                Not for Publication in West's Federal Reporter

           United States Court of Appeals
                       For the First Circuit
No. 07-1799

                     DEBY LEDY MALONDA, ET AL.,

                              Petitioners,

                                     v.

              MICHAEL B. MUKASEY,* ATTORNEY GENERAL,

                               Respondent.


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


                                  Before

                        Lynch, Chief Judge,
                Tashima,** Senior Circuit Judge,
                    and Lipez, Circuit Judge.


     Yan Wang, on brief for petitioner.
     Peter D. Keisler, Assistant Attorney General, Civil Division,
U.S. Department of Justice, Terri J. Scadron, Assistant Director,
Office of Immigration Litigation, and Anthony W. Norwood, Senior
Litigation Counsel, on brief for respondent.



                              July 14, 2008




     *
          Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for his predecessor, former
Attorney General Alberto R. Gonzales.

     **
          Of the Ninth Circuit, sitting by designation.
          TASHIMA, Senior Circuit Judge. Deby Ledy Malonda, a.k.a.

Virginia Sandra Malonda, and her husband Erick Rawung, both natives

of Indonesia, petition for review of a decision by the Board of

Immigration Appeals (“BIA”) denying their applications for asylum,

withholding of removal, and protection under the Convention Against

Torture (“CAT”).    Malonda1 contends that the BIA’s denial of her

claims was not supported by substantial evidence, and that the

Immigration Judge’s (“IJ”) finding of removability violated her

right to due process.   We disagree, and deny the petition.

                          I.     Background

          Malonda first came to the United States in 1996.          While

here, she met Rawung, who had entered the country separately on

October 4, 1995, and the two married in 1999.        After last entering

the United States on July 4, 2001, Malonda filed an application for

asylum on May 20, 2002, on behalf of herself, as well as Rawung as

a derivative applicant.

          Malonda   identified    herself     as   “Deby   Ledy”   on   the

application form and reported her date of birth as April 14, 1965.

She claimed to have a valid visa at the time of her entry, also in

the name of Deby Ledy Malonda, and attached a copy of that visa,

which was valid from September 20, 2000, to September 19, 2005, to

her application.    On the other hand, she signed the application


     1
          Because Rawung is a derivative applicant for asylum, we
will refer to both petitioners collectively as “Malonda.”

                                  -2-
“Virginia Malonda” and printed that name below her signature.    In

Part C of the form, requesting “Information About Your Claim to

Asylum,” Malonda also identified herself as “Virginia.”   Further,

Malonda appended to her application an Affidavit, dated April 28,

2002, which began, “My name is Virginia Malonda.”   Several of the

other documents she attached to her application also identified her

as “Virginia,” including a United States visa issued on August 8,

1996, and expiring on November 8, 1996; a certificate of church

membership; her marriage certificate; her own birth and baptismal

certificates; and the birth certificates of her two American-born,

and two Indonesian-born, children.   Malonda was interviewed by an

Asylum Officer on February 4, 2004, and approved of corrections

made to her application identifying her as “Virginia Sandra” and

reporting her date of birth as February 27, 1967.   She also signed

her name as “Virginia Malonda” in the presence of the Asylum

Officer.

           In her application for asylum, Malonda stated that she

did not feel safe in Indonesia due to her Christian faith.      She

referred to one incident in particular, occurring on June 6, 2001,

where she was aroused from sleep by a person wearing “Jilbab the

Muslim robes that wanted to kill” her.   He pointed a steel object,

like a screwdriver, at her, but she was not fearful.   Instead, she

yelled, “Lord Jesus Help Me,” and received the strength to push him

away.   She referred to attached news articles chronicling the


                               -3-
persecution of Christians at the hands of Indonesian Muslims to

support   her   claim   that   Christians   were   being   persecuted   in

Indonesia.    She also stated that the government was not willing to

protect Christians, leaving people like her to fend for themselves.

           On February 12, 2004, Immigration and Customs Enforcement

(“ICE”) initiated removal proceedings against Malonda and Rawung by

filing Notices to Appear (“NTA”).        Malonda’s NTA charged her with

removability based on entering the country without possessing a

valid visa.     Rawung was charged with remaining in the country

beyond the expiration of his B-2 visa on April 3, 1996.         Although

Rawung conceded the factual allegations in his NTA, Malonda denied

that she entered the United States without a valid visa.

           In Malonda’s first appearance before the IJ on March 21,

2004, the IJ questioned Malonda’s counsel about Malonda’s denial of

the allegation that she did not possess a valid visa.         When asked

about the denial, her attorney stated that he denied the allegation

because he was not sure whether it was true.        He also stated that

he would concede removability if the government had proof of it and

denied that Malonda had asserted that she was legally present in

her application for asylum.      When the IJ stated that he was “going

to find that [Malonda] is removable, because it says so right in




                                   -4-
her   application     for   asylum[,]”     Malonda’s   attorney   responded,

“That’s fine, Your Honor.”2

           On November 14, 2005, the IJ conducted Malonda’s merits

hearing.   When asked whether she had ever experienced any problems

in Indonesia due to her religion, Malonda testified about the

incident occurring early in the morning on June 6, 2001.                   This

time, in her direct testimony, she described having been abruptly

awakened when a man wearing nothing but a bandana around his head

sat on her.      After pushing him off her, he started shouting or

chanting “Allah akbar,” a phrase “only a Muslim would say.”                 She

also testified that some people “tried to do evil things” to her

when she wore her “Cross necklace,” and that she was advised to

stop wearing it because people knew that Muslims were hunting for

Christians.   On cross-examination, however, she testified that her

assailant was naked from the waist up, but was wearing pants, which

he unzipped during the course of the attack.

           The   IJ   denied    Malonda’s    application   for    asylum    and

withholding of removal.        While noting that some confusion existed


      2
          During this discussion between the IJ and Malonda’s
counsel about her removability, the government asserted that
Malonda used her sister’s passport in conjunction with her
application for asylum. The IJ asked the government, “Wouldn’t
that be considered evidence that she is here illegally, or no?”
Before the government had the opportunity to answer the question,
the IJ proceeded with his questioning of Malonda’s counsel without
explicitly resolving the issue of whether Deby Ledy is Malonda’s
sister.

                                     -5-
as to Malonda’s charge of removability, the IJ determined that

Malonda, through counsel, conceded removability.              Turning first to

evidence of past persecution, the IJ deemed not credible Malonda’s

testimony concerning the central event in her asylum application,

the attempted rape or assault on June 6, 2001.               In particular, he

pointed to the discrepancy between Malonda’s statement in her

asylum application that the assailant wore a Muslim robe and her

testimony at the hearing that he was fully or partially naked.                 The

IJ reasoned that, as the only incident specifically referred to by

Malonda, her testimony on the subject should have been consistent

throughout.         Even assuming the truth of Malonda’s account, the IJ

disbelieved that the attack was religiously motivated, because

Malonda was residing in her brother-in-law’s Muslim household at

the time, giving the assailant no reason to believe that she was a

Christian.

              In finding that Malonda had failed to establish a well-

founded      fear    of   future   persecution,   the   IJ    noted    that    the

Department of State country and religious freedom reports generally

reported an improvement in conditions in Indonesia.               The IJ also

found   it    significant      that   Malonda’s   two   Indonesian     children

continued to live in the country without experiencing harm; that

Malonda had traveled to Indonesia three times since entering the

United States, once with her six-year-old, American-born daughter;

and   that    several     of   Malonda’s   siblings   continued   to    live    in


                                       -6-
Indonesia in relative safety. After denying Malonda’s application,

the IJ granted her voluntary departure.

             The BIA upheld the IJ’s denial of relief on April 24,

2007, in a per curiam opinion.           It found that the IJ’s adverse

credibility finding was supported by specific, cogent reasons, and

that the IJ provided a reasonable basis for rejecting Malonda’s

explanation of the discrepancies in her account.            It also upheld

the IJ’s finding of removability based on his reading of Malonda’s

asylum application, as well as the concession made by her counsel.

Finally, the BIA affirmed the IJ’s ruling on Malonda’s CAT claim

because of her failure to raise the issue on appeal.

                             II.     Discussion

             Where, as is the case here, “the BIA adopts the IJ’s

opinion and discusses some of the bases for the IJ’s decision, we

have authority to review both the IJ’s and the BIA’s opinions.”

Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006).          We review the

BIA’s decision under the deferential substantial evidence standard.

See id. Under this standard, we will uphold factual determinations

“unless the record is such as to compel a reasonable factfinder to

reach a contrary determination.” Pulisir v. Mukasey, 524 F.3d 302,

307   (1st   Cir.   2008).    When    reviewing   an   adverse   credibility

determination under this standard, “we narrowly inquire whether:

(i) the discrepancies articulated by the IJ and/or the BIA are

actually     present   in    the     administrative    record;    (ii)   the


                                      -7-
discrepancies generate specific and cogent reasons from which to

infer that petitioner . . . provided non-creditworthy testimony;

and (iii) petitioner failed to provide a persuasive explanation for

these discrepancies.”         Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir.

2008).

                         A.    Merits of the Claims

            Malonda   contends      that   the   BIA’s   adverse   credibility

determination, as well as its determination that she failed to

establish her asylum, withholding of removal, and CAT claims, were

not supported by substantial evidence.             We begin by considering

Malonda’s asylum claim, because “a failure to qualify for asylum

necessarily   forecloses       a   petitioner’s    ability   to    qualify   for

withholding of removal or protection under CAT.”                    Santosa v.

Mukasey, No. 07-2016, 2008 WL 2358004, at *2 (1st Cir. June 11,

2008); see also Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir.

2004) (noting that a withholding claim “demands that the alien

carry a more stringent burden of proof than does an asylum claim”).

            An applicant for asylum bears the burden of proving that

she is a refugee based upon either past persecution or a well-

founded fear of future persecution on the basis of one of five

statutory grounds.     See Wang v. Mukasey, 508 F.3d 80, 84 (1st Cir.

2007) (citing 8 U.S.C. § 1158(b)(1)). “[P]ast persecution requires

that the totality of a petitioner’s experiences add up to more than

mere     discomfiture,        unpleasantness,     harassment,      or   unfair


                                      -8-
treatment.”       Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.

2005).     Moreover, the claimed persecution must be “the direct

result    of    government    action,    government-supported     action,   or

government’s       unwillingness    or     inability    to   control   private

conduct.” Id. at 121. Finally, testimony deemed incredible by the

IJ may be disregarded or discounted.           See Pan v. Gonzales, 489 F.3d

80, 86 (1st Cir. 2007).

               Here, the evidence supports the IJ’s determination that

Malonda did not testify credibly concerning the attack on June 6,

2001.     The record indicates that she told three versions of the

same story: in one, her assailant wore a Muslim robe; in the

second, he was naked; and in the third, he wore pants.                  Other

details    differ    as    well:   in    her   asylum   application,   Malonda

described being approached by a man wielding a screwdriver, but at

her hearing, she claimed that she was roused from sleep when he sat

on her.    The IJ concluded that, as the single event supporting her

claim of religious persecution, it “should have been the focus of

her testimony and should have . . . been consistent throughout.”

Malonda did not indicate any reason preventing her from correcting

the discrepancy.          Therefore, we uphold the adverse credibility

determination.

               An adverse credibility determination can be fatal if an

applicant cannot meet her burden of proof without the incredible

testimony.      See Melhem v. Gonzales, 500 F.3d 78, 81 (1st Cir. 2007)


                                        -9-
(citing Pan, 489 F.3d at 86).            That is the case here.           Without

Malonda’s    testimony,     which   was    the      sole    evidence     of     past

persecution, the evidence amply supports the BIA’s finding that

Malonda     lacked   an    objectively      reasonable       fear   of        future

persecution.     Malonda “had to provide ‘credible, direct, and

specific    evidence’     that   would    support    a     reasonable    fear     of

individualized persecution.”         Santosa, 2008 WL 2358004, at *4

(quoting Guzman v. INS, 327 F.3d 11, 16 (1st Cir. 2003)).                 The BIA

found that the documentary evidence provided by Malonda did not

satisfy this requirement and, to the contrary, Malonda’s family who

remained in Indonesia lived in relative safety. See, e.g., Sela v.

Mukasey, 520 F.3d 44, 47 (1st Cir. 2008) (treating evidence of

family safety in the petitioner’s country of origin as evidence

undermining a future persecution claim).             Thus, the evidence does

not compel reversal of the BIA’s determination.

            Having failed to establish her eligibility for asylum,

Malonda’s application for withholding of removal necessarily fails

as well.    See Makhoul, 387 F.3d at 82.         Because Malonda “makes no

argument with respect to the CAT claim beyond the introductory

assertion that the record establishes the merits of her claim[] for

. . . protection pursuant to the CAT[,]” we deem her CAT claim

waived.    Sok v. Mukasey, 526 F.3d 48, 52 (1st Cir. 2008) (internal

quotation marks, alterations, and citation omitted).




                                    -10-
                               B.   Due Process

            Although   Malonda’s     brief     advances     theories     that    her

hearing    before   the   IJ   violated      her    due    process   rights      and

effectively compelled her to be a witness against herself, her

principal argument is that the government’s failure to amend her

NTA to allege the correct ground of removability prejudiced her in

some way.     That is, in any event, the only claim of error she

preserved    below;    consequently,      it   is    the    only   one   we     have

jurisdiction to review.        See Makhoul, 387 F.3d at 80 (relying on 8

U.S.C. § 1252(d)(1)’s exhaustion requirement to hold that “theories

not advanced before the BIA may not be surfaced for the first time

in a petition for judicial review of the BIA’s final order”).

            The BIA rejected Malonda’s due process claim for three

reasons.    First, it found that rather than contesting the IJ’s

finding of removability, Malonda’s counsel conceded it.                   Second,

the BIA found that Malonda failed to assert or demonstrate that she

was prejudiced by the alleged error.           Third, relying on Matter of

Salazar, 17 I. & N. Dec. 167 (BIA 1979), it held that an IJ may

properly rule on a ground of removability that is first revealed at

a hearing, as long as the petitioner has the opportunity to meet

it.   We review due process claims de novo.               See Pulisir, 524 F.3d

at 311.

            We have previously recognized that aliens subject to

removal proceedings are entitled to due process, including “the


                                     -11-
right to notice of the nature of the charges and a meaningful

opportunity to be heard.”         Kaweesa v. Gonzales, 450 F.3d 62, 69

(1st Cir. 2006) (citing Choeum v. INS, 129 F.3d 29, 38 (1st Cir.

1997)) (internal quotation marks omitted).                In order to advance a

due   process    claim,     however,    a    petitioner        “must    allege    some

cognizable      prejudice    fairly     attributable       to     the    challenged

process.”    Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004); see

also Grigous v. Gonzales, 460 F.3d 156, 163 (1st Cir. 2006)

(applying the prejudice requirement to a claimed violation of a due

process right to adequate notice).

            We need not decide whether, and under what circumstances,

the   government’s     failure     to       amend   a    NTA    might    violate    a

petitioner’s      right     to   adequate       notice     of     the    charge    of

removability, because Malonda has made no showing that she was

prejudiced by any failure to amend the NTA.                Accordingly, we must

affirm the BIA’s decision and deny the petition.

            The petition for review is DENIED.




                                        -12-
