                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 16-2913
                                     ____________

                         AJIYOSOLA AKANDE SOLOMON,
                                    Petitioner

                                            v.

             ATTORNEY GENERAL UNITED STATES OF AMERICA,
                               Respondent
                            ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                              (Board No. A072-168-877)
                          Immigration Judge: Steven Morley
                                     ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 17, 2017

       Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

                             (Opinion Filed: April 6, 2017)
                                    ____________

                                      OPINION**
                                     ____________




      
        Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit,
assumed senior status on February 1, 2017.
      **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.

       Ajiyosola Akande Solomon petitions for review of the Board of Immigration

Appeals’ (BIA) decision denying his application for asylum under § 208 of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1158, withholding of removal under §

241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and protection under Article 3 of the

Convention Against Torture (CAT), as implemented by 8 C.F.R. § 1208.16-18. We will

deny the petition.

                                              I.

       Solomon, a native of Nigeria, attempted to enter the United States in 1998 using a

passport issued to Olaoluwa Victor Ibironke.1 He lied to immigration officials about his

purpose for traveling to the U.S. and was sent back to Nigeria and prohibited from

entering or attempting to enter the U.S. for five years. Three months later, Solomon

reentered the U.S. as a nonimmigrant tourist, using a passport issued to Ajiyosola Akande

Solomon. Solomon thereafter married Joanne Hamilton, a legal permanent resident of the

U.S. In 2004, four days after Hamilton became a naturalized U.S. citizen, Solomon filed a

petition seeking status as a battered spouse of a U.S. citizen (Form I-360), and applied to

register as a permanent resident (Form I-485). Solomon’s Form I-485 application

indicated that he had never been previously married, that he had never been known by

any other name, and that he had never attempted to procure an immigration benefit by

1
 Although his true identity is unclear, see infra Section III. B., for purposes of this
opinion we will refer to Appellant as Solomon.

                                              2
fraud or been removed. On December 10, 2008, United States Citizenship and

Immigration Services (USCIS) granted Solomon’s application and adjusted his status to

lawful permanent resident on the basis of his approved I-360 petition.

       On January 3, 2012, Solomon filed an application for naturalization under § 319 of

the INA. On his application, Solomon disclosed, for the first time, that he had been

previously married to Folashade Ibironke, but maintained that he had never been known

by any other name. USCIS discovered that, at the time he married Hamilton, he was still

legally married to Folashade, that in 1998 he attempted to enter the U.S. using a different

identity (Ibironke), and that when he made that attempt, he was removed from the U.S.

Had Solomon disclosed on his Form I-485 that, at the time he married Hamilton he was

still legally married to Folashade, he would have been found ineligible for lawful

permanent-resident status. Accordingly, USCIS denied his naturalization application for

failure to demonstrate that he was lawfully admitted for permanent residence.

       In July 2013, removal proceedings were initiated against Solomon, who at the time

of adjustment of status was inadmissible based on having sought an immigration benefit

through fraud. At the beginning of the removal proceedings, Solomon submitted an

application for asylum. Solomon claimed that he was persecuted in Nigeria for being a

Christian and that he had suffered physical attacks. Ultimately, the Immigration Judge

(IJ) found Solomon not credible and denied his applications for asylum, withholding of

removal, and CAT protection. Solomon appealed the IJ’s decision to the BIA. The BIA


                                            3
dismissed Solomon’s appeal, determining that Solomon was properly found removable as

charged. Solomon timely petitioned for review.

                                             II.

       The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and (b)(9). We have

jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA adopts the findings of the

IJ and discusses some of the bases for the IJ’s opinion, we review both decisions.2 We

uphold the BIA’s factual findings if they are “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.”3 We review the BIA’s legal

determinations de novo.4

                                            III.

                                             A.

       We first consider whether, under § 246(a) of the INA, the IJ lacked authority to

order Solomon removed. Section 246(a) provides that “[i]f, at any time within five years

after the status of a person has been otherwise adjusted . . . to that of an alien lawfully

admitted for permanent residence, it shall appear to the satisfaction of the Attorney

General that the person was not in fact eligible for such adjustment of status, the Attorney

General shall rescind the action taken granting an adjustment of status.”5 Solomon argues

that § 246(a) bars the ordering of removal five years after a petitioner’s improper

2
  Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
3
  Lie v. Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005) (citation omitted).
4
  Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008).
5
  8 U.S.C. § 1256(a).

                                             4
adjustment of status. We disagree. The statute of limitations bars the “initiation of

removal proceedings after five years if based on improperly granted [lawful permanent

residence] status.”6 Solomon fraudulently obtained lawful permanent resident status in

December 2008. His removal proceedings were initiated in July 2013. Because the

proceedings were initiated within the five-year period, the IJ properly exercised

jurisdiction over Solomon’s case.

                                              B.

       We next determine whether the IJ erroneously found that Solomon’s claims in

support of his asylum application were not credible. An adverse credibility determination

is a finding of fact.7 We will affirm unless the evidence “was so compelling that no

reasonable factfinder could fail to find requisite fear of persecution.”8

       The Attorney General has the discretion to grant asylum to “refugees.”9 A

“refugee” is a person unable or unwilling to return to his or her country of origin

“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.”10

Asylum seekers “have the burden to establish their eligibility for asylum through credible




6
  Saliba v. Att’y Gen., 828 F.3d 182, 197 (3d Cir. 2016) (emphasis added).
7
  Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003).
8
  INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
9
  8 U.S.C. § 1158(b).
10
   Id. at § 1101(a)(42).

                                              5
testimony.”11 If, after considering the “totality of the circumstances, and all relevant

factors,”12 the IJ determines that an asylum seeker has not met his burdens of proof and

persuasion, the IJ must point to “specific, cogent reasons” that support his adverse

credibility determination.13

       Here, the IJ based his adverse credibility determination on Solomon’s inconsistent

testimony, material discrepancies between Solomon’s testimony and documented

evidence, and his evasive demeanor. We find that substantial evidence supports the IJ’s

adverse credibility determination. First, as noted by the IJ, Solomon’s true identity is

undetermined. Solomon testified at the removal hearing that his true name is Ajiyosola

Akande Solomon, but he previously signed a sworn statement stating that his true name is

Olaoluwa Victor Ibironke.

       Second, the IJ noted a number of inconsistencies that undercut Solomon’s claimed

fear of persecution. Solomon initially testified that, in the four-year period after he

secured permanent-resident status, he traveled to Nigeria three times. Solomon ultimately

changed his testimony after he was confronted with documentary evidence showing that

he traveled to Nigeria at least five times for a total of 140 days. An asylum seeker’s

repeated willful and voluntary trips to his home country can undermine an assertion of




11
   Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).
12
   8 U.S.C. § 1158(b)(1)(B)(ii).
13
   Dia, 353 F.3d at 250; see 8 U.S.C. § 1158(b)(1)(B)(iii).

                                           6
well-founded fear of persecution there.14 Also, at Solomon’s 1998 interview at the U.S.

border (as Ibironke), he stated that he had no fear of persecution, despite testifying at his

removal hearing that, one month before the 1998 interview, he was brutally attacked

based on his religious beliefs.15

       Third, when asked, Solomon admitted that he lied under oath in the past to avoid

removal and would do so again in the future. The IJ concluded that Solomon’s testimony

demonstrates his willingness to “engage in post-[hoc] rationalization” and do “whatever

it takes” to stay in the United States.16 Based on these inconsistencies there is substantial

evidence to uphold the IJ’s adverse credibility determination.17

       Still, the IJ solicited evidence to rehabilitate Solomon’s testimony and bolster his

claimed fear of persecution.18 Solomon produced medical documentation to corroborate

an alleged attack, including a letter from a Nigerian hospital written 16 years after the

referenced attack and a letter from a doctor in the U.S. But the letter from the Nigerian

hospital did not identify its source of information or mention Solomon’s claimed injuries,


14
   See Jean v. Gonzales, 461 F.3d 87, 91 (1st Cir. 2006).
15
   Although we view inconsistencies between the airport interview and removal hearing
with caution when the arriving alien is not proficient in English, see Balasubramanrim v.
INS, 143 F.3d 157, 163 (3d Cir. 1998), Solomon is college educated and speaks English
well.
16
   A.R. 103.
17
   See Xie, 359 F.3d at 242-43 (upholding an adverse credibility determination based on
“inconsistencies and omissions” in the record).
18
   See Sandie v. Att’y Gen., 562 F.3d 246, 253 (3d Cir. 2009) (“It is reasonable to expect
corroboration for testimony that is central to an applicant’s claim and easily subject to
verification.”).

                                             7
and the letter from the U.S. doctor did not identify the basis for the doctor’s expertise.

Solomon also produced unsworn letters from his friends, who were not subject to cross-

examination, and whose identities could not be established through passports, licenses, or

addresses. After changing his testimony regarding how many attacks he reported to the

police, Solomon testified that he could not produce any police reports to substantiate his

claims. Finally, Solomon’s country condition evidence focused on the religious violence

in northern Nigeria, while Solomon testified that he lived in the southwest.

       Because the evidence was not “so compelling that no reasonable factfinder could

fail to find requisite fear of persecution” we will uphold the BIA’s adoption of the IJ’s

adverse credibility determination.19 Solomon has failed to demonstrate that the IJ or BIA

erred in rejecting his application for asylum, withholding of removal, and CAT relief.20

                                             C.

       Finally, Solomon contends that the IJ conducted the proceedings in a manner that

violated his due process rights. In this context, due process requires that aliens threatened

with deportation have the “right to a full and fair hearing that allows them a reasonable

opportunity to present evidence on their behalf.”21 To establish a due process violation, a




19
   Elias-Zacarias, 502 U.S. at 483-84.
20
   Because we, like the BIA, find that the credibility determination is dispositive of the
issue of the asylum application’s timeliness, we do not reach the issue.
21
   Abdulrahman, 330 F.3d at 596 (internal quotation marks omitted).

                                              8
petitioner “must show that substantial prejudice resulted from the alleged procedural

errors.”22

       Solomon argues that the IJ’s determinations that Solomon did not suffer past

persecution or have a well-founded fear of future persecution indicate the IJ’s bias

against him. Disagreeing with the IJ’s interpretation of the evidence is insufficient to

demonstrate that the IJ’s ultimate determination was the result of bias or prejudgment.23

       Solomon also argues that the IJ’s failure to consider how Solomon’s migraine

medication affected his testimony demonstrates bias. Solomon does not dispute that,

before his direct examination, the IJ asked him if he was taking medication that would

impair his ability to testify and that he responded that he was not. Solomon instead claims

that he answered in the negative because he forgot that he took a pill the night before.

Solomon did not reveal his concerns about the medication to the IJ until two weeks after

the hearing, at which point he did not submit evidence of how the medication could have

affected his testimony. Solomon did not produce such evidence on appeal to the BIA. In

its absence, we cannot conclude that the IJ’s failure to consider the medication’s effect on

Solomon’s testimony was a procedural error that caused prejudice. Because Solomon has

not established that the IJ failed to act impartially or deprived him of an opportunity to

testify fully, his due process claims fail.


22
  Delgado-Sobalvarro v. Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010).
23
  See Matter of D-R-, 25 I. & N. Dec. 445, 455 (B.I.A. 2011) (finding adjudicator is not
required to interpret evidence in the manner advocated by the respondent).

                                              9
                                    IV.

For the reasons set forth above, we will deny Solomon’s petition for review.




                                    10
