NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R 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

A g e n c y No. A95-833-769

Submitted Under Third Circuit LAR 34.1(a)

J u n e 27, 2006

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

(Opinion Filed: July 27, 2006)

OPINION

B A R R Y , Circuit Judge M u s ta f a Arslan petitions for review of a decision of the Board of Immigration A p p e a ls ("BIA") affirming without opinion the decision of an Immigration Judge ("IJ") o rd e rin g his removal. Arslan had applied for asylum, withholding of removal, and w ith h o ld in g of removal under the Convention Against Torture ("CAT withholding").

Because the IJ's adverse credibility finding was supported by substantial evidence, we w ill deny the petition for review.

A rs la n is a native and citizen of Turkey. He entered the United States on July 23, 2 0 0 2 in Miami, without a valid visa or entry documents. On April 23, 2003, the former Im m igratio n and Naturalization Service ("INS") 1 served him with a Notice to Appear, a lle g in g that he was removable as "[a]n alien present in the United States without being a d m itte d or paroled," 8U.S.C. § 1182(a)(6)(A)(i), and as an alien arriving without valid en try documents, id. § 1182(a)(7)(A)(i)(I). He conceded removability at a hearing before th e IJ on May 16, 2003. He submitted an application for asylum, withholding of removal, a n d CAT withholding on July 10, 2003.

In the affidavit he attached to his application, Arslan alleged that he is a Muslim w h o was persecuted in Turkey on account of his religion and his activities on behalf of th e 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 J u s tic e to the Department of Homeland Security. See Homeland Security Act of 2002, P u b . L. No. 107-296, 110 Stat. 2135 (Nov. 25, 2002).

1 9 9 9 to protest the Turkish government's closure of Islamic schools. The police arrived, b e a t up protesters, and arrested Arslan and others. At the police station, he was stripped n a k e d , 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, 2 0 0 1 . His sister was banned from attending college because she wore a head scarf. On A p ril 11, 2002, he attended another demonstration on behalf of a new religious freedom p o litica l party, Soudet. Again, he and others were arrested, stripped, sprayed with cold w a te r, and beaten. His boss then fired him because of his religious beliefs. Although he sto p p e d going to political meetings, the police came to his house on May 31, 2002 to q u e stio n him about a Soudet rally. He had not attended, but the police warned him that he w o u ld be in "very dangerous trouble" if he did not stop going to demonstrations. He then d e c id e d to come to the United States because of its reputation for religious freedom.

A rs la n testified at a hearing before the IJ on February 25, 2004. An interpreter w a s present, and Arslan testified in a mixture of Turkish and English. He repeatedly a n sw e re d questions about his personal experiences with protestations of confusion, m o s tly directed at the reasons for the Turkish authorities' alleged actions against him. A f e w excerpts illustrate the form and substance of his testimony: M R . ROTHMAN TO MR. ARSLAN Q. W h a t type of religious school did you attend? A. It was a regular school, but it was a religious school.

J U D G E TO MR. ARSLAN Q. W h a t do you mean by a religious school? A. I don't know what they were thinking, that's how they a c c e p ted that.

Q. W h o accepted that, what are you talking about? A. W h a tev e r lessons they were getting, we were getting as well.

Q. W h o is they, who are you talking about? A. I don't understand? ...

Q. N o w sir, let me try and understand. You said you went to a religious school. What kind of religious school is th i s? A. It's just named, it's a religious school, 99 percent, it's Muslim in Turkey.

Q. W h at was 99 percent Muslim, sir? A. T h e majority is Muslim. They are saying that schools, re lig io u s schools, whatever lessons we were learning ­ Q. S ir ­ A. It's called a religious school or whatever, I still, we don't u n d e rs ta n d .

...

M R . ROTHMAN TO MR. ARSLAN Q. A n d what type of activities would you be involved in as a m em b er? A. W e were being restricted as far as our independence, freedom.

J U D G E TO MR. ARSLAN Q. S ir, the question was, what type of activities did you partake in ? A. W h a t I like about the party was religiously only religious fre ed o m of people because Turkey is a Muslim nation, there w a s no pressures on that, but this Party, not only for the M u s lim s but generally for all people, and if I'm a human b e in g , I would like to be a member of a country that accepts p e o p le as human beings. I would like to have worked under P a rty leaders that had that in mind.

...

M R . ROTHMAN TO MR. ARSLAN Q. C a n you tell us about the protest which you attended? A. Y es.

Q. W h a t did you do during the protest? A. T h e re is Party, a Facilet Party (indiscernible) in these protests.

The government had closed that Party, the reason is, we have n o idea.

Q. W e re you at the protest? A. I was there, yes.

J U D G E TO MR. ARSLAN Q. O k ay, so what happened, when did this occur? A. It happened in Toro. We were holding some plaques up.

Q. W h a t date was this, sir? Sir, you're testifying half in English a n d half in Turkish, for the record.

A. It was a date I don't know.

...

M R . ROTHMAN TO MR. ARSLAN Q. Y o u r sister (indiscernible) A. M y sister? My sister had one of the university exams, but b ec au se her hair was covered it was very difficult to, I can't e v e n tell you all this here.

Q. W h at, if anything, did you -J U D G E TO MR. ARSLAN Q. W e ll where is it that you think you're going to tell me? A. T h is is something that can't be explained, it has to be lived.

Q. O k a y sir, well this is your golden opportunity to explain it to m e so I can understand it. You can't expect me to go live it.

A. T h a t's what I'm trying to explain. Nobody's doing things by th e rules. They were really pressuring us, then we protested a n d it was over, they took us inside, the police, beating us up, p u ttin g cold water on us ­ Q. W h en did this occur? A. A f te r this protest Q. W h en did this occur? A. `9 8 .

Q. In `98? A. N o , it's not `98.

Q. W h en was it, sir? A. I know the year, so I don't remember the months.

Q. Y o u know the year, but you don't remember the month, for th e record he's speaking in English. Now sir, whether it's in E n g lis h or Turkish, can you tell me when this arrest occurred o r 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. 2 0 0 1 , it happened. It was June 16th or so.

...

M R . ROTHMAN TO MR. ARSLAN Q. H o w 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 o f my Party because of I was feeling very frightened. They w e re threatening.

Q. W h a t kind of threats? A. Y o u 'll never be able to see your family again. I don't want to u n d e rsta n d this, I don't.

Q. W h a t, if anything else, would the police do besides ( in d is c e rn ib le ) A. If I knew the answer to that.

A t the close of the hearing, in an oral opinion, the IJ denied Arslan all relief. She c o n c lu d e d that he had not met his burden of proof, finding him "not credible nor p e rs u a siv e in the least bit." She found his testimony "inarticulate and devoid of any ra tio n a l basis to support a claim for asylum" and cited several specific instances of v a g u e n es s and evasion. She mentioned, for example, his inability to clarify why he called h is 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 sig n if ica n t the lack of supporting affidavits from family members in Turkey who could h a v e corroborated his stories of the various incidents. She denied his requests for relief a n d ordered him removed. Arslan appealed to the BIA, which affirmed in a single-judge o p in io n on June 28, 2005, under its streamlining regulations. See 8 C.F.R. § 1 0 0 3 .1 (e )(4 ). Arslan filed a timely petition for review.2 2 We have jurisdiction pursuant to 8U.S.C. § 1252. Where, as here, the BIA su m m arily 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, 402 F.3d 386, 391 (3d Cir. 2 0 0 5 ). We review factual findings, including credibility determinations, for support by T h e Attorney General may grant asylum to a "refugee." 8U.S.C. § 1158(b)(1). A re f u g e e is defined, in relevant part, as one "who is unable or unwilling to return to, and is u n ab le or unwilling to avail himself or herself of the protection of, [his home] country b e c au s e of persecution or a well-founded fear of persecution on account of race, religion, n a tio n a lity, membership in a particular social group, or political opinion." 8U.S.C. § 1 1 0 1 (a )(4 2 ). Withholding of removal is similar: An alien may not be removed to a c o u n try where the alien's life or freedom would more likely than not be threatened on one o f these five enumerated grounds. 8U.S.C. § 1231(b)(3); INS v. Stevic, 467 U.S. 407, 4 2 9 (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 a p p lic a n t bears the burden of proof of establishing that he qualifies under one of these s ta n d a rd s . 8 C.F.R. §§ 1208.13(a), 1208.16(b), 1208.16(c)(2). "The testimony of the a p p lic a n t, if credible, may be sufficient to sustain the burden of proof without c o rro b o ra tio n ." Id.; see In re M D, 21 I. & N. Dec. 1180, 1182 (B.I.A. 1998) (" [ W ]h e re an alien's testimony is the only evidence available, it can suffice where the te stim o n y is believable, consistent, and sufficiently detailed to provide a plausible and co h ere n t account of the basis of the alien's alleged fear.").

A rs la n argues that the reasons the IJ cited for her adverse credibility determination w e r e improper. He blames his inarticulate performance at the hearing on his nervousness a n d objects that the discrepancy in the dates of his arrest was "a minor inconsistency" that d o e s not, in our words, "involve the heart of the asylum claim." Gao, 299 F.3d at 272 (in te rn a l quotation marks omitted). We believe, however, that the IJ's stated reasons " b e a r a legitimate nexus to the [adverse credibility] finding," Balasubramanrim v. INS, 1 4 3 F.3d 157, 162 (3d Cir. 1998). While in other circumstances we might not place such relian ce on such seemingly minor matters as an inconsistent date and the petitioner's in a b ility to explain further the meaning of the phrase "religious school," here we find two f a c to rs particularly significant.

F irst, Arslan's detentions for taking part in political protests were central to his c la im s of intimidation and retaliation. They involved the most severe mistreatment he a lleg e d , and they were the proximate cause of the authorities' interest in him and his f a m ily. As such, they were at the "heart" of his claims, and it was reasonable for the IJ to e x p e ct him to describe those events. Second, and perhaps more importantly, as described a b o v e , 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 d a te of an arrest might not have loomed so large in the case. As it was, the date of his a rre st was the most specific material fact either his own lawyer or the IJ could elicit from h im . As Arslan could not testify consistently either about matters central to his claim or w h e n he was at his most specific, the IJ justifiably discounted the remainder of his t e s t i m o n y.

Stated somewhat differently, the IJ's adverse credibility determination depended n o t so much on specific inconsistencies in Arslan's testimony as on the IJ's conclusion th a t his testimony was not "sufficiently detailed to provide a plausible and coherent a c co u n t" of the alleged persecution he suffered. In re M D, 21 I. & N. Dec. at 1 1 8 2 . Where, as here, it is not, the applicant has simply failed to provide the necessary e v i d e n c e to substantiate his claim, whether or not this failure is termed an "adverse c re d ib ility determination." Arslan did not or could not explain in any coherent detail why h e was prevented him from attending college, what he meant by "religious school," what a c tiv itie s he was involved in as a member of Fazilet, what he did at the protests, when the p ro te sts were, what happened to him after his arrest, the nature of his work as an a c co u n ta n t, how often the police came to his house, or the nature of the threats they made a g a in st 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, w e conclude that the IJ's adverse credibility determination was supported by substantial e v id e n c e .3 W e will deny the petition for review.

* The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals f o r the Sixth Circuit, sitting by designation. substantial evidence. Id. at 392. Such findings will be upheld if "supported by re a so n a b le , substantial and probative evidence on the record considered as a whole." Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003) (internal quotation marks o m itte d ). They may only be overturned if "any reasonable adjudicator would be c o m p e lled to conclude to the contrary." 8U.S.C. § 1252(b)(4). Adverse credibility d e te rm in a tio n s must be "supported by specific cogent reasons." Gao v. Ashcroft, 299 F .3 d 266, 276 (3d Cir. 2002).

3 Arslan also argues that the IJ improperly noted that his family did not supply c o rro b o ra tin g evidence. As he did not raise this issue before the BIA, he has not properly ex h au sted it, and we may not consider it. 8U.S.C. § 1252(d)(1).