                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         August 29, 2005
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    ABUBAKAR JAITEH,

                Petitioner,

    v.                                                   No. 04-9505
                                                      (No. A79-346-390)
    ALBERTO R. GONZALES,        *
                                                     (Petition for Review)

                Respondent.


                              ORDER AND JUDGMENT **


Before HARTZ, and BALDOCK, Circuit Judges, and BRIMMER, *** District
Judge.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral



*
      On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
***
      The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      An immigration judge (IJ) found that petitioner Abubakar Jaiteh, a native

and citizen of Sierra Leone, was not credible in attempting to establish that he is a

“refugee” within the meaning of 8 U.S.C. § 1101 (a)(42)(A), and therefore that he

was not eligible for asylum under 8 U.S.C. § 1158. The BIA adopted the IJ’s

order without opinion, and Mr. Jaiteh filed his petition for review with this court,

asking us to find that the IJ’s adverse credibility determination was error.

Because we find that the evidence does not compel a conclusion that the IJ erred,

we exercise our jurisdiction under 8 U.S.C. § 1252(a)(1), and deny the petition for

review.

                                   DISCUSSION

      When the BIA affirms a decision without opinion, it is the IJ’s decision that

becomes the final agency determination, and it is the IJ’s decision that we review.

Tsegay v. Ashcroft, 386 F.3d 1347, 1352 (10th Cir. 2004). In order to qualify for

asylum, an alien has the burden of first proving that he is a “refugee.” 8 U.S.C.

§ 1158(b)(1)(B). A “refugee” is defined as:

      any person who is outside any country of such person’s nationality
      . . . and who is unable or unwilling to return to, and is unable or
      unwilling to avail himself or herself of the protection of, that country
      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.

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8 U.S.C. § 1101(a)(42)(A). If the alien can prove refugee status, he must then

persuade the Attorney General to exercise his discretion and grant relief. 8

U.S.C. § 1158(b)(1)(A); Batalova v. Ashcroft, 355 F.3d 1246, 1254 (10th Cir.

2004); 8 C.F.R. § 208.13(a). The IJ found that Mr. Jaiteh had not established that

he is a refugee and denied asylum on that basis, so no discretionary determination

was required.

      Mr. Jaiteh is a citizen of Sierra Leone. He claims that in 1997 he and other

students from his father’s mosque were kidnaped by Revolutionary United Front

(RUF) rebel forces, and that he was forced to train with weapons and participate

in an attack on Freetown, the capital of Sierra Leone. After the attack he escaped

from the RUF and made his way to New York with the assistance of a false

Gambian passport. He stayed with friends of his father in New York for a couple

of weeks and then took a bus to Denver. He asserts that if he returns to Sierra

Leone, he will either (1) be killed by the government or allied forces, who believe

him to be a member of the RUF, or (2) be killed by the RUF in retaliation for his

escape. The evidence supporting Mr. Jaiteh’s asylum claim consists almost

entirely of his personal account of the events in question, as set forth in his

application, the asylum officer’s report regarding his asylum interview, and his

testimony before the IJ.




                                          -3-
      The IJ issued his oral decision the day of the hearing, specifically finding

that Mr. Jaiteh’s “story is not a credible one and . . . he is not a credible witness.”

Admin. R. at 89. The IJ found inconsistencies and implausibilities in Mr. Jaiteh’s

various accounts of his abduction. The IJ pointed to the fact that while he

testified that he was given only a day of weapons training and then forced to

participate in an attack on Freetown the next day, the asylum officer’s report of

Mr. Jaiteh’s asylum interview reflected a claim that he was given a week of

weapons training. The IJ also noted that although Mr. Jaiteh testified that “his

father was a permanent member of the party of the president of the country,” he

had previously stated in his asylum interview that he and his parents were not

members of any groups or organizations. Id. The IJ also did not believe that

rebels would arm students when the students “had no loyalty to [the rebels]

whatsoever,” since “[e]ven if [the rebels] could keep their eye on [the students]

and put them on the front lines, if the government got the upper hand it is obvious

that [the rebels] would have many enemies with automatic weapons.” Id. Nor did

the IJ believe that the government in Sierra Leone would kill Mr. Jaiteh for being

a rebel because:

      if[, as Mr. Jaiteh testified,] 200 people were removed and taken
      hostage from the Imam’s [mosque,] the government certainly would
      be aware of that, particularly since it was in the newspapers. And
      [Mr. Jaiteh’s] being the son of the Imam, it would certainly be easy
      for him to explain what had happened there.


                                           -4-
Id. at 90. Finally, the IJ found it significant that although one of the main reasons

that Mr. Jaiteh allegedly feared for his life was the newspaper coverage of both

his abduction and the attack on Freetown (including reports, which he had seen

after he escaped from the country, naming him specifically and containing his

picture), he failed to submit copies of any of these newspaper reports to the IJ.

      Mr. Jaiteh asks us to hold that the IJ erred in making his adverse credibility

finding, arguing that the IJ did not have a “legitimate articulable basis” for the

finding. Pet’r Br. at 10. He asserts that his “testimony [before the IJ] was

detailed and consistent and supported by information in the U.S. State Department

Country Report of Sierra Leone.” Id. at 5.

      An IJ’s credibility finding is a finding of fact and, like other findings of

fact, is subject to the substantial-evidence test. Elzour v. Ashcroft, 378 F.3d

1143, 1150 (10th Cir. 2004). Under that test the IJ’s finding will be upheld if

“supported by reasonable, substantial and probative evidence considering the

record as a whole.” Id. In addition, this court has joined “other circuits in

requiring that an IJ generally must give specific, cogent reasons for an adverse

credibility finding.” Wiransane v. Ashcroft, 366 F.3d 889, 897 (10th Cir. 2004)

(internal quotation marks omitted).




                                          -5-
       Our review of the record convinces us that the IJ’s adverse credibility

finding passes these tests. Mr. Jaiteh’s petition for review is DENIED.

                                                    Entered for the Court


                                                    Harris L Hartz
                                                    Circuit Judge




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