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George Gerges Rizk v. Eric H. Holder Jr.

January 3, 2011

GEORGE GERGES RIZK; NADIA YOUSSEF ATTIA; JOSEPH GEORGE GERGES; JOHN GEORGE GERGES, PETITIONERS,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL,
RESPONDENT.



On Petition for Review of an Order of the A078-111-798, Agency Nos. A075-676-966, A078-111-799, A075-674-142 Board of Immigration Appeals

The opinion of the court was delivered by: Judge Ikuta

FOR PUBLICATION

OPINION

Argued and Submitted

September 2, 2010-Pasadena, California

Before: Diarmuid F. O'Scannlain, Ronald M. Gould and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

OPINION

IKUTA, Circuit Judge:

George Gerges Rizk, the principal petitioner in this case, claims that the immigration judge (IJ) and Board of Immigration Appeals (BIA) erred in rejecting his asylum claim on the basis of an adverse credibility determination. Specifically, Rizk argues that he was not given a chance to explain the inconsistencies on which the IJ relied in finding him not credible. Because the record shows that Rizk did have ample opportunities to reconcile the numerous contradictions in his testimony, but failed to offer a reasonable and plausible explanation for them, the IJ's adverse credibility determination was supported by substantial evidence. We therefore deny his petition for review.

I Rizk, a citizen of Egypt, entered the United States on December 6, 1998, as a nonimmigrant visitor for pleasure, with authority to remain in the United States until June 5, 1999. His wife, Nadia Youssef Attia (Attia), and two children, Joseph George Gerges (Joseph) and John George Gerges (John), entered the United States as nonimmigrant visitors on March 5, 1999, and were authorized to remain until September 4, 1999. In early 2000, all were issued Notices to Appear, charging them with being subject to removal under 8 U.S.C. § 1227(a)(1)(B) for having remained in the United States beyond the dates permitted by their visas. Rizk and his family conceded removability but sought relief in the form of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Rizk and his wife filed separate petitions for relief, and the children claimed derivative relief through each parent. See 8 C.F.R. § 207.7(a) (2010) (stating that a child accompanying an asylum applicant may share in the applicant's asylum status).

The IJ conducted an in-depth hearing over the course of three days. Rizk and Attia were the only witnesses, and each testified out of the hearing of the other. Their testimony focused on three separate incidents: the harassment and beating of their son Joseph for refusing to join in Islamic prayers, the break-in at the family's apartment, which led to Rizk's persecution by the police and prosecution for inciting sectarian chaos, and Attia's harassment by a Muslim, Mohammed Abdul Latif, culminating in her abduction and rape. For the reasons explained below, we focus mainly on the break-in incident.

The break-in and its aftermath are central to Rizk's claim of persecution. According to Rizk, on January 24, 1998, unknown perpetrators broke into the family's apartment, stole money and jewelry, and scrawled pro-Islamic slogans on the walls. After the police arrived to investigate, Attia accused Latif of committing the crime. The police took Rizk and Attia to the police station and interviewed them along with Latif. After preparing a report, the police detained Rizk overnight on the charge of "inciting sectarian chaos," allegedly because he accused a Muslim of breaking into and stealing from his apartment. The next day, the police transferred Rizk to State Security, where, Rizk asserted, he was interrogated, occasionally struck by officers, and given five minutes of electric shocks through his index fingers. He thereafter received letters requiring him to appear in court in connection with his prosecution on the incitement charge.

In a detailed, 37-page opinion, the IJ reviewed Rizk and Attia's testimony and detailed dozens of inconsistencies, including discrepancies as to times, dates, the sequence of events, and the identity of the individuals who participated in those events. The IJ pointed out internal inconsistencies, as well as inconsistencies between the stories offered by Rizk and Attia.*fn1 Most significantly, the petitioners' testimony con- tradicted the key piece of documentary evidence they had submitted: the police report on the break-in of their apartment. The IJ stated that "the unusual number of factual discrepancies present in the respondents' accounts, combined with the blatantly contradictory nature of those discrepancies, has left the respondents' representations dubious." In light of these numerous conflicts, the IJ determined that the petitioners were not credible, and indeed that their "testimony has left the Court in such disarray that it could not begin to discern the truth, if any, from the vast fallacies." Consequently, the IJ denied all of the petitioners' requested relief.

Following the IJ's rejection of their claims, petitioners appealed to the BIA. On December 29, 2003, the BIA "adop-t[ed] and affirm[ed]" the IJ's opinion solely as to "the lead male respondent," i.e., Rizk. The BIA's opinion expressly did not address the appeals of Attia or the couple's children. Petitioners filed a timely petition for review of the BIA's decision.

On the subject of the letters sent by the court to Rizk in connection with prosecution for incitement of sectarian chaos, Rizk first claimed he received no letters while in Egypt, but then said he received three letters in November 1998 (before leaving for the United States). Attia, however, said that he received four letters: three in July 1998 and one in September 1998.

Attia's and Rizk's accounts also disagreed on the chronology of Latif's alleged harassment of Attia. According to Rizk, Latif began accosting Attia in summer 1997, and his last attempt to convince her to convert to Islam was sometime between August 1997 and December 1997. Specifically, Rizk testified as follows about the last date of Latif's harassment: "Maybe it was October, end of November or beginning of December. Beginning of November or end of November, end of October, beginning of November." Attia stated that she did not meet Latif until January 2, 1998, however, which was after the last date indicated in Rizk's account.

II On appeal, Attia argues that the BIA failed to address her challenge to the IJ's adverse credibility determination regarding her testimony. We agree. The BIA's opinion states: "The respondents consist of a married couple and their two children. For purposes of this order, reference to 'the respondent' will refer to the lead male respondent." The opinion then upheld the IJ's adverse credibility as to the "respondent," and concluded that "the respondent's appeal is dismissed." In short, the BIA affirmed in full the IJ's decision as to Rizk, but did not mention Attia, John, or Joseph other ...


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