                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1734




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                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 03-1734


                   EVELEAN SOBHI MALACK NASSRALAH,

                                               Petitioner

                                          v.

                    JOHN ASHCROFT, ATTORNEY GENERAL
                     OF THE UNITED STATES OF AMERICA,

                                               Respondent


                            Petition for Review of an Order
                         of the Board of Immigration Appeals
                                     (A74 808 862)


                     Submitted Under Third Circuit LAR 34.1(a)
                                 January 15, 2004

                Before: Sloviter, Rendell and Aldisert, Circuit Judges.

                               (Filed January 28, 2004)


                             OPINION OF THE COURT


ALDISERT, Circuit Judge.

      Evelean Sobhi Malack Nassralah filed this petition for review challenging the

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February 21, 2003 Board of Immigration Appeals (“Board”) affirmance of the decision

of the Immigration Judge (“IJ”) denying Nassralah’s application for asylum and

withholding of deportation. In this petition for review, we must decide whether the

Board’s determination that Nassralah failed to establish asylum eligibility by credible

testimony is supported by substantial evidence. We will deny the petition for review.

       Nassralah is a twenty-five year old woman, native and citizen of Egypt, who

entered the United States as a visitor in 1996. She was permitted to remain here until

December 3, 1996, but remained beyond that period and was placed in deportation

proceedings. She applied for asylum and withholding of deportation, and in the

alternative, voluntary departure.

       In the hearing before the IJ, Nassralah admitted the allegations of fact and the

charge of deportability, but claimed that as a Coptic Catholic she would be persecuted if

returned to Egypt. Nassralah testified in her own behalf and presented three other

witnesses to testify in her behalf – her sister-in-law, Eiman Youssef, her mother in law,

Miriam Tadros, and her husband, Ghobrial “Victor” Youssef.

       Because we are writing only for the parties who are familiar with the record and

the proceedings before the IJ and Board, we will limit our discussion to the issues of law

and the determinations of the IJ which were corroborated by the Board.

                                             I.

       Where, as here, the Board conducts a de novo review of an IJ’s decision, we


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review the Board’s order as the final agency determination, and we also review the IJ’s

decision to the extent that the Board has adopted or agreed with it. Abdulai v. Ashcroft,

239 F.3d 542, 548-549 (3d Cir. 2001). Here, the Board stated:

              We agree with the Immigration Judge that the respondent
              failed to demonstrate by credible testimony that she qualifies
              for asylum under section 208(a) of the Act, 8 U.S.C. §
              1158(a), or withholding of deportation to Egypt under section
              243(h) of the Act, 8 U.S.C. § 1253(h) . . . .

(App. at 4.) Accordingly, we review the IJ’s decision as well as the Board’s order.

Abdulai, 239 F.3d at 548-549.

       An alien has the burden of supporting her asylum claims through credible

testimony. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “Whether an asylum

applicant has demonstrated past persecution or a well-founded fear of future persecution

is a factual determination reviewed under the substantial evidence standard.” Id. This

Court must sustain the Board’s adverse credibility determination if there is substantial

evidence in the record to support it. Id. We have recently explained the substantial

evidence test as follows:

              [T]he question of 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 . . . .
              Thus, where we review [the Board’s] credibility
              determination, we must ask whether the determination is
              supported by evidence that a reasonable mind would find
              adequate. We look at an adverse credibility determination to
              ensure that it was ‘appropriately based on inconsistent
              statements, contradictory evidences, and inherently

                                             3
              improbable testimony . . . in view of the background evidence
              on country conditions.’

Dia v. Ashcroft, -- F.3d -- 2003 WL 22998113, at *13-*14 (3d Cir. Dec. 22, 2003) (en

banc) (citations omitted). “Generally, minor inconsistencies and minor admissions that

reveal nothing about an asylum applicant’s fear of his safety are not an adequate basis for

an adverse credibility finding.” Gao, 299 F.3d at 272 (internal quotations and citation

omitted). Moreover, the Board must provide specific, cogent reasons for reaching

credibility determinations. Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998).

       The dispositive question here is whether the credibility problems are so minor and

inconsequential that no reasonable factfinder could conclude that they undermine the

story’s credibility. INS v. Elias-Zacarias, 502 U.S. 478, 483-484 (1992). We turn to the

IJ’s evaluation of Nassralah’s testimony and the accompanying determination that she

lacked credibility, which the Board adopted.

                                            II.

       The IJ delivered a detailed twenty-four page opinion discussing the testimony of

all the witnesses and concluded:

                      The credibility of the respondent is of extreme
              importance in assessing the alien’s claim. I have pointed out
              numerous conflicts between the respondent’s testimony and
              either both or either one [sic] of her applications for asylum.
              I’ve pointed out numerous contradictions between the
              information contained in her two applications for asylum and
              numerous conflicts between what she told the asylum officer
              at her interview and the information she either gave to the
              Court via live testimony or in her application for asylum.

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              And, the respondent’s witnesses are even at odds with the
              respondent in some portions of their testimony. This is a
              totally incredible claim. The respondent is doubtlessly lying
              to the Court, totally fabricating an asylum application where
              there is no basis for asylum at all. The court considers this
              application and the testimony of the respondent and her
              witnesses to be nothing short of reprehensible in attempting
              to perpetrate a fraud against this court and against the
              Government of the United States . . . .
                      Insofar as I have found the respondent and her
              application to be totally incredible, there is no way that I can
              find that she has established a prime facie case for asylum or
              for withholding of deportation. Accordingly, her asylum
              application will be denied.

(App. at 28-29.) We agree with the IJ’s determination that Nassralah failed to establish

through credible testimony that she was the victim of past persecution in Egypt and had a

well-founded fear of future persecution on account of her religion.

       We add these comments. Reduced to its essence, Nassralah contends that as a

member of the Christian Coptic Orthodox church her life will be threatened by Muslim

fundamentalists if she is returned to Egypt. The IJ, however, provided specific and

cogent reasons in support of his finding that Nassralah was not credible, including

references to particular instances of inconsistent testimony, the omissions of facts from

her asylum applications and interviews, contradictions among her accounts and the

general implausibility of her contentions, all of which went to the heart of Nassralah’s

asylum claim.

       In her November 1996 asylum application, Nassralah claimed that she was a

widow and that her husband was deceased. Later, in her 1997 application, she changed

                                              5
her story and stated that her husband was alive and willing to testify for her. On her first

and second application, Nassralah claimed repeatedly that she was raped by Muslim

extremists. As the IJ noted, however, Nassralah and her husband both testified that

Nassralah was not raped.

       When read as a whole, Nassralah’s testimony and the testimonies of the three

other witnesses do not corroborate Nassralah’s story regarding prior incidents involving

Muslim extremists and her fears of returning to Egypt. Nassralah’s mother-in-law,

Miriam Tadros, testified that Nassralah and her son Victor were married in a rushed and

secret ceremony because they feared they would be attacked by a Muslim fundamentalist

leader who wanted to marry Nassralah. The IJ found Tadros’ testimony unresponsive

and unconvincing because she was not able to tell the court more information concerning

this Muslim leader, including his name. Tadros also testified that Nassralah had told her

that she was physically assaulted by a Muslim extremist in December of 1995. The IJ,

however, noted that only with the prompting of Nassralah’s counsel did Tadros change

her testimony to reflect that Nassralah was sexually assaulted.

       Nassralah’s husband, Victor Youssef, testified that ten Muslim fundamentalists,

including Al Gamma, who Nassralah claims had threatened to kill her if she did not

marry him, broke in and attacked Nassralah and Youssef at their home in Algami after

Nassralah and Youssef were married. Youssef testified that his wife, Nassralah, was

sexually molested, though not raped, and that he was beaten, lost consciousness and


                                             6
awoke in a shed tied to a pole. Although he escaped, Youssef testified that he decided to

remain in hiding and not try to find his wife or contact the police out of fear he would be

traced. The IJ found Youssef’s testimony to be confusing and unconvincing, noting that

“[t]he last that [the husband] remembered his wife . . . was her being molested by

fundamentalists, being mistreated, and it doesn’t make a scintilla of sense to the Court

that he would not try to make some contact with her, first of all, to determine whether or

not she was alive or dead, and second, to see her condition.” (App. at 19.)

       Although Nassralah testified that she went to the police and hospital after she and

Youssef were attacked by Muslim fundamentalists, the IJ noted that she did not submit

any documentary evidence to support these claims. See Gao, 299 F.3d at 272 (explaining

that “the INS may require documentary evidence to support a claim, even from otherwise

credible applicants, to meet their burden of proof”). Nassralah testified that two days

after her secret marriage to Youssef, her family was beaten and their house ransacked by

Muslim fundamentalists, but this incident was not mentioned in her affidavit. Nassralah

also testified that her husband contacted her through her brother on March 20, 1995, yet

in November 1996, she told the asylum officer that her husband was deceased. These

inconsistencies are not minor or inconsequential, as they go to the heart of Nassralah’s

asylum claim based on past persecution in Egypt, and therefore, the IJ did not err in

finding these inconsistencies to impugn Nassralah’s credibility.

       Moreover, both the IJ and the Board rejected as unconvincing Nassralah’s


                                             7
explanation for the discrepancies among her testimony, her interview, and her asylum

applications – that the asylum officer proceeded in English and only used the interpreter

during parts of the interview, which led to her confusion. Noting, however, that

Nassralah later conceded that she used the interpreter when she did not understand what

was being asked, the IJ explained that “the Court is not clear how the respondent would

not be able to understand the questions using an interpreter that she brought with her.”

Because a reasonable factfinder could reach the conclusion that Nassralah’s explanation

for the discrepancies is insufficient, the agency’s decision should not be disturbed.

       Lastly, we disagree with Nassralah that the Board’s order is vague and fails to

specifically adopt the decision and reasoning of the IJ. The Board explicitly agreed with

the IJ’s credibility determination: “We agree with the Immigration Judge that the

respondent failed to demonstrate by credible testimony that she qualifies for asylum . . .

or withholding of deportation . . . ” under the Act. (App. at 2.) As we have explained,

the IJ’s finding rested upon several inconsistencies, discrepancies and shortcomings in

Nassralah’s testimony. Because the Board’s adoption and affirmance of the IJ’s decision

was supported by substantial evidence in the record, we cannot hold that the Board’s

adverse credibility determination was unreasonable.

                                            III.

       Nassralah’s petition for review of the order of the Board will be denied.




                                             8
TO THE CLERK:

    Please file the foregoing opinion.




                                    s/Ruggero J. Aldisert
                                Circuit Judge




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