Filed: Jul. 20, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-20-2005 Bicak v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-3009 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Bicak v. Atty Gen USA" (2005). 2005 Decisions. Paper 806. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/806 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-20-2005 Bicak v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-3009 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Bicak v. Atty Gen USA" (2005). 2005 Decisions. Paper 806. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/806 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-20-2005
Bicak v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3009
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Bicak v. Atty Gen USA" (2005). 2005 Decisions. Paper 806.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/806
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3009
NECMEDDIN BICAK,
Petitioner
v.
ALBERTO GONZALES,* Attorney General
of the United States,
Respondent
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A79-419-817
Submitted Under Third Circuit LAR 34.1(a)
July 1, 2005
Before: ROTH, RENDELL, and BARRY, Circuit Judges
(Opinion Filed: July 20, 2005)
OPINION
*
Attorney General Alberto Gonzales has been substituted for former Attorney General John
Ashcroft, the original respondent in this case, pursuant to Fed. R. App. P. 43(c).
BARRY, Circuit Judge
Necmeddin Bicak, a native and citizen of Turkey, seeks asylum on the ground that
his former girlfriend’s family has sought, and supposedly will seek, retribution for his
attempt to marry her. We will deny the petition for review.
I. Background
This is a story of two young people who wanted to get married despite the
objections of the young woman’s family. Bicak, a Muslim, fell in love with the young
woman and asked her family for permission to marry her. The family refused and, in
hopes that her family would eventually support their union, Bicak asked her to move into
the house he shared with his family. She agreed, but shortly after she moved in, members
of her family came to Bicak’s house to retrieve her. According to Bicak, two members of
that group were armed and threatened to kill him if she did not return home.
The young woman did return home, but her family was apparently still angered
that her honor had been “besmirched” by having lived with a man to whom she was not
married. The family allegedly swore to “avenge this with blood” and told Bicak “we will
kill that which you love.” Bicak contends that the family made threatening phone calls
and harassed him in public.
After ten to twelve days of such treatment, Bicak decided to leave Turkey. He
claimed that he could not report the threats to the police because the young woman’s
family was “connected,” and that he could not move to another part of Turkey because he
2
would be required to register in his new town, and the family would find him. Therefore,
he left Turkey in late June of 2001, and arrived in the United States on October 7, 2001.
That same day, the Immigration and Naturalization Service (“INS”)1 interviewed
Bicak at the airport. He told the INS officer that he left Turkey because he was “scared”
of the young woman’s family, but that he had “never been persecuted by the Turkish
government or any other officials in Turkey.” A169-70. On October 11, 2001, Bicak
again explained that he left Turkey for fear he would be killed by his former girlfriend’s
family, and claimed he had no idea why her family did not approve of him. The next day,
though, Bicak was again interviewed, this time with an attorney present, and stated that
the two families had opposing political and religious views, and that was why his former
girlfriend’s family did not want him to marry her.2
On October 1, 2002, Bicak filled out an application for asylum and withholding of
removal, and requested protection under the United Nations Convention Against Torture
(“CAT”). He stated that he was seeking asylum based on his religion and membership in
a particular social group, and that he had been threatened by his former girlfriend’s family
because of “the difference in her family and mine in terms of political and religious
1
On March 1, 2003, the Immigration and Naturalization Service’s functions were
transferred to the Department of Homeland Security. See 6 U.S.C. § 271 (2002).
2
Bicak conceded that he was not affiliated with a political party in Turkey, but stated
that his, and his family’s, political views were aligned with the conservative Fazilet Party,
which ceased to officially exist in 2001. His former girlfriend’s family apparently
ascribed to a more liberal, left-leaning party.
3
outlook.” A218. He made similar statements during his testimony before the IJ, but
provided no corroborating evidence for any part of his story.
Based on his finding that Bicak was not credible, the Immigration Judge (“IJ”)
denied his application on all grounds, and also found his application for asylum frivolous.
In a per curiam opinion issued June 24, 2004, the BIA affirmed in all respects except the
IJ’s conclusion that the asylum application was frivolous.3 Bicak filed a petition for
review with this Court on July 13, 2004.
II. Legal Analysis
We have jurisdiction to review the petition pursuant to 8 U.S.C. § 1252(a).
Because the BIA wholly deferred to the IJ’s findings on adverse credibility and
ineligibility for relief, we “review the IJ’s decision to assess whether the BIA’s decision
to defer was appropriate.” Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001); see
also Xie v. Ashcroft,
359 F.3d 239, 242 (3d Cir. 2004) (explaining that, when the BIA
“substantially relied” on the adverse credibility finding of the IJ, a court has jurisdiction
to review both opinions ).4 We review any factual findings, including a finding of
3
The issue of whether the asylum application was frivolous is not part of this appeal.
4
Here, the BIA stated that:
“We find support in the record for the [IJ’s] adverse credibility
finding. The inconsistencies noted by the [IJ] are found in the
record and involve major events which go to the heart of the
respondent’s claim. A persecution claim that lacks veracity cannot
satisfy the burdens of proof and persuasion necessary to establish
eligibility for asylum and withholding of removal.”
A2 (internal citations omitted).
4
adverse credibility, under the substantial evidence standard. See Xie, 359 F.3d at 243; 8
U.S.C. § 1252(b)(4) (“administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”).
An adverse credibility determination may not be the result of speculation, but
instead must be based on evidence in the record. See Gao v. Ashcroft, 299 F.3d 266, 272
(3d Cir. 2002).5 Minor inconsistencies that do not go to the heart of the asylum claim do
not provide a sufficient basis for such a determination. See
id. Here, the IJ’s adverse
credibility determination, for which the BIA found support in the record, was based on
the IJ’s conclusion that Bicak’s “theory of asylum seems to vary at whatever point in time
he is interviewed.” A46. The IJ pointed to Bicak’s statement that he had no idea why his
former girlfriend’s family did not support their marriage, and compared that with his later
statement that the family was motivated by some sort of political or religious opposition.
The IJ also noted that there was nothing in the record, not even from Bicak’s parents with
whom he could have easily communicated, to support any of his statements. We find that
there is substantial evidence in the record to support the IJ’s adverse credibility
determination, to which the BIA appropriately deferred after finding that the
5
Section 101(a)(3) of the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 305,
amends 8 U.S.C. § 1158(b)(1) by adding new provisions concerning the alien’s burden of
proof; however, that section “take[s] effect on the date of the enactment of this division
and shall apply to applications for asylum, withholding, or other relief from removal
made on or after such date.” Real ID Act of 2005 § 101(h)(2). Because Bicak filed his
application in November of 2002, the Real ID Act does not apply, and we analyze the IJ’s
credibility findings under “old” law.
5
inconsistencies noted by the IJ involved “major events” which go to the heart of Bicak’s
claim. A2.
But even if Bicak were to be believed, his asylum application would still fail. Two
components of a successful asylum application include proof that any persecution was
“on account of” a statutorily protected ground,6 and that the persecution was committed
by forces the government is either unable or unwilling to control. See Mulanga v.
Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Bicak did not provide evidence of either.
Rather, it appears clear that if his former girlfriend’s family indeed threatened him, it was
because he took her from her family’s home without their consent, and not because of
anyone’s political or religious views. Furthermore, there is no indication that this is
anything other than a private family feud; there is nothing in the record to suggest that the
Turkish government was either unable or unwilling to “control” the young woman’s
family, other than Bicak’s unsupported testimony that the family had “connections” with
the local police.
Because there is no basis for a grant of asylum, Bicak’s request for withholding of
removal similarly fails. Furthermore, we see no evidence that would suggest that it is
more likely than not that Bicak will be subjected to torture upon his return to Turkey,
6
This standard was also amended by the Real ID Act, and now requires an applicant to
establish that one of the protected statutory factors “was or will be at least one central
reason for persecuting the applicant,” 8 U.S.C. § 1158(b)(1)(B)(i); however, as explained
above, that new standard does not apply to Bicak’s case.
6
making him ineligible for relief under the CAT. See Lukwago v. Ashcroft, 329 F.3d 157,
182-83 (3d Cir. 2003).
III. Conclusion
For the forgoing reasons, the petition for review will be denied.
7
