                 Not For Publication in West’s Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

            United States Court of Appeals
                          For the First Circuit


No. 05-2295

                           ROMILTON C. MARTINS,

                                 Petitioner,

                                        v.

                        ALBERTO R. GONZALES,
                 Attorney General of the United States,

                                 Respondent.


                   PETITION FOR REVIEW OF AN ORDER

                 OF THE BOARD OF IMMIGRATION APPEALS



                                     Before

                Torruella and Lynch, Circuit Judges,
                    and Young*, District Judge.



     José A. Espinosa on brief for petitioner.

     Michael Sady, Assistant United States Attorney, and Michael J.
Sullivan, United States Attorney, on brief for respondent.


                                June 23, 2006




     *
         Of the District of Massachusetts, sitting by designation.
      YOUNG, District Judge.    We must determine whether substantial

evidence   supports    the   summary       affirmance    by    the   Board   of

Immigration Appeals (“BIA”) of a denial by an Immigration Judge

(“hearing officer”) of the application for political asylum filed

by petitioner, Romilton C. Martins (“Martins”).                 After careful

review of the record, we conclude that the hearing officer’s

determination   was    sufficiently    supported        and   deny    Martins’s

petition for review.



I.    Factual and Procedural Background

           Martins is a citizen and native of Brazil.                He entered

the United States on September 22, 2002 in Tecate, California. The

following day, September 23, the Immigration and Naturalization

Service (“INS”) served Martins with a Notice to Appear charging

that he was subject to removal as an alien who was neither admitted

nor paroled after inspection by the INS.            On February 12, 2003,

Martins acknowledged the Notice to Appear, admitted the truth of

the   factual   allegations     it     contained,       and     conceded     his

removability.    Martins     subsequently      filed    an    application    for

asylum, withholding of removal, and relief under the Convention

Against Torture (the “Convention”).

           A hearing was held in Boston before Immigration Judge

Leonard Shapiro on February 10, 2004.           At that hearing, Martins

testified that he had owned a clothing factory and several stores


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in Brazil.      He stated that these businesses were doing well until

he began having problems with union representatives.                Martins

explained that the union was against him because of his membership

and   support    for    the   Partido   Movemento   Democratico   Brasileiro

(PMDB), the Brazilian Social Democratic political party.            Martins

testified that the union was opposed to the activities of the PMDB

and supported the party that had just won power in Brazil.

           Martins testified that the union would lure his workers

away with false promises of higher pay, and as a result, he would

have to cancel orders that he could not fill.           He claimed that he

received threats from the union in the form of calls and letters

with no return address, and although he notified the police,

“nothing would happen” because there was no way to prove anything

and because the police “[didn’t] really try to help anyone with

anything.”

           Martins also testified that in July or August 2002, union

members went to his home, knocked on his front door, and discharged

their firearms.        Martins stated that he was not home at the time.

He informed the police of this incident, but said they refused to

assign an officer to him or to offer him any protection.           On cross-

examination, however, Martins testified that there were actually

two shooting incidents in his home -- one in July and one in August

2002.   He described the July 2002 incident as a minor one which he

did not report to the police.           Martins confirmed that the August


                                        -3-
2002 shooting was the same incident that was described in a

document he submitted to the hearing officer as a police report of

an August 21, 2002 shooting at his house.      On cross-examination,

Martins admitted that although he testified that he was not at home

during the August incident, the document he submitted as a police

report stated that he and his wife were home.

            Martins also testified on cross-examination that, in

fact, two incidents occurred on August 21, 2002 -- an armed robbery

attempt and the shooting at his home.      Martins submitted to the

hearing officer documents and translations of those documents,

which he represented to be police reports he filed in relation to

the incidents.    The hearing officer admitted those documents in

evidence.

            Martins admitted at the hearing to having been present in

the United States illegally in the past, from 1989 to 1993.

            The hearing officer issued an oral decision denying

Martins’s requests for asylum, withholding of removal, and relief

under the Convention.     The hearing officer determined, noting the

numerous inconsistencies in Martins’s testimony, that Martins was

not a credible witness.    The hearing officer concluded that “[t]he

circumstances surrounding what any reasonable person would consider

to be a very serious occurrence are so garbled and inconsistent

that I cannot rely on the incident ever having occurred.”        The

hearing officer also indicated that he believed the documents


                                  -4-
submitted by Martins to be fraudulent, noting that “[i]n reviewing

the document which purports to be a translation of a report stating

a   death   attempt[,]   the   report    is   so   irrational   that    it   is

unbelievable.”    The hearing officer questioned how a claim that

union   representatives    trying   to    hire     away   Martins’s    workers

properly could morph into a claim of political asylum from the

activities of the Brazilian government.            The hearing officer also

found “no evidence that anyone from the government of Brazil is

seeking to torture the respondent.”

            On July 26, 2005, the BIA affirmed the hearing officer’s

decision without issuing an opinion.          Martins filed his petition

for review by this Court on August 25, 2005.          On September 9, 2005,

Martins’s removal was stayed pending his appeal.



II.   Jurisdiction and Standard of Review

            We have jurisdiction over Martins’s timely petition for

review pursuant to 8 U.S.C. §§ 1252(a)(5) and 1252(b)(1).               Where

the BIA has summarily affirmed the hearing officer’s decision, we

turn to that decision to review.          See Chen v. Gonzales, 418 F.3d

110, 113 (1st Cir. 2005).       We must uphold determinations of the

hearing officer if “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.”               INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks

omitted).    This “substantial evidence” standard applies to claims


                                    -5-
for   asylum,    withholding      of    removal,      and     relief    under     the

Convention. Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004).

The hearing officer’s denial must stand unless “the petitioner’s

evidence would compel a reasonable factfinder to conclude that

relief was warranted.”           Id.    Absent an error of law, we can

overrule   the    hearing    officer     only    “if    the     evidence       points

unerringly in the opposite direction.”           Nikijuluw v. Gonzales, 427

F.3d 115, 120 (1st Cir. 2005) (citation and internal quotation

marks omitted).

           We also review adverse credibility findings under the

substantial evidence standard.           Chen, 418 F.3d at 113.              “[I]f we

cannot say a finding that the alien is credible is compelled - then

the   decision   must   be   affirmed.”         Id.      “Matters       of    witness

credibility     and   demeanor    are   peculiarly      for    the     factfinder,”

Rodriguez Del Carmen v. Gonzales, 441 F.3d 41, 43 (1st Cir. 2006),

and credibility determinations supported with specific factual

findings are treated with “great respect,” Laurent v. Ashcroft, 359

F.3d 59, 64 (1st Cir. 2004).



III. Discussion

           Martins does not challenge the denial of his application

for withholding of removal in his brief.              Therefore, any claim for

withholding is considered waived. See Harutyunyan v. Gonzales, 421

F.3d 64, 65 n.1 (1st Cir. 2005).


                                        -6-
              In order to establish an entitlement to asylum, Martins

must   show    that   he   is   a   refugee       within    the   meaning   of   the

immigration laws.          A refugee is an alien “who is unable or

unwilling to return to, and is unable or unwilling to avail himself

or herself of the protection of, [his home] 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.”         8    U.S.C.    §    1101(a)(42).    A

petitioner must show “that race, religion, nationality, membership

in a particular social group, or political opinion was or will be

at least one central reason for persecuting the applicant.”                       8

U.S.C. § 1158(b)(1)(B)(i).          The burden of proof is on the alien to

establish that he is a refugee.          Id. § 1158(b)(1)(B)(i).

              Martins argues that the hearing officer improperly relied

on “minor” discrepancies in Martins’s testimony to determine that

Martins was not a credible witness -- specifically, discrepancies

concerning the dates of the two shooting incidents and whether he

had reported both incidents to the police.                  The hearing officer,

however, based his credibility determination on Martins’s differing

testimony on direct and cross-examination as to the number of

shooting incidents at his home, not the dates of those incidents.

Further, the hearing officer noted contradictions between Martins’s

testimony that he was not home during the August shooting at his

home and the report he submitted, which described Martins as being


                                       -7-
inside the residence at the time of the shooting and seeing the

perpetrators attempt to enter his home.               The hearing officer also

found that Martins asserted that he reported both incidents to the

police, but later testified that he never reported the July 2002

incident.     While the latter arguably could be labeled as a “minor”

discrepancy,       the     former   are     discrepancies     that    relate    to

significant details of the incidents of alleged persecution that

form   the    basis   of    Martins’s     petition.      Unquestionably,       such

discrepancies are reasonably considered in assessing the veracity

of the petitioner’s testimony.                  Those two discrepancies alone

adequately support the hearing officer’s credibility determination.

Although we need not address whether reliance on any additional

“minor” inconsistencies was proper, we do note that any inaccuracy

or falsehood in a witness’s testimony may be considered by the

hearing officer, “without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of the applicant’s

claim.”      8 U.S.C. § 1158(b)(1)(B)(iii).

              The hearing officer’s decision to give no weight to the

documents submitted by Martins is also adequately supported by the

record.       As   the   hearing    officer       observed,   both   reports   are

inconsistent with Martins’s testimony regarding the August incident

that he was not at home during the shooting.             Further, the document

labeled “Incident Report from the Military Police of Minas Girais,

Brazil” lists Martins and three other males as victims on the first


                                          -8-
page and then, on the second page, seemingly describes the shooting

incident at Martins’s home referring only to the victim and his

wife.1    As to the second “police report,” which also describes the

August shooting, the hearing officer found, based on a review of

the document, that        the report was “so irrational that it is

unbelievable.”     Indeed, this document contains statements that

strongly suggest it is not even a police report.                The document

refers to “[o]ur reporters” being “at the scene and verif[ying]

through the common citizens that there was an attempt of ‘a gun

crime.’”    It indicates that details of the incident were garnered

from the “Police Occurrence Bulletin No. 31.031".2            In short, this

document reads like a news article and not the police report

Martins    represented   it    to   be.     The   hearing   officer   properly

concluded that both these documents were not credible.

            We conclude, based on the record, that the hearing

officer’s credibility determination was substantially supported by

the record and as a result, Martins failed to establish eligibility

for asylum.      We further note that Martins failed to show any

connection    between    his   alleged    persecution   and   the     Brazilian



     1
        It is not clear from the testimony and these documents
whether the shooting at Martins’s residence and the attempted
robbery were the same incident or whether the attempted robbery was
a separate incident involving Martins and the other men listed in
the report.
     2
       The other document submitted by Martins is titled Bulletin
No. 31.013.

                                      -9-
government.    Nikijuluw, 427 F.3d at 121 (“[A]n applicant qualifies

for asylum only when he suffers persecution that is the direct

result of government action, government-supported action, or [the]

government’s    unwillingness   or   inability   to   control   private

conduct.”).

            Given the lack of any credible evidence in support of

this petition, we conclude that the hearing officer’s determination

that there was no evidence to justify relief under the Convention

was also reasonable and substantially supported by the record.

Again, even accepting all of Martins’s evidence as credible,

Martins would still fail to show a likelihood that, if removed to

Brazil, he would be tortured3 “with the consent or acquiescence of

a public official who has custody or physical control [over him].”

Settenda, 377 F.3d at 94 (citations and internal quotation marks

omitted).

            The petition for review is denied.




     3
        To obtain relief under the Convention, Martins must show
“that it is more likely than not that he . . . would be tortured if
removed” to Brazil. 8 C.F.R. § 208.16(c)(2). Torture is defined
as “(1) an act causing severe physical or mental pain or suffering;
(2) intentionally inflicted; (3) for a proscribed purpose; (4) by
or at the instigation of or with the consent or acquiescence of a
public official who has custody or physical control of the victim;
and (5) not arising from lawful sanctions.” Settenda, 377 F.3d at
94 (citing 8 C.F.R. § 208.18(a)(1)).

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