IMG-143                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-2477
                                     ___________

                        MOHAMED RIZWAN KAMURDEEN,
                                              Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                     Respondent
                   ____________________________________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A098-580-337)
                    Immigration Judge: Honorable Henry S. Dogin
                    _______________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 1, 2010

              Before: RENDELL, FISHER and GARTH, Circuit Judges.

                                 (Filed: April 13, 2010)
                                       _________

                                      OPINION
                                      _________

PER CURIAM

      Mohamed Rizwan Kamurdeen petitions for review of the Board of Immigration

Appeals’ (“BIA”) final order of removal. We will deny the petition.
                                             I.

       Kamurdeen is a citizen of Sri Lanka who arrived in the United States in 2003 on a

visitor’s visa, which he overstayed. He concedes removability, but seeks asylum,

withholding of removal and relief under the Convention Against Torture on the grounds

that he suffered past mistreatment in Sri Lanka and fears future mistreatment if returned.

       According to Kamurdeen’s asylum application statement (A.R. 326-28), he and his

family lived in an apartment next to their landlord’s home. On May 19, 2000, two ethnic

Tamil school friends of Kamurdeen visited him at his family’s apartment. His landlord

and the landlord’s two sons, who “did not like” ethnic Tamils, came to his apartment and

asked him not to let his friends stay the night. A fight between the landlord’s sons and

Kamurdeen’s friends ensued, but the landlord and his sons ultimately left the scene.

Approximately one hour later, army personnel who were friends of the landlord’s son

Sisira visited the landlord’s house, then came to Kamurdeen’s apartment, beat his Tamil

friends, beat Kamurdeen and his father when they intervened, and told his friends to leave

immediately or be arrested under suspicion of association with the rebel Tamil Tigers.

Kamurdeen’s friends then left.

       On June 5, 2000, “in the midnight,” Kamurdeen heard screaming from the

landlord’s house and saw masked men with weapons abducting his son Sisira and driving

him away in a van. The landlord and his other son then came to Kamurdeen’s apartment,

told him that the assailants were Tamil, and accused his friends of being involved. Army



                                             2
officers arrived shortly afterwards, questioned Kamurdeen about the incident, and then

arrested him and took him to an army camp. While there, they accused him of supporting

the Tamil Tigers and interrogated him about his Tamil friends, his landlord’s son’s

whereabouts, and the assassination of a prominent politician. They also beat and tortured

him, at one point hanging him from a bar and pouring water on his head when he

collapsed. The army ultimately released him on August 15, 2000, in exchange for a bribe

paid by his father, but instructed him to report back once per week until further notice.

       Kamurdeen left Sri Lanka the next month, working for a period of time in Dubai

and then Kuwait. He obtained a visa to travel to the United States while in Kuwait with

the assistance of an “agent,” who told him he would have to return to Sri Lanka and travel

to the United States from there. Kamurdeen did so, and stayed in a hotel near the airport

for approximately two weeks until leaving for the United States on September 14, 2003.

       Before the IJ, Kamurdeen submitted an affidavit from his mother, which was

substantially in accord with his statement. He also testified consistently with his

statement and his mother’s affidavit, with the significant exceptions discussed below.

The IJ assumed that Kamurdeen stated grounds for asylum and withholding of removal on

the basis of imputed political opinion. He denied Kamurdeen’s claims, however, because

he found Kamurdeen not credible on the basis of numerous inconsistencies and

implausibilities in his testimony. He also faulted Kamurdeen for failing to produce

certain corroborating evidence. The BIA upheld the adverse credibility determination on



                                             3
the basis of several factors on which the IJ relied, but did not mention any concern with

corroboration. Kamurdeen petitions for review.1

                                             II.

       The BIA identified three deficiencies that it deemed collectively sufficient to

support the IJ’s adverse credibility determination. (BIA Dec. at 1-2.) First, and “[m]ost

strikingly” according to the BIA, is an inconsistency regarding the date and circumstances

of Kamurdeen’s arrest. Kamurdeen stated in his asylum application, and his mother

stated in her affidavit, that the army arrested him and took him to the army camp on the

night of June 5, 2000, after questioning him about the abduction of his landlord’s son.

(A.R. 170, 327.) Before the IJ, however, Kamurdeen testified that the army left that night

without arresting him and “went away” because it could not locate his friends. (A.R. 110-

11.) After the army left, Kamurdeen spoke with his father about moving to a new house,

and he and his father informed the landlord that the family would be moving. (A.R. 111,




       1
         We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Our jurisdiction
generally extends only to the BIA’s order, but we may also review the IJ’s decision in
pertinent part where “the BIA both adopted the IJ’s adverse credibility determination and
discussed some, but not all, of the underlying bases” for that determination. Xie v.
Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We need only review the BIA’s decision in
this case, however, because it independently discussed certain factors that it deemed
collectively sufficient to support the IJ’s ruling. We do so for substantial evidence, and
may disturb the BIA’s adverse credibility determination only if “‘any reasonable
adjudicator would be compelled to conclude to the contrary.’” Lin v. Att’y Gen., 543
F.3d 114, 119 (3d Cir. 2008) (citation omitted). Because Kamurdeen filed his application
prior to the effective date of the REAL ID Act, the inconsistencies on which the BIA
relied “must not be ‘minor’ and must go to the heart of [his] claim.” Id.

                                             4
151-52.) Kamurdeen also testified that he did not go to work the following day but

instead stayed home. (A.R. 153.) He testified that the army returned to his house and

arrested him two months later on August 5, 2000. (A.R. 110-11.)

       When the IJ asked Kamurdeen about this inconsistency, he first testified that the

army had arrested him on June 5 as set forth in his statement, then testified again that it

was August 5, and finally testified that he had been released rather than arrested on

August 5 (as opposed to August 15, as claimed in his statement and his mother’s

affidavit). (A.R. 156, 166.) When further pressed, Kamurdeen testified only that the

inconsistency was the result of “(Indiscernible.) Confusion.” (A.R. 166.)

       This inconsistency strikes us as the most glaring and material inconsistency of

record. Kamurdeen, however, barely acknowledges this inconsistency on review, and

neither offers any explanation for this inconsistency nor argues that the BIA erred in

relying on it. He also “d[id] not address this glaring inconsistency on appeal” before the

BIA. (BIA Dec. at 1). Thus, he has both waived and failed to exhaust any challenge to

the BIA’s reliance on this inconsistency.2


       2
         Nevertheless, the BIA did not err in relying on this inconsistency. The record
confirms the inconsistency, and it clearly goes to the heart of Kamurdeen’s claim. Cf.
Gabuniya v. Att’y Gen., 463 F.3d 316, 322-23 (3d Cir. 2006) (six-day discrepancy
regarding date of arrest did not go to the heart of the claim where alien immediately
explained that he had mistakenly referred to date of an assassination that triggered the
arrest). Kamurdeen also offered no explanation for the inconsistency except to testify that
it was the result of “(Indiscernible.) Confusion.” (A.R. 166.) Kamurdeen did not
elaborate on that “confusion” before the BIA or in his brief in this Court and makes no
argument regarding what appears as “indiscernible” on the transcript.

                                              5
       Second, the BIA relied on additional discrepancies regarding the circumstances of

the June 5 incident. Kamurdeen asserted in his statement that he first heard screaming

from his landlord’s house “in the midnight” on June 5, that he then looked out the

window and witnessed Sisira’s abduction, and that his landlord and the army came to his

apartment thereafter. (A.327.) Similarly, his mother stated in her affidavit that the family

heard the screaming “while we were fast asleep.” (A.R. 170.) Before the IJ, however,

Kamurdeen testified that Sisira was kidnapped at around 7:30 p.m. and that he and his

father were awake and sitting outside when he witnessed the abduction. (A.R. 153-54.)

       Kamurdeen argues with little elaboration that the IJ improperly found an

inconsistency on the basis of a mere absence of “definitive testimony” regarding the time

of the incident. Our review of the record, however, confirms that the BIA permissibly

found an inconsistency on these points. Kamurdeen does not argue that the record can be

read in a way that reconciles the apparent inconsistencies, and the record does not compel

such a reading. Kamurdeen also does not argue that these inconsistencies are

insufficiently related to his claim to support an adverse credibility determination, and we

do not believe they are.

       Third, the BIA found Kamurdeen’s account of voluntarily returning to Sri Lanka

for two weeks without consequence incompatible with his claim that he was tortured

there and that the army had ordered him to report on a weekly basis. Under some

circumstances, voluntary return to a country where a petitioner claims to have been



                                             6
tortured can undermine his or her claims of past persecution and fear of future

persecution. See Jean v. Gonzales, 461 F.3d 87, 91 (1st Cir. 2006); Toure v. Att’y Gen.,

443 F.3d 310, 318 (3d Cir. 2006).

       In this case, Kamurdeen argues that the IJ and BIA disregarded his explanation for

returning – i.e., that he did so on the insistence of the agent who procured his United

States visa, then remained in hiding at the hotel near the airport. As Kamurdeen testified,

the agent promised him that he would be safe if he did not contact anyone in Sri Lanka,

including his family, and he followed that instruction by having no contact with anyone

but his agent, including his mother. (A.R. 129-30, 160.) His mother, however, stated in

her affidavit that she visited Kamurdeen at his hotel. (A.R. 171.) Kamurdeen offered no

explanation for that inconsistency except to deny that the visit occurred. (A.R. 160.) The

BIA rejected Kamurdeen’s explanation on the basis of his mother’s affidavit, and we

cannot say that the record compelled it to do otherwise.

       The BIA held that these factors were sufficient to support the IJ’s adverse

credibility determination. It then went on to note that the record was “replete” with other

inconsistencies and discussed two additional bases for the IJ’s decision. Because the BIA

concluded that the deficiencies discussed above are sufficient to support the adverse

credibility determination, however, and because the record does not compel a contrary




                                             7
conclusion, we need not reach the additional inconsistencies.3 Accordingly, we will deny

the petition for review.4




       3
         We note, however, that we perceive no error in the BIA’s reliance on them. Both
Kamurdeen’s statement and his mother’s affidavit refer to their “landlord” and use the
pronouns “he,” “his” and “him” in doing so. (A.R. 169-70, 326-27.) Kamurdeen initially
did the same in his testimony. (A.R. 99-103, 107-08.) On further questioning, however,
he began to refer to a “landlady” and use feminine pronouns, and he testified that it had
been the family’s female landlord, not her husband, who was involved in the incidents
recounted above. (A.R. 132-34.) In addition, regarding the May 19 incident, Kamurdeen
asserted in his statement that the landlord’s “sons,” plural, attacked his friends and that
his friends responded by attacking his landlord’s sons. (A.R. 326.) His mother stated the
same in her affidavit, and also stated that she intervened to stop the fighting along with
Kamurdeen and his father. (A.R. 169). Before the IJ, however, Kamurdeen testified that
only his landlord’s oldest son Sisira was involved in the altercation (A.R. 144), and that
only he and his father intervened and that “my mother didn’t get involved” (A.R. 145).
       4
        In his brief, Kamurdeen challenges the IJ’s insistence on certain corroboration.
The BIA, however, relied solely on inconsistencies and implausibilities in Kamurdeen’s
testimony and neither faulted Kamurdeen for failing to corroborate his testimony nor
adopted that portion of the IJ’s ruling in which the IJ did so. See Chukwu, 484 F.3d at
191 (noting that credibility and corroboration are distinct issues). Thus, we do not reach
the issue of corroboration because it formed no basis for the BIA’s decision. Cf. id. at
188, 191 (reaching issue where BIA adopted the IJ’s decision).

                                             8
