Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3578




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-3578


                                MUSTAFA ARSLAN,
                                            Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A95-833-769


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 27, 2006


          Before: BARRY, VAN ANTWERPEN and SILER,* Circuit Judges


                             (Opinion Filed: July 27, 2006)


                                       OPINION




   *
     The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
BARRY, Circuit Judge

       Mustafa Arslan petitions for review of a decision of the Board of Immigration

Appeals (“BIA”) affirming without opinion the decision of an Immigration Judge (“IJ”)

ordering his removal. Arslan had applied for asylum, withholding of removal, and

withholding of removal under the Convention Against Torture (“CAT withholding”).

Because the IJ’s adverse credibility finding was supported by substantial evidence, we

will deny the petition for review.

       Arslan is a native and citizen of Turkey. He entered the United States on July 23,

2002 in Miami, without a valid visa or entry documents. On April 23, 2003, the former

Immigration and Naturalization Service (“INS”) 1 served him with a Notice to Appear,

alleging that he was removable as “[a]n alien present in the United States without being

admitted or paroled,” 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien arriving without valid

entry documents, 

He conceded removability at a hearing before

the IJ on May 16, 2003. He submitted an application for asylum, withholding of removal,

and CAT withholding on July 10, 2003.

       In the affidavit he attached to his application, Arslan alleged that he is a Muslim

who was persecuted in Turkey on account of his religion and his activities on behalf of

the Fazilet (“Virtue”) political party. He attended a peaceful demonstration on June 18,


   1
     On March 1, 2003, the functions of the INS were transferred from the Department of
Justice to the Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, 110 Stat. 2135 (Nov. 25, 2002).

                                             2
1999 to protest the Turkish government’s closure of Islamic schools. The police arrived,

beat up protesters, and arrested Arslan and others. At the police station, he was stripped

naked, sprayed with cold water, and beaten, before being released without being charged.

He continued to attend Fazilet meetings until the government banned the party in June,

2001. His sister was banned from attending college because she wore a head scarf. On

April 11, 2002, he attended another demonstration on behalf of a new religious freedom

political party, Soudet. Again, he and others were arrested, stripped, sprayed with cold

water, and beaten. His boss then fired him because of his religious beliefs. Although he

stopped going to political meetings, the police came to his house on May 31, 2002 to

question him about a Soudet rally. He had not attended, but the police warned him that he

would be in “very dangerous trouble” if he did not stop going to demonstrations. He then

decided to come to the United States because of its reputation for religious freedom.

       Arslan testified at a hearing before the IJ on February 25, 2004. An interpreter

was present, and Arslan testified in a mixture of Turkish and English. He repeatedly

answered questions about his personal experiences with protestations of confusion,

mostly directed at the reasons for the Turkish authorities’ alleged actions against him. A

few excerpts illustrate the form and substance of his testimony:

       MR. ROTHMAN TO MR. ARSLAN
            Q.   What type of religious school did you attend?
            A.   It was a regular school, but it was a religious school.
       JUDGE TO MR. ARSLAN
            Q.   What do you mean by a religious school?
            A.   I don’t know what they were thinking, that’s how they

                                             3
             accepted that.
      Q.     Who accepted that, what are you talking about?
      A.     Whatever lessons they were getting, we were getting as well.
      Q.     Who is they, who are you talking about?
      A.     I don’t understand?
...
      Q.     Now sir, let me try and understand. You said you went
             to a religious school. What kind of religious school is
             this?
      A.     It’s just named, it’s a religious school, 99 percent, it’s Muslim
             in Turkey.
      Q.     What was 99 percent Muslim, sir?
      A.     The majority is Muslim. They are saying that schools,
             religious schools, whatever lessons we were learning –
      Q.     Sir –
      A.     It’s called a religious school or whatever, I still, we don’t
             understand.
...
MR. ROTHMAN TO MR. ARSLAN
     Q.   And what type of activities would you be involved in as a
          member?
     A.   We were being restricted as far as our independence, freedom.
JUDGE TO MR. ARSLAN
     Q.   Sir, the question was, what type of activities did you partake
          in?
     A.   What I like about the party was religiously only religious
          freedom of people because Turkey is a Muslim nation, there
          was no pressures on that, but this Party, not only for the
          Muslims but generally for all people, and if I’m a human
          being, I would like to be a member of a country that accepts
          people as human beings. I would like to have worked under
          Party leaders that had that in mind.
...
MR. ROTHMAN TO MR. ARSLAN
     Q.   Can you tell us about the protest which you attended?
     A.   Yes.
     Q.   What did you do during the protest?
     A.   There is Party, a Facilet Party (indiscernible) in these protests.
          The government had closed that Party, the reason is, we have
          no idea.

                                     4
    Q.       Were you at the protest?
    A.       I was there, yes.
JUDGE TO    MR. ARSLAN
    Q.       Okay, so what happened, when did this occur?
    A.       It happened in Toro. We were holding some plaques up.
    Q.       What date was this, sir? Sir, you’re testifying half in English
             and half in Turkish, for the record.
      A.     It was a date I don’t know.
...
MR. ROTHMAN TO MR. ARSLAN
     Q.   Your sister (indiscernible)
     A.   My sister? My sister had one of the university exams, but
          because her hair was covered it was very difficult to, I can’t
          even tell you all this here.
     Q.   What, if anything, did you --
JUDGE TO MR. ARSLAN
     Q.   Well where is it that you think you’re going to tell me?
     A.   This is something that can’t be explained, it has to be lived.
     Q.   Okay sir, well this is your golden opportunity to explain it to
          me so I can understand it. You can’t expect me to go live it.
     A.   That’s what I’m trying to explain. Nobody’s doing things by
          the rules. They were really pressuring us, then we protested
          and it was over, they took us inside, the police, beating us up,
          putting cold water on us –
     Q.   When did this occur?
     A.   After this protest
     Q.   When did this occur?
     A.   ‘98.
     Q.   In ‘98?
     A.   No, it’s not ‘98.
     Q.   When was it, sir?
     A.   I know the year, so I don’t remember the months.
     Q.   You know the year, but you don’t remember the month, for
          the record he’s speaking in English. Now sir, whether it’s in
          English or Turkish, can you tell me when this arrest occurred
          or this detention that you’re trying to tell me about? You said
          it’s not in 1998, so do you know when it was?
     A.   2001, it happened. It was June 16th or so.
...
MR. ROTHMAN TO MR. ARSLAN

                                     5
              Q.      How often did the police come to your house?
              A.      I don’t, didn’t want to go to the parties and all of the activities
                      of my Party because of I was feeling very frightened. They
                      were threatening.
              Q.      What kind of threats?
              A.      You’ll never be able to see your family again. I don’t want to
                      understand this, I don’t.
              Q.      What, if anything else, would the police do besides
                      (indiscernible)
              A.      If I knew the answer to that.

       At the close of the hearing, in an oral opinion, the IJ denied Arslan all relief. She

concluded that he had not met his burden of proof, finding him “not credible nor

persuasive in the least bit.” She found his testimony “inarticulate and devoid of any

rational basis to support a claim for asylum” and cited several specific instances of

vagueness and evasion. She mentioned, for example, his inability to clarify why he called

his high school a “religious school” and his difficulty in settling on the date of the protest,

in the end naming a date different from the one he named in his affidavit. She also found

significant the lack of supporting affidavits from family members in Turkey who could

have corroborated his stories of the various incidents. She denied his requests for relief

and ordered him removed. Arslan appealed to the BIA, which affirmed in a single-judge

opinion on June 28, 2005, under its streamlining regulations. See 8 C.F.R. §

1003.1(e)(4). Arslan filed a timely petition for review.2


   2
     We have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the BIA
summarily affirms the decision of an IJ, we review the decision of the IJ as though it were
the decision of the BIA. Jishiashvili v. Attorney General, 

, 391 (3d Cir.
2005). We review factual findings, including credibility determinations, for support by

                                               6
       The Attorney General may grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1). A

refugee is defined, in relevant part, as one “who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of the protection of, [his home] 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.” 8 U.S.C. §

1101(a)(42). Withholding of removal is similar: An alien may not be removed to a

country where the alien’s life or freedom would more likely than not be threatened on one

of these five enumerated grounds. 8 U.S.C. § 1231(b)(3); INS v. Stevic, 

,

429 (1984). Under CAT withholding, an alien may not be removed to a country where it

is more likely than not that he or she would be tortured. 8 C.F.R. § 1208.16(c)(1). The

applicant bears the burden of proof of establishing that he qualifies under one of these

standards. 8 C.F.R. §§ 1208.13(a), 1208.16(b), 1208.16(c)(2). “The testimony of the

applicant, if credible, may be sufficient to sustain the burden of proof without

corroboration.” Id.; see In re M—— D——, 21 I. & N. Dec. 1180, 1182 (B.I.A. 1998)

(“[W]here an alien's testimony is the only evidence available, it can suffice where the

testimony is believable, consistent, and sufficiently detailed to provide a plausible and



substantial evidence. 

Such findings will be upheld if “supported by
reasonable, substantial and probative evidence on the record considered as a whole.”
Tarrawally v. Ashcroft, 

, 184 (3d Cir. 2003) (internal quotation marks
omitted). They may only be overturned if “any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4). Adverse credibility
determinations must be “supported by specific cogent reasons.” Gao v. Ashcroft, 

, 276 (3d Cir. 2002).

                                              7
coherent account of the basis of the alien's alleged fear.”).

       Arslan argues that the reasons the IJ cited for her adverse credibility determination

were improper. He blames his inarticulate performance at the hearing on his nervousness

and objects that the discrepancy in the dates of his arrest was “a minor inconsistency” that

does not, in our words, “involve the heart of the asylum claim.” 

(internal quotation marks omitted). We believe, however, that the IJ’s stated reasons

“bear a legitimate nexus to the [adverse credibility] finding,” Balasubramanrim v. INS,

, 162 (3d Cir. 1998). While in other circumstances we might not place such

reliance on such seemingly minor matters as an inconsistent date and the petitioner’s

inability to explain further the meaning of the phrase “religious school,” here we find two

factors particularly significant.

       First, Arslan’s detentions for taking part in political protests were central to his

claims of intimidation and retaliation. They involved the most severe mistreatment he

alleged, and they were the proximate cause of the authorities’ interest in him and his

family. As such, they were at the “heart” of his claims, and it was reasonable for the IJ to

expect him to describe those events. Second, and perhaps more importantly, as described

above, Arslan’s testimony was by turns elusive, incoherent, nonresponsive, and confused.

Had he been more detailed in the remainder of his testimony, such matters as the year and

date of an arrest might not have loomed so large in the case. As it was, the date of his

arrest was the most specific material fact either his own lawyer or the IJ could elicit from


                                              8
him. As Arslan could not testify consistently either about matters central to his claim or

when he was at his most specific, the IJ justifiably discounted the remainder of his

testimony.

       Stated somewhat differently, the IJ’s adverse credibility determination depended

not so much on specific inconsistencies in Arslan’s testimony as on the IJ’s conclusion

that his testimony was not “sufficiently detailed to provide a plausible and coherent

account” of the alleged persecution he suffered. In re M—— D——, 21 I. & N. Dec. at

1182. Where, as here, it is not, the applicant has simply failed to provide the necessary

evidence to substantiate his claim, whether or not this failure is termed an “adverse

credibility determination.” Arslan did not or could not explain in any coherent detail why

he was prevented him from attending college, what he meant by “religious school,” what

activities he was involved in as a member of Fazilet, what he did at the protests, when the

protests were, what happened to him after his arrest, the nature of his work as an

accountant, how often the police came to his house, or the nature of the threats they made

against him. We do not require an IJ to be more specific in describing inconsistencies in

a petitioner’s testimony than the petitioner himself has been in testifying. Accordingly,

we conclude that the IJ’s adverse credibility determination was supported by substantial

evidence.3


   3
    Arslan also argues that the IJ improperly noted that his family did not supply
corroborating evidence. As he did not raise this issue before the BIA, he has not properly
exhausted it, and we may not consider it. 8 U.S.C. § 1252(d)(1).

                                             9
We will deny the petition for review.




                                    10