Budy v. Atty Gen USA , 131 F. App'x 844 ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-19-2005
    Budy v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-2559
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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1156
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    NOT PRECEDENTIAL
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Case No: 04-2559
    ERNIE BUDY,
    Petitioner
    v.
    *ATTORNEY GENERAL OF THE UNITED STATES;
    SECRETARY OF THE DEPARTMENT OF
    HOMELAND SECURITY,
    Respondents
    (*Amended pursuant to Rule 43(c), Fed. R. App. P.)
    On petition for review of a final order
    of the Board of Immigration Appeals
    File No: A79-327-480
    __________________________________
    Submitted pursuant to LAR 34.1(a)
    May 6, 2005
    Before: MCKEE, SMITH, and VAN ANTWERPEN, Circuit Judges
    (Filed: May 19, 2005)
    _____________________
    OPINION OF THE COURT
    _____________________
    SMITH, Circuit Judge.
    Appellant Ernie Budy appeals a decision of the Board of Immigration Appeals
    (“BIA”) in which the BIA affirmed the Immigration Judge’s (“IJ’s”) denial of Budy’s
    application for asylum, withholding of removal, and protection under the United Nations
    Convention Against Torture (“CAT”). We will affirm.
    Because we write only for the parties, we limit our discussion to the facts and legal
    principles necessary to resolve this appeal. After a hearing in which Budy presented
    testimony in support of her claim, the IJ made an adverse credibility determination,
    finding that Budy had not testified credibly, and thus had not carried her burden of proof
    with respect to establishing eligibility for asylum. The BIA affirmed in a per curiam
    opinion in which it adopted the portion of the IJ’s opinion containing the IJ’s adverse
    credibility analysis. An adverse credibility determination is a factual finding reviewed
    under the substantial evidence standard. Dia v. Ashcroft, 
    353 F.3d 228
    , 247 (3d Cir.
    2003) (en banc). Under this standard, “administrative findings of fact are conclusive
    unless any reasonable adjudicator would be compelled to conclude to the contrary.” 
    Id.
    (quoting 
    8 U.S.C. § 1252
    (b)(4)(B)). “Thus, the question whether an agency
    determination is supported by substantial evidence is the same as the question whether a
    reasonable fact finder could make such a determination based upon the administrative
    record.” 
    Id. at 249
    .
    Budy is a native of Indonesia, and she is of Chinese ethnicity. Her petition for
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    asylum revolved in large part around an alleged May 1998 incident in which Budy
    claimed that a number of Muslim men surrounded a car in which she was driving with a
    female friend named Vivi, who was also of Chinese ethnicity. Budy alleged that she and
    Vivi were forced to exit the car, and that the attackers raped Vivi. Budy indicated that the
    attackers tore off some of her clothing, but did not rape her because she was menstruating
    at the time. Budy claimed that she escaped from the attackers, and that an elderly Chinese
    man assisted her in getting to the hospital.
    The IJ cited a number of concerns and discrepancies with respect to Budy’s
    testimony. We focus on two that we believe provided substantial evidence for the IJ’s
    adverse credibility determination that was adopted by the BIA. First, Budy’s initial
    affidavit, prepared without the assistance of counsel, indicated that “a bunch of savage
    men came out from the bushes” and blocked the car in which she and Vivi were traveling.
    A second, supplemental affidavit submitted by Budy at a later date provided additional
    information relating primarily to her religious background, and contained a paragraph
    stating that everything in the first affidavit was true. Budy later submitted a third, single-
    paragraph affidavit, prepared with the assistance of counsel, in which she sought to
    modify information provided in her first affidavit. This third affidavit did not mention
    men coming “out of the bushes.” Instead, it indicated that “we found ourselves blocked
    by a bus in the street. We did not realize the bus was there as a road-block until we
    approached closer and people inside the bus came out. They rushed out of the bus and
    3
    surrounded my car.” The remainder of the single-paragraph third affidavit described the
    opening moments of the alleged 1998 attack in a manner consistent with the statements in
    Budy’s initial affidavit. At her hearing, Budy testified in a manner consistent with the
    third affidavit, indicating that the reference to “bushes” in the first affidavit had been a
    mistake, and that her attackers had actually exited a bus that was blocking the roadway on
    which she was driving.
    The IJ cited the discrepancy between Budy’s first affidavit, on the one hand, and
    her third affidavit and hearing testimony, on the other, as a basis for his adverse
    credibility determination. The BIA adopted the IJ’s finding. On appeal, Budy notes the
    “alphabetical similitude” between “bushes” and “bus,” and argues that this fact proves
    that the first affidavit’s reference to attackers who came “out of the bushes” was merely a
    typographical error. While this is one possible interpretation, we do not think the IJ was
    obligated to take this view. Budy’s third affidavit not only mentions a bus, but explains
    that it was the presence of this bus on an otherwise empty road that operated as a
    roadblock, preventing Budy and her companion from escaping. These details, concerning
    events central to Budy’s claim, can reasonably be expected to have been included in
    Budy’s first affidavit. Where such details were omitted, and where Budy filed a second
    affidavit reaffirming the accuracy of the first affidavit, only to follow with a third
    affidavit that changed Budy’s account, and where Budy proceeded to testify in a manner
    consistent with the third affidavit, we believe the IJ reasonably cited the discrepancy
    4
    concerning the origin of Budy’s attackers as a factor that cast doubt on Budy’s overall
    veracity.
    A second, and similar, discrepancy noted by the IJ relates to Budy’s account of her
    escape from her attackers. Budy’s initial affidavit stated that while she was fleeing from
    the scene, an elderly local resident “came to me and embraced me.” The affidavit states
    that this resident helped Budy find a secure route to the hospital where she worked, and
    that she took shelter there. However, in her hearing testimony, Budy indicated that after
    encountering this resident, she took shelter in his home for several hours, and only later
    proceeded to the hospital. The IJ found that Budy’s failure to indicate in her affidavit that
    she had taken shelter in a stranger’s home immediately after fleeing her alleged attackers
    cast further doubt on Budy’s overall credibility. Budy argues on appeal that there is no
    contradiction between her affidavit and her testimony, and that the testimony simply
    contains added details that supplement, but do not contradict, the account in her initial
    affidavit. Budy’s argument is not inherently unreasonable, but we do not believe it is the
    only plausible interpretation of the facts. The events surrounding the alleged 1998 attack
    and its immediate aftermath are at the core of Budy’s claimed entitlement to asylum and
    withholding of removal. Where Budy’s initial affidavit contained substantial detail with
    respect to these incidents, and yet omitted the fact that she took shelter in a stranger’s
    home for several hours prior to leaving and making her way to the hospital, we believe
    the IJ reasonably viewed such an omission, combined with Budy’s later, more detailed
    5
    testimony, as giving rise to a discrepancy that undermined Budy’s overall credibility.
    In sum, we hold that the IJ’s adverse credibility determination, adopted by the
    BIA, was supported by substantial evidence. The absence of credible testimony in
    support of her claim left Budy unable to demonstrate her entitlement to the relief she
    seeks, and thus we will affirm the decision of the BIA.
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Document Info

Docket Number: 04-2559

Citation Numbers: 131 F. App'x 844

Filed Date: 5/19/2005

Precedential Status: Non-Precedential

Modified Date: 1/12/2023