernad to hold

him down and at times dropped to his knee to punch Ernad in the

face.      The other two men ransacked the apartment, yelling, “Where

are your guns?       Where are your friends?          Where’s your damned

paper?”      One of the men threatened to throw Safeta and Yasmin off

of   the    apartment’s   balcony   if   she   and   Yasmin   did   not   quit

screaming.     After beating Ernad sufficiently enough to leave welts

and bruises on his body and destroying most of the Beganovics’

possessions in the apartment, the men left.

D.    Fourth Incident




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     In June of 1996, four uniformed officers came to Ernad’s

apartment   and   took   him   to   the   police   station.   The   police

questioned Ernad about LDK and its officers.           When Ernad did not

give the officers any specific information, he was taken into a

dark room and beaten until he was unconscious.        Ernad awoke and was

questioned a second time.      After Ernad refused to sign a piece of

paper upon which he could not see what was written, Ernad was again

taken into the dark room and beaten until unconscious. Ernad awoke

near his apartment door on the 11th floor, but could not recall how

he got there.     He knocked on the door and his wife Safeta helped

him inside.   The Beganovics then abandoned their home to live with

Ernad’s parents who lived nearby.

E. Fifth Incident

     Seven months later, in January 1997, while Ernad was out with

a friend, the police came looking for him at his parents’ home.

His wife testified that the officers had a menacing tone and when

informed that Ernad wasn’t there, said “We’ll find him.”             After

this incident, the Beganovics moved to Novi Sad, and in August

1997, they fled to the United States.



F.   The Hearing and the IJ’s decision

     At the two-day asylum hearing before the IJ, the Beganovics

had five people testify in support of the asylum petition.           They




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were: (1) Ernad; (2) Safeta; (3) Professor Reinhartz, a history

professor at University of Texas-Arlington; (4) Benin Sucheere, one

of Safeta’s cousins, and (5) Dennis Mala, an acquaintance of

Ernad’s from Kosovo.    After the hearing, the IJ concluded that the

Beganovics had not carried their burden of persuasion on their

asylum petition because the testimony of Ernad and Safeta regarding

past persecution was incredible. The IJ made an alternative ruling

that even if he had found the Beganovics’ testimony credible, the

five incidents of harassment Ernad suffered did not rise to the

level of persecution.      Finally, the IJ concluded that because of

changed country conditions in Kosovo, even if the five incidents of

harassment   constituted    persecution,   the   Beganovics   failed    to

establish a well-founded fear of future persecution.      Accordingly,

the IJ denied all relief, except that he granted the Beganovics’

request for voluntary departure.

     The Beganovics appealed the IJ’s findings to the BIA.             The

Beganovics also asked to supplement the record with additional

material regarding conditions within the country as well as some

specific documentary evidence of medical treatment Ernad received

as a result of the June 1996 incident and that Ernad was still

wanted by the Serbian police. The BIA summarily denied all relief,

primarily relying on the adverse credibility determinations made by

the IJ.   The BIA also denied the motion to supplement the record

because the additional materials would not have affected the



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outcome of the case.     The Beganovics timely filed a petition for

review with this court challenging both the denial of asylum and

the BIA’s refusal to grant the Beganovics’ motion to supplement the

administrative record.

II.   Analysis

      “Any alien who is present in the United States or who arrives

in the United States,...irrespective of such alien’s status, may

apply for asylum.”    8 U.S.C. § 1158(a)(1).   “The Attorney General

may grant asylum to an alien who has applied for asylum...if the

Attorney General determines that such alien is a refugee....”    Id.

at § 1158(b)(1).     The term “refugee” includes “any person who is

outside of any country of such person’s nationality...and who is

unable or unwilling to avail himself or herself of the protection

of, that country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.”       Id. at §

1101(a)(42)(A). “The applicant may qualify as a refugee because he

or she has suffered past persecution or because he or she has a

well-founded fear of future persecution.” See 8 C.F.R. § 208.13.

It is the alien who bears the burden of proof to show that he is a

“refugee” in order to be eligible for a grant of asylum.      See 8

C.F.R. § 208.13.

      In reviewing BIA decisions, we review factual findings for




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substantial evidence and questions of law de novo.                         Lopez-Gomez v.

Ashcroft, 263 F.3d 442, 44 (5th Cir. 2001).                             “The substantial

evidence       standard    requires       only    that       the   BIA’s      decision    be

supported by record evidence and be substantially reasonable.”

Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002).                               We will

“accord    deference       to    the    BIA’s    interpretation          of    immigration

statutes unless the record reveals compelling evidence that the

BIA’s interpretation is incorrect.”                Mikhael v. INS, 115 F.3d 299,

302 (5th Cir. 1997).            “In other words, [an alien] must show that

the evidence was so compelling that no reasonable factfinder could

conclude       against    it.”    See     Efe,    293    F.3d      at    905;    8    U.S.C.

§1252(b)(4)(B)(“[A]dministrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to

the contrary.”).          This court only reviews decisions made by the

BIA.     See Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.

1991).     Because the BIA summarily adopted the IJ’s findings and

conclusions       in     this    case,    we     refer       to    those      findings    as

incorporated by the BIA decision.                Efe, 293 F.3d at 903.

       The primary basis for the IJ’s denial of the Beganovics’

asylum petition is that he did not find the Beganovics credible and

thus did not find that they carried their burden in proving past

persecution.      This adverse credibility determination is based on a

number    of    inconsistencies          that    the    IJ    observed        between    the




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petitioners’     pre-hearing        asylum       statement,        Ernad’s      hearing

testimony, Safeta’s hearing testimony, and the Beganovic’s failure

to present documentary evidence in support of their asylum claim.

       It is clear that we give great deference to an immigration

judge’s decisions concerning an alien’s credibility.                     Chun v. INS,

40 F.3d 76, 78 (5th Cir. 1994).           In addition, the immigration judge

has the duty to judge the credibility of the witnesses and to make

findings accordingly.        Vasquez-Mondragon v. INS, 560 F.2d 1225,

1226 (5th Cir. 1977).         Furthermore, this court is simply “not

permitted to substitute our judgment for that of the Board or the

[Judge] with respect to the credibility of this testimony or the

ultimate findings of fact based thereon.” See id. at 1226 (internal

citation omitted).

       But the IJ may not completely insulate his findings from our

review simply by stating that a petitioner is not credible. See

Anderson v. Bessmer City, 470 U.S. 564, 575 (citing Wainwright v.

Witt, 469 U.S. 412 (1985)).         We agree with other circuits that the

IJ must provide cogent reasons for his credibility determination,

see, e.g., Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994);

Alvarado-Carillo      v.   INS,     251       F.3d    44,    56    (2d   Cir.    2001);

Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998); Mansour

v. INS, 230 F.3d 902, 906-09 (7th Cir. 2000); Zahedi v. INS, 222

F.3d   1157,   1165   (9th   Cir.    2000),          and   those   reasons      must   be




                                          8
supported by substantial evidence in the record much like any

factual determination. See Lopez De Jesus v. INS, 312 F.3d 155,161

(5th Cir. 2002)(“a credibility determination may not be overturned

unless the record compels it.”)

     Our review of the IJ’s reasons and the record in this case,

however, does not compel us to reverse the IJ’s adverse credibility

determination.   Ernad’s testimony before the IJ was inconsistent

with the first and second incidents of persecution he alleged in

his asylum petition.    For example, in the first incident, the

asylum petition states that Ernad was beaten for a period of 30

minutes during police questioning. But his testimony before the IJ

alleges only that he was punched in the stomach once after the end

of questioning and only when he asked the police for the posters

back. Similarly, the second incident of alleged persecution in the

asylum petition makes no mention of Ernad being questioned and

released by the Serbian police as he testified before the IJ.

Instead, the petition only details the arrest of the SDA’s regional

president, Balic.

     Further, as the IJ noted, the testimony of Ernad and Safeta

with regard to the fourth incident in June of 1996 is inconsistent.

Ernad never testified that he was hospitalized or that he went to

the hospital for outpatient treatment as a result of the police

beating.   Conversely, Safeta testified first that Ernad was taken




                                  9
by an ambulance to the hospital “for a day or so.”                             Safeta next

testified that Ernad had not gone to the hospital until hours

later, was released the same day, and that he had been initially

treated    by    an   emergency       ambulance        crew.        In    light      of   the

inconsistencies, the shifting nature of Safeta’s account of who was

present at the apartment when the ambulance arrived, and the

absence of any reference to an ambulance or hospital visit in the

rather detailed asylum petition submitted on the Beganovics’s

behalf, we cannot conclude that the IJ’s adverse credibility

determination       in   this    case   was      not   supported         by    substantial

evidence.       A reasonable judge could view these inconsistencies as

evidence of falsity.            See United States v. Jencks, 353 U.S. 657,

667 (1957)(“Flat contradiction between the witness’ testimony and

the version of the events given in his reports is not the only test

of inconsistency.        The omission from the reports of facts related

at trial, or a contrast in emphasis upon the same facts, even a

different order of treatment, are also relevant to the cross-

examining process of testing the credibility of a witness’ trial

testimony.”).

     Moreover,        the   IJ    stated        that    his    adverse         credibility

determination was also bolstered by his “observing the respondent

closely”    while     Ernad     was   testifying        and    by   the       lack   of   any

documentation directly in support of Ernad’s political activities




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or his troubles with the Serbian police.       While the Beganovics were

not required to provide documentary corroboration of the alleged

incidents     of    persecution,       the    immigration     regulations

“unambiguously contemplate cases where an applicant’s testimony

alone will not satisfy his burden of proof.”       See Sidhu v. INS, 220

F.3d 1085, 1090 (9th Cir. 2000)(citing 8 C.F.R. § 208.13(a)).

Though we agree that Ernad initially testified why documentation

was not available, i.e. the danger of keeping political articles

and party membership cards coupled with the difficulty of getting

information from Serbian officials, that initial testimony was

undercut by his later testimony in which he stated that civil

unrest prevented him from providing any documentary corroboration.

     Ultimately, we cannot find a compelling reason in the record

to reverse the IJ’s adverse credibility determination and the IJ’s

concomitant determination that the Beganovics had not carried their

burden of proving past persecution necessary to warrant a grant of

asylum.     Accordingly,   we   need   not   consider   whether   the   IJ’s

alternative rulings withstand our scrutiny.             The petition for

review is DENIED.



PETITION DENIED




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