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


7-22-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2317




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-2317


                                 NANTHI BEGUM,

                                               Petitioner

                                          v.

                        JOHN ASHCROFT, Attorney General
                              of the United States

                                               Respondent


                    On Petition for Review of a Final Order of the
                            Board of Immigration Appeals
                                  (No. A73-162-793)


                     Submitted Under Third Circuit LAR 34.1(a)
                                   July 1, 2004

           Before: AMBRO, ALDISERT and STAPLETON, Circuit Judges

                                (Filed: July 22, 2004 )




                                     OPINION


AM BRO, Circuit Judge

      Nanthi Begum petitions for review of the order of the Board of Immigration
Appeals (“BIA”) to affirm denial by an Immigration Judge (“IJ”) of her applications for

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). Central to the IJ’s decision was his finding that Begum’s claims of a well-

founded fear of persecution upon return to her native country were not credible. Because

the IJ’s adverse credibility determination was supported by substantial evidence, we deny

her petition for review.

                           I.   Facts and Procedural Posture

       Begum, a native and citizen of Bangladesh, entered the United States in December

1992. Eight months later, she filed an initial application for asylum claiming that she was

compelled to leave Bangladesh because she feared the government would arrest her for

membership in the Jatiyo political party. In April 2000, the Immigration and

Naturalization Service1 (“INS”) issued Begum a notice to appear, charging her with

removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who entered the United States

without inspection or parole. At a hearing before the IJ, Begum conceded removability

but requested relief in the form of asylum, withholding of removal, and CAT protection,

and in the alternative voluntary departure. She submitted a new asylum application

explaining that because she had organized poor and illiterate women on behalf of the




  1
   As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has since ceased to exist as an agency within the Department of
Justice and its enforcement functions have been transferred to the Department of
Homeland Security.

                                             2
Jatiyo Party, she and her family had been subject to assaults and threats by religious

fundamentalists.

       After a merits hearing in July 2001, the IJ denied all of Begum’s requested relief

because he did not find her claims to be credible. He even denied her voluntary departure

relief, finding that because of her false testimony she lacked good moral character. In

April 2003 the BIA affirmed the denial of asylum, withholding of removal, and CAT

relief, but vacated the denial of voluntary departure.2

                                       II.   Analysis

       Begum now appeals the decision of the BIA. Because the BIA adopted the IJ’s

credibility finding, we review the IJ’s finding for whether “any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Put another

way, we will sustain the IJ’s finding, and thus affirm the BIA’s decision, if the IJ’s

finding was supported by substantial evidence. Reynoso-Lopez v. Ashcroft, 369 F.3d 265,

278 (3d Cir. 2004). In the context of adverse credibility findings such as the one at issue

here, we give “substantial deference” when “specific cogent reasons” support the finding.

Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir. 2002).

       The IJ found that Begum could not establish a well-founded fear of persecution, as



  2
   Begum does not appeal from the BIA’s grant of thirty-day voluntary departure period.
She does, however, seek a stay of the departure period pending this appeal (i.e.,
permission to depart within 30 days of this decision). Though the thirty-day voluntary
departure period had long since lapsed before she sought a stay, we nonetheless grant this
request.

                                              3
required for the discretionary relief of asylum, 8 U.S.C. §§ 1101(a)(42)(A), 1158(a),

because her testimony was incredible.3 The IJ offered several “specific cogent reasons”

to support his adverse credibility finding.

       First, he noted discrepancies in Begum’s hearing testimony about various

encounters with members of the rival fundamentalist Jamat Islam Party. In describing an

incident in which Jamat Islam Party members broke into her home, she first testified that

the event occurred in June 1990 and later testified that it occurred in June 1992. She

offered precise testimony about when she fled her home, 11:10 p.m., but could only

narrow the date of the attack down to a particular month.4 In describing a second incident

in which Begum and a co-worker were attacked in a rickshaw by unknown individuals,

she again testified precisely as to time of day, 9:15 a.m., but vaguely as to date, stating

that it occurred sometime in May 1992.

       Next, the IJ noted discrepancies between Begum’s hearing testimony and her

initial application for asylum that she filed in 1993. Her application did not report any of



  3
    Because the IJ found Begum ineligible for asylum, he did not need to consider
whether she met the higher standard of proof required for withholding of removal. He
also concluded that the adverse credibility finding prevented her from establishing that it
was more likely than not that she would be tortured if returned to Bangladesh, as required
for CAT relief.
  4
   The IJ also noted that Begum testified on direct examination that she fled her home
through a window, but on cross-examination said she left through a back door. On
appeal, Begum claims that this apparent discrepancy resulted from a mistranslation. Even
assuming that this issue is properly resolved in Begum’s favor, substantial evidence still
supports the IJ’s adverse credibility finding.

                                              4
her children, but at the hearing she testified that she has three children, all of whom were

born before 1993. Also, her application does not mention the break-in, the rickshaw

incident, or the rival Jamat Islam Party, all of which she testified form the basis of her

well-founded fear of persecution.

       Begum’s second asylum application, filed in 2000, also contradicted her hearing

testimony. While the application stated that her home was broken into by Jamat Islam

Party members in May 1992, she testified at the hearing that a break-in occurred in June

1992 (after earlier stating June 1990). The IJ did not believe her proffered explanation

for the inconsistency—that there were two separate break-ins, one in May 1992 and one

in June 1992—because the initial application reported only one. Begum explained that

she only reported the May 1992 break-in because she was at home when it happened, but

that she was not at home for the June 1992 break-in. But this explanation contradicted

her earlier testimony that during the June 1992 attack she fled from her house at 11:10

p.m. Also, her application stated that the rickshaw incident occurred on June 22, 1992,

but she testified that it occurred sometime in May 1992. And while the asylum

application claimed that her father had been held at knife-point in his home by Islamic

fundamentalists, she testified at that hearing that her father had not experienced problems

with Jamat Islam Party members. Begum’s testimony also contradicted affidavits in the

record. She testified that she was a Jatiyo Party field worker, but a third-party’s affidavit

stated that she was a “joint secretary” of the Party.



                                               5
       The IJ found that Begum’s claims of political involvement were also undermined

by her lack of knowledge about Bangladesh’s recent political history. Even though she

alleged that she joined the Jatiyo Party soon after it was established, Begum could not

accurately testify when the Jatiyo Party was established. She also testified that Khaleda

Zia became the president of Bangladesh in 1990, while the State Department report in the

record says that this occurred in March 1991.

       Finally, the IJ found that Begum’s demeanor was not one of a person who was

telling the truth. He noted that she fidgeted and picked at her fingers during the

Government’s “difficult” questions on cross-examination.

       Begum argues on appeal that the IJ can only base a false testimony determination

on statements made under oath at the hearing, and thus improperly considered the

contents of her application, citing 8 U.S.C. § 1101(f)(6) and Kungys v. United States, 485

U.S. 759, 780 (1988). Under § 1101(f)(6), an alien will not be regarded as having “good

moral character” if she has presented false testimony. But the good moral character

finding is a predicate to certain forms of relief—like naturalization, see 8 U.S.C. §

1427(a)(3), and suspension of removal, see former 8 U.S.C. § 1244(a)(1)—which are not

at issue here. In Begum’s case, the IJ did not deny her asylum application on the basis of

a finding that she lacked good moral character, so he was not limited to considering only

her statements under oath. Consequently, Begum’s argument that the IJ did not properly

make a false testimony determination, because he considered more than just her testimony



                                              6
under oath, is not relevant to the issue on appeal.5

                                     III.   Conclusion

       In conclusion, the IJ’s “specific cogent reasons” for not believing Begum’s

claims of persecution amount to substantial evidence required to support an adverse

credibility finding. All of the inconsistencies and omissions between and within her

testimony and her asylum applications undermine Begum’s claim that she fears

persecution in Bangladesh on account of her political opinion. The BIA correctly

affirmed the IJ’s denial of asylum, withholding of removal, and CAT protection. We

therefore deny Begum’s petition for review.




  5
    Begum also complains that the IJ did not admit six police reports because they had not
been certified as required under 8 C.F.R. § 287.6(b). We reject Begum’s unsupported
argument that the IJ should have permitted her to explain what efforts, if any, were made
to secure the proper certification because the certification requirement under § 287.6(b) is
mandatory.

                                              7
