                Not for Publication in West's Federal Reporter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. 03-1272

                              HENRY KIYAGA,
                               Petitioner,

                                      v.

                 JOHN ASHCROFT, Attorney General,
                            Respondent.


               ON PETITION FOR REVIEW OF AN ORDER OF
                  THE BOARD OF IMMIGRATION APPEALS


                               Before
                       Selya, Circuit Judge,
                 Stapleton,* Senior Circuit Judge,
                    and Howard, Circuit Judge



     Monique H. Kornfeld, for petitioner.
     Margaret K. Taylor, with whom Robert D. McCallum, Jr.,
Assistant Attorney General, Civil Division, Mark C. Walters,
Assistant Director, and Jacqueline R. Dryden, Office of Immigration
Litigation, United States Department of Justice, Civil Division,
were on the brief, for respondent.




                             October 8, 2003




*   Of the Third Circuit, sitting by designation.
           STAPLETON, Circuit Judge.

                                I.

           Henry Kiyaga (“Petitioner”), a citizen of Uganda, appeals

the decision of the Board of Immigration Appeals (“BIA”), which

affirmed, without opinion, the Immigration Judge’s (“IJ”) denial of

his application for asylum. The IJ held that Petitioner was barred

from being granted asylum by 8 U.S.C. § 1101(a)(42)(B) which

stipulates that an alien is not a refugee for purposes of asylum if

he has persecuted others on account of nationality or political

opinion. Petitioner challenges this holding. He also alleges that

the BIA erred in applying its summary affirmance procedure to his

case.

                               II.

           Petitioner’s military service in Uganda lasted from 1985

to 1999.   In 1985, he began his military career by joining the

Federal Democratic Army (“FDA”), a guerilla group opposing then-

Ugandan President Otobe.     Another guerilla group, the National

Resistance Army (“NRA”), was commanded by Yoweri Museveni. The NRA

toppled the existing Ugandan government in 1986 and integrated the

FDA and other rival factions into one army. Petitioner served with

the NRA, which later changed its name to the Ugandan People’s

Defense Force (“UPDF”), from 1986-1999.    Petitioner was placed in

the mobile unit of the Fourth Division.        During that period,

Petitioner was involved in several regional conflicts in Uganda,


                                -2-
Rwanda, and Zaire.             Zaire subsequently became the Democratic

Republic of Congo (“the Congo”).

              In    1999,   Petitioner      was    imprisoned      by       the   UPDF.

Petitioner asserts that he was jailed for complaining about the

UPDF’s presence in the Congo, and the death of so many UPDF

soldiers in the conflict.          Petitioner was charged with planning to

plot a coup against the UPDF,            conspiring to kill fellow soldiers,

conspiring     to    control    Kisangani,      Congo,    and    insubordination.

Kiyaga asserts that he was tortured while in prison.                         At the IJ

proceeding, he provided photographic evidence of his injuries that

he   claims    resulted     from   the    torture.       After    a    few    days    of

imprisonment, Kiyaga was allowed to escape.                     In October, 1999,

Kiyaga fled to the United States.

                                         III.

              Kiyaga applied for asylum, claiming that he had suffered

past persecution and had a well-founded fear of future persecution.

8 U.S.C. § 1158(b)(1).          His application was denied.             Although the

IJ concluded that Petitioner had carried his burden of showing past

persecution,       he   held   that   asylum      was   barred    by    8    U.S.C.    §

1101(a)(42)(B), which provides as follows:

              The term “refugee” does not include any person
              who ordered, incited, assisted, or otherwise
              participated in the persecution of any person
              on account of race, religion, nationality,
              membership in a particular social group, or
              political opinion.

After concluding that Petitioner had the burden of proving he was

                                         -3-
a refugee, the IJ found that Petitioner’s insistence that he had

not persecuted others on political grounds was simply not credible

and, accordingly, insufficient to carry that burden.               The IJ went

on to find that the “documentary evidence in the record, as well as

the inconsistencies within the [Petitioner’s] testimony regarding

the killing of civilians, establish by a preponderance of the

evidence that the [Petitioner] persecuted others.”

            More     specifically,    the   IJ    found     that   “the   record

overwhelmingly establish[ed] that the UPDF, including the Fourth

Division, was directly responsible for human rights violations

against civilians, on account of their nationality and political

opposition towards the ruling government.”           The court also pointed

to specific atrocities committed by members of Petitioner’s unit

and division, which occurred while Petitioner was a member of that

force.    The IJ, citing Fedorenko v. United States, 449 U.S. 490,

494 (1981), held the Petitioner accountable for the actions of his

mobile brigade unit because “he was present when these incidents

happened, he was issued a uniform and armed with a rifle to

patrol.” The court found that although the Petitioner claimed that

he never harmed civilians, the fact that he supplied soldiers with

food,    clothing,    and   other    supplies    assisted    the   soldiers   in

persecuting others. The IJ stated that “[b]ecause the [Petitioner]

did not act to stop civilian killings, he enabled persecution on

account of nationality and political opinion.”               Id.   Finally, the


                                      -4-
IJ noted that, although “activity directly related to a civil war,

such as forced recruitment, destruction of property, military

attacks or mere membership in an organization is not necessarily

persecution,”1 the Petitioner “was involved in activities beyond

the ‘natural occurrences’ of civil war.” The IJ based this finding

on   the    fact   that   Petitioner    was   a   member   of    a   governmental

organization that participated in gross human rights violations on

account of nationality and political opinion.

              The IJ ordered Petitioner removed to Uganda, and the BIA

summarily affirmed the IJ’s decision without opinion.                  8 C.F.R. §

3.1(e)(4) (now 8 C.F.R. § 1003.1(e)(4)).

                                       IV.

              Kiyaga timely petitioned this Court for review of the

BIA’s judgment.      We have jurisdiction to review the final order of

removal pursuant to 8 U.S.C. § 1252(a).             When the BIA applies its

streamlined affirmance-without-opinion procedure, see 8 C.F.R. §

1003.1(e)(4), we review the decision of the IJ.                 See Albathani v.

INS, 318 F.3d 365, 378 (1st Cir. 2003) (stating that a court bases

its review on the IJ’s decision and the record on which it is based

when the 8 C.F.R. 3.1(a)(7)2 streamlining procedure is used);                 El

Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003) (applying



      1
      See Matter of Rodriguez-Majano, 19 I. & N. Dec. 811 (BIA
1988).
      2
          Now 8 C.F.R. § 1003.1(a)(7).

                                       -5-
Albathani to the affirmance without opinion procedure in 8 C.F.R.

§ 3.1(e)(4)).

                                       V.

               To be eligible for asylum, an alien has the burden of

showing that he or she is a “refugee.” 8 U.S.C. § 1158(b)(1);

Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003).             As we have

indicated, under § 1101(a)(42)(B), an alien cannot be a “refugee”

if   he   or    she   has   assisted   or   otherwise   participated   in   the

persecution of others on account of political opinions.             Moreover,

as we have further noted, the IJ concluded that if there is

evidence of such assistance or participation, the “applicant [has]

the burden of proving by a preponderance of the evidence that he or

she did not so act.”         As is evident from Petitioner’s briefing and

as expressly confirmed by Petitioner’s counsel at oral argument,

Petitioner does not challenge any of these legal propositions. His

argument is rather that the record will not support a finding that

asylum is barred by § 1101(a)(42)(B).            We cannot agree.

               Evidence was produced before the IJ tending the show that

the Petitioner had assisted in the persecution of others on account

of a prohibited ground.           This included evidence that the UPDF

forcefully relocated civilians into “protected camps.”              Civilians

were beaten if they refused to comply.           See Amnesty International,

Uganda:        Breaking the Circle:         Protecting Human Rights in the

Norther War Zone (1999).          If civilians left the protected camps,


                                       -6-
they were assumed to be members of the opposing force.                     Evidence

also indicated that the UPDF mobile troops had shelled villages

where civilians had returned from the protected camps to cultivate

crops.   Finally, there was evidence that UPDF soldiers in the

Fourth Division were involved in the lynching of civilians on

August 16, 1996, in Gulu, Uganda.              This was Petitioner’s military

division and he admits to being in Gulu at this time.                 Additional

evidence indicated that the mobile patrol in which Petitioner

served was involved in killing 30 children in the Kitgum District

in March of 1998, when it ambushed a group of opposing forces who

were holding the children captive.             Finally, evidence was produced

that Petitioner had indicated to an asylum officer in an interview

that he had killed or harmed non-combative civilians on four

different occasions in Uganda.

          In response to this evidence, Petitioner attempted to

carry his burden of showing he was a refugee by offering his own

testimony that he had never participated in persecuting others.

The IJ concluded, however, that this testimony was not credible.

This credibility determination effectively resolves Petitioner’s

asylum claim    because    no    other    evidence     was   presented      to   the

Immigration Court that could prove by a preponderance of the

evidence that       Petitioner   did     not    persecute    or   assist    in   the

persecution    of     others.    Therefore,       if   the   IJ’s    credibility

determination survives our scrutiny, we must deny the petition for


                                       -7-
review.

            The    IJ’s    credibility      determination       is    reviewed     for

substantial       evidence    and   “must       be   upheld    if     supported     by

reasonable,    substantial      and   probative       evidence       on   the   record

considered as a whole.”         Mendes v. INS, 197 F.3d 6, 13 (1st Cir.

1999) (internal quotations omitted); see also Mediouni v. INS, 314

F.3d 24, 26-27 (1st Cir. 2002).           We will reverse a finding of fact,

such as a credibility determination, only if “the evidence is so

compelling that no reasonable fact-finder could fail to reach the

contrary conclusion.”         Oliva-Muralles v. Ashcroft, 328 F.3d 25, 27

(1st Cir. 2003).

            The     IJ’s     conclusion     that     Petitioner’s         denial    of

participation in persecution lacks credibility was based primarily

on the fact that Petitioner provided inconsistent and evasive

responses to questions regarding his activities while serving in

the UPDF.     As the IJ explained:

            When asked about the one time he served on the
            front line, he says he never killed any
            civilian.   On another occasion, he says he
            never killed any civilians intentionally,
            although he may have killed a civilian
            accidentally.   When asked by the Service on
            cross-examination, he was unable to give a
            straight answer.

The IJ also pointed out the Assessment to Refer, which asserted

that   Petitioner     had     admitted     to    killing      civilians     on     four

occasions, and the statement about civilians having to die if they

were caught between enemy forces.               There is substantial evidence

                                      -8-
supporting these conclusions of the IJ.

          In the Assessment to Refer, the asylum officer who

interviewed Petitioner asserted that Petitioner had admitted to

killing non-combative civilians on four separate occasions in

Uganda.   He also quoted the Petitioner as stating, “if they

[civilians] were in the middle, they had to die, ... we were

ordered to do so, we had to fight.”

          At Petitioner’s first hearing, he provided the following

responses to the government’s questions:

          Q.   Sir, did you see civilians being killed
          while you were involved in combat in the army?

          A.   Yes, I did.

          . . .

          Q.   Sir, did you ever kill civilians during
          your period in the army?

          A.    No, in time I have never killed a
          civilian.   I have never killed a civilian
          intentional unless it happened by accident[.]
          [B]ut I have never killed any civilian
          intentionally.

          . . .

          Q. Sir, did you ever – do you believe that
          you ever killed civilians accidentally?

          A.   Well, it could be, I cannot say no or yes,

          . . .


          At Petitioner’s second removal hearing on April 5, 2001,

he stated the following:


                                -9-
         Q. Sir, is it your testimony that throughout
         your 13 year military career, you were never
         involved in the killing of civilians?

         A. Personally, the entire period I was in the
         military, I have never killed a civilian nor
         tortured one.

         . . .

         Q.   Sir, did you tell the asylum officer
         during your asylum interview that you were
         involved in the killing of civilians?

         A.   That question was raised to me and I
         answered him directly that I have never
         participated in the killing of civilians.

         Petitioner was confronted with the Assessment to Refer

memo, written by the asylum officer, quoting the “if [civilians]

were in the middle, they had to die,” language.     The following

colloquy took place:

          Q.   Sir, . . . the document says that the
          applicant admitted that he has killed or
          harmed non-combat civilians on four different
          occasions.

          . . .

          Q. Sir, is now your testimony that you did
          not say that you had killed or harmed
          civilians on four different occasions?

          . . .

          A. Unless the officer did not understand the
          language I tried to explain to him, but I
          remember the question was raised to me and I
          answered that I have never participated in the
          killing of civilians.

          The Petitioner explained that the interview with the

asylum officer was conducted in English, and that he had had a

                              -10-
difficult time communicating in that interview. Then the following

exchange occurred:

           A.    Sir, did you say and I am quoting
           “Civilians were in the middle and they had to
           die?”

           . . .

           Q. Yes, when the question was raised to me, I
           answered him and said, and tried to explain to
           him that when there is fighting going on and
           the civilians are in the middle, they can
           easily be killed, but I have never told him
           that I have killed any civilian and I
           personally have never intentionally killed any
           civilian.

           Petitioner cites Hartooni v. INS, 21 F.3d 336, 342 (9th

Cir.   1994),   for   the   proposition   that   the    IJ    must   provide   a

legitimate articulable basis for his credibility determination. He

asserts that the IJ failed in this respect because he limited his

analysis   of   Petitioner’s    credibility      to    only   one    area,   his

testimony about whether he had killed civilians, when the whole of

his testimony was otherwise consistent and believable.

           Hartooni holds that the IJ “must have a legitimate

articulable basis to question the petitioner’s credibility, and

must offer a specific, cogent reason for any stated disbelief.” 21

F.3d at 342.    As we have heretofore explained, however, the IJ did

provide a legitimate articulable basis to question the Petitioner’s

credibility.

           Petitioner also quotes a page from the Basic Law Manual,

produced by the INS, as authority for the proposition that “a claim

                                   -11-
may be credible even though the claimant later submits information

not submitted at the first examination.” U.S. Dep’t of Justice,

Immigration and Naturalization Serv., The Basic Law Manual 105

(1994).   Petitioner alleges that he did not have an interpreter at

the first examination, which resulted in perceived inconsistencies

with later interviews in which an interpreter was provided.                        He

asserts his testimony at the removal proceeding was not truly

inconsistent,    but    simply   an   attempt       to   clarify     his   earlier

statements in a logical and direct manner.

          The discrepancy in Petitioner’s testimony does not simply

reflect information that the Petitioner forgot to include in his

first interview, which he is later elaborating or clarifying, as

the cited passage in the Basic Law Manual appears to contemplate.

It is an inconsistency in the testimony that makes it plausible,

even likely, that the Petitioner is telling less than the whole

truth regarding his conduct toward civilians.

          Petitioner also alleges that the inconsistency in his

testimony was not material because he consistently testified that

he did not intentionally kill civilians.                  He insists that an

inconsistency must “shut off a line of inquiry which is relevant to

the alien’s eligibility and which might well have resulted in a

proper determination that he be excluded.”               Matter of Bosuego, 17

I. & N. Dec. 125 (BIA 1979); accord Solis-Muela v. INS, 13 F.3d

372, 376-77     (10th   Cir.   1993).        Even   if   we   were   to    apply    a


                                      -12-
materiality standard, however, Petitioner’s inconsistent testimony

regarding his participation in the killing of civilians was clearly

relevant     to    an     inquiry    into       the    presence      or     absence    of

participation in          persecution.

             Finally, Petitioner cites Qiu v. Ashcroft, 329 F.3d 140,

156 (2d Cir. 2003), for the proposition that courts “have ...

prodded immigration tribunals to give petitioners a chance to

respond      to   the     adjudicator’s         concerns     about        ‘missing’    or

inconsistent evidence or testimony.”                  Petitioner asserts that the

IJ failed to give his asylum application the benefit of doubt and

assist    him     in   clarifying       and    substantiating      his     case.      But

Petitioner was given an opportunity to respond to the government’s

concerns about the inconsistent testimony.                    His answers to this

questioning were not consistent or straightforward.

             We    hold    that   the    IJ’s       credibility    determination       is

supported by substantial evidence.                  The Petitioner’s testimony was

not only inconsistent with the testimony he gave at an earlier

interview, it was inconsistent during the removal hearing itself.

He at first states, unequivocally, that he killed no civilians

during his military service.                  He then allows that he may have

“accidentally” killed some.              We would also note, although the IJ

was not explicit in basing his credibility determination on this

point, that Petitioner testified that he had no reason to believe

that   the    Fourth      Division      of    the    UPDF   had   killed     civilians.


                                             -13-
However, evidence in the record indicated that members of the

Fourth Division participated in the lynching of civilians in Gulu

at the time Petitioner was stationed there.          See Aguilar-Solis v.

INS, 168 F.3d 565, 570-71 (1st Cir. 1999) (stating that it is not

required that “a reviewing court must take every applicant’s

uncontradicted testimony at face value, for testimony is sometimes

internally inconsistent or belied by prevailing circumstances” and

that “when a hearing officer who saw and heard a witness makes

adverse credibility determination and supports it with specific

findings,    an   appellate   court     ordinarily    should   accord   it

significant respect”).

            For these reasons, the IJ’s credibility determination

withstands Petitioner’s challenge.          Having found that adverse

credibility determination supported by substantial evidence, the

Petitioner did not meet his burden of showing that the persecution-

of-others bar did not apply to him.        Therefore, we will deny the

petition for review.

                                  VI.

            Petitioner argues that the BIA erred in applying 8 C.F.R.

3.1(e) (now 8 C.F.R. § 1003.1(e)), to affirm the result of the IJ’s

decision without opinion.

            8 C.F.R. § 1003.1(e)(4), the section used by the BIA to

affirm without opinion states, in pertinent part:

            Affirmance without opinion. (I) The Board
            member to whom a case is assigned shall affirm

                                 -14-
          the decision of the Service or the immigration
          judge, without opinion, if the Board member
          determines that the result reached in the
          decision under review was correct; that any
          errors in the decision under review were
          harmless or nonmaterial; and that

          (A) The issues on appeal are squarely
          controlled by existing Board or federal court
          precedent and do not involve the application
          of precedent to a novel factual situation; or
          (B) The factual and legal issues raised on
          appeal are not so substantial that the case
          warrants the issuance of a written opinion in
          the case.

          Petitioner asserts that the IJ’s decision was not in

conformity with the law or applicable precedents and was the result

of clearly erroneous factual determinations.       It is a subject of

some debate whether we may review the BIA’s decision to apply the

streamlining regulation, itself.       See Albathani, 318 F.3d at 378

(“Were there evidence of systemic violation by the BIA of its

regulations, this would be a different case.    We would then have to

face, inter alia, the INS’s claim that the decision to streamline

an immigration appeal is not reviewable by the courts because these

are matters committed to agency discretion.”). Because we conclude

that the IJ’s credibility determination is clearly supported by

substantial evidence, the Petitioner failed to meet his burden of

showing his “refugee” status.      Therefore, we shall dispose of

Petitioner’s argument without deciding whether we may review the

BIA’s decision to apply the streamlining regulation.

          The petition for review is DENIED.


                                -15-
