Tarraf, Ahmad J. v. Keisler, Peter D. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2835
AHMAD J. TARRAF,
Petitioner,
v.
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A78-851-200.
____________
ARGUED MAY 1, 2007—DECIDED JULY 30, 2007
____________
Before RIPPLE, MANION and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. On February 18, 2005, an Immigra-
tion Judge (“IJ”) denied Ahmad Tarraf’s applications for
asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”) and ordered him
removed from the United States. Mr. Tarraf appealed to
the Board of Immigration Appeals (“BIA” or “Board”),
which adopted and affirmed the decision of the IJ on June
1, 2006. Mr. Tarraf filed a petition for review in this court
on July 5, 2006. For the reasons stated in this opinion,
we deny the petition for review.
2 No. 06-2835
I
BACKGROUND
A. Facts and Immigration Court Proceedings
Mr. Tarraf is a native and citizen of Lebanon. Since
entering the United States unlawfully through Mexico in
2000, Mr. Tarraf has married a United States citizen; they
have two daughters, also United States citizens.1 After a
traffic stop in October 2001, Mr. Tarraf was brought to the
attention of immigration authorities, was arrested and
placed in removal proceedings. Before the IJ, he conceded
removability on the basis of his unlawful presence, but
requested asylum, withholding of removal and CAT relief.
According to his testimony at the removal hearing,
Mr. Tarraf fears persecution by Hezbollah, a group the
State Department Reports describe as an “Iranian-backed
Shi’a Muslim faction” that “undermine[s]” the central
government of Lebanon.2 A.R. at 173. He claims that
1
Mr. Tarraf did not seek relief from removal on the basis of this
marriage while he was in proceedings before the IJ and BIA.
Therefore, we are concerned only with Mr. Tarraf’s eligibility
for relief on the basis of his claimed fear of persecution and
torture if removed to Lebanon.
2
In order to demonstrate that he was persecuted within the
meaning of the law, Mr. Tarraf must show that the harm he
suffered was either at the hands of the government of Lebanon
(or its agents) or that the government of Lebanon was unable or
unwilling to protect him from the responsible parties. See
Guchshenkov v. Ashcroft, 366 F.3d 554, 557 (7th Cir. 2004). Mr.
Tarraf testified that he requested assistance from the Lebanese
authorities every time he was targeted by Hezbollah, but that
(continued...)
No. 06-2835 3
Hezbollah both has accused him of being an Israeli col-
laborator or spy and has recruited him aggressively to join
its cause. Mr. Tarraf contends that, because neither he nor
2
(...continued)
they refused because Hezbollah was “part of the government.”
A.R. at 108. The Attorney General has not raised any challenge
to Mr. Tarraf’s asylum eligibility on the basis of a failure to meet
this state action requirement. We therefore take as established,
for present purposes, that if Hezbollah is responsible for
persecution, it is either an agent of the state of Lebanon or a
force within Lebanon that the Lebanese government is unable
or unwilling to control.
We note that certain language in Hor v. Gonzales, 400 F.3d 482(7th Cir. 2005) (“Hor I”), if read broadly, could suggest that when
an alien has been targeted by an armed insurgency (rather than
the government itself), he can never establish that he has been
persecuted within the meaning of the law. In Hor I, we denied
Hor’s motion for a stay of removal, because we concluded that
he was unlikely to succeed on the merits of his asylum claim. We
noted that Hor claimed to be aligned with the government
against the insurgency, and that the government had been
successful in its efforts to protect Hor. Id. at 485-86. Hor’s case
was subsequently heard by a merits panel. Hor v. Gonzales, 421
F.3d 497 (7th Cir. 2005) (“Hor II”). In that subsequent decision,
we vacated the Board’s denial of his requests for relief. We
clarified that “nongovernmental persecution is much less
common than governmental persecution,” but that persecution
by private actors can give rise to viable asylum claim. Id. at 501(“You cannot even claim asylum on the basis of persecution by
a private group unless the government either condones it or is
helpless to prevent it, but if either of those conditions is satisfied, the
claim is a good one.” (emphasis added)). To the extent that Hor I
might be read to suggest an opposite conclusion, Hor II instructs
that it should not be over-read.
4 No. 06-2835
his family has acquiesced to these demands, they have
been repeated targets of threats and violence committed by
Hezbollah.
Prior to his merits hearing, Mr. Tarraf submitted an
asylum application with the assistance of counsel. He
attached limited supporting documents, including a brief
statement that provided certain details regarding his
claim as well as a letter from his older brother that pur-
ported to corroborate Mr. Tarraf’s history with Hezbollah.
At his removal hearing, Mr. Tarraf testified, in support of
his requests for relief, about three main incidents. First, he
stated that his brother, Mohsen Tarraf, was killed by
Hezbollah in 1990. The record included a copy of Mohsen’s
death certificate written in Arabic, but the translation
included in the record only states his name, village and
date of death, without any information about the cause.
Mr. Tarraf’s testimony itself provided few other details. He
said only that his brother drove a taxi and that Hezbollah
tried to “send stuff with him”; he testified both that
Hezbollah did not pay Mohsen and that Mohsen “declined
to take stuff from them and then they killed him.” A.R. at
109. According to Mr. Tarraf, because of his brother’s
death, he left Lebanon in fear of Hezbollah. See id. at 96. He
began living and working primarily in Côte d’Ivoire, but
returned to Lebanon for periods of one to two months
almost every year thereafter until 2000.3
According to Mr. Tarraf, the second incident occurred on
his return home to Lebanon in 1994. He testified that he
3
Some of these return trips to Lebanon followed his own health
problems that arose while abroad in Africa. Other return trips
related to his family obligations and still others corresponded
to additional significant life events.
No. 06-2835 5
went to visit his ill mother in her home in Maaroub, an
hour and a half outside of Beirut. He stated that he traveled
to the house at night, and, while he was there, Hezbollah
came looking for him. They came to the door and spoke to
his father, asking whether Ahmad was home and whether
they could speak with him. Mr. Tarraf’s father apparently
sent them away, and Mr. Tarraf waited in the home for
two hours before attempting to leave. As he headed for
his car, they called to him, and he tried to run away. He
stated that they threw a grenade at him and that they
shot him in the leg and in the back. Afterwards, he was
taken to a Hezbollah clinic where he stayed for three days.
When he was asked why Hezbollah had targeted him, he
told the court, “they want me to work for them and I used
to travel a lot and they used to—they say I’m [a] spy for
Israel.” Id. at 102. Mr. Tarraf stated that he told them that
he agreed to work for them and was allowed to leave the
hospital, but that he immediately headed for Beirut
where he left again for Africa.
Mr. Tarraf also stated that, after this incident, he contin-
ued to travel back and forth between Côte d’Ivoire and
Lebanon. Although he was not sure whether he had
returned to Lebanon in 1995, he did return in 1996 to
become engaged and again in 1997 around the time of his
marriage. He told the court that, on this trip, “[Hezbollah]
knew that [he] was there” and, therefore, he “ran away
again” to Côte d’Ivoire. Id. at 104. Mr. Tarraf claimed that
Hezbollah was “looking for [him] because they wanted
[him] to work for them” and that people in his neighbor-
hood would inform Hezbollah on each of his returns to
Lebanon. Id. at 105. On these return trips, he stayed with
his wife’s family or with friends in order to avoid
Hezbollah.
6 No. 06-2835
Mr. Tarraf stayed in Côte d’Ivoire until turmoil within
that country forced his return to Lebanon in 1998 for a
period of five months; thereafter, he went briefly to France,
and returned again to Lebanon. In November 1998, Mr.
Tarraf traveled to Syria and then to Mexico, where he
attempted to enter the United States. He claims that
Mexican officials would not allow his travel to the United
States from Mexico City, and so again he returned to
Lebanon and remained there for a year and a half.
Finally, Mr. Tarraf testified about an incident that
occurred just before his actual arrival in the United States.
He claimed that, in April of 2000, Hezbollah again came
looking for him. He stated that he moved from house to
house while in Lebanon, but that Hezbollah members
found him and arrested him at a friend’s house. He stated
that they held him for one month until he agreed to work
with them.4 Upon prodding from the IJ about what oc-
curred during this period of detention, he testified that
Hezbollah “beat [him] up so bad everywhere.” Id. at 111.
He escaped and traveled to Mexico; from there he entered
the United States. Mr. Tarraf stated that, since he had
arrived in the United States, his apartment in Lebanon
had been confiscated by Hezbollah and his 21 year-old
nephew had been killed by them. Id. at 113-15. He testified
that Hezbollah continued to look for him, asking even his
seven year-old daughter if she knew where he was. He
stated that, if he was returned, he feared that Hezbollah
4
In his written statement, Mr. Tarraf had stated that he was
arrested while staying with his parents and that he was held for
only three days. The additional letter from his brother Abo
Tarraf, included with his asylum application, also written in
English, states that the detention was for a period of three days.
No. 06-2835 7
was “[j]ust going to torture [him] and torture [him].” Id.
at 118.
The IJ attempted to clarify with Mr. Tarraf why he
believed that Hezbollah had targeted him for the intense
recruiting he had described. In response, Mr. Tarraf stated,
“[t]hey wanted me to execute some operation for them,
could be in Israel or anywhere outside Lebanon and they
said they pay me any amount of money but I declined.” Id.
at 109. The IJ pressed Mr. Tarraf on why Hezbollah wanted
him in particular, and he stated, “I didn’t have any training
of any kind or anything. . . . I used to travel a lot. It was
easier for me to get visas wherever I want to go.” Id. at 110.
The IJ asked why Hezbollah would assault him as part of
an attempt to recruit him, and Mr. Tarraf responded, “they
just keep beating me up until I agree.” Id. at 113.
When Mr. Tarraf had finished his substantive testimony,
the IJ confronted him with inconsistencies between his live
testimony and the statements in his asylum application
that had been prepared with the assistance of the same
attorney who represented him at the hearing. See id. at 119.
Specifically, the IJ noted that Mr. Tarraf’s written statement
said that he had been captured by Hezbollah in 2000
while at his parents’ house, although at his hearing he
repeatedly had testified that he was at his friend’s house.
The IJ also noted that the written statement indicated that
he had been held for three days, not one month, as Mr.
Tarraf had maintained in court. Finally, the IJ questioned
him regarding the varying descriptions of his detention: In
his written statement, Mr. Tarraf indicated that Hezbollah
had questioned and pressured him during this time, but he
made no mention of any physical abuse, although at his
hearing Mr. Tarraf testified several times that he was
repeatedly beaten and tortured. Mr. Tarraf stated that
8 No. 06-2835
perhaps translation difficulties troubled the earlier state-
ment, but that he stood behind his in-court testimony
relating to his detention in 2000. See id. at 119. The IJ noted
that his attorney speaks Arabic and seemed to question
whether that explanation was plausible.
B. The Decision of the IJ
The IJ denied Mr. Tarraf’s requests for asylum, withhold-
ing of removal and CAT relief.
First, with respect to his asylum claim, he noted that Mr.
Tarraf had filed his application more than one year after
entering the country and had not demonstrated changed or
exceptional circumstances to overcome the statutory bar
in 8 U.S.C. § 1158(a)(2)(B).
Turning to his claim for withholding of removal, the IJ
reviewed Mr. Tarraf’s in-court testimony. He noted the
claims of his brother’s murder in 1990 and of the 1994
incident in which Mr. Tarraf was shot, but continued,
“despite his refusal to support the Hezbollah, he continued
to return to Lebanon every year without great difficulty,”
including one stretch of more than a year shortly before
leaving for the United States in 2000. A.R. at 50. The IJ
noted that his final departure followed, according to Mr.
Tarraf, an arrest and detention of a month, during which
time he was beaten and pressured to join Hezbollah; he
also noted that Mr. Tarraf believed that he would be
harmed or killed for his continued refusal to cooperate
with Hezbollah.
After reviewing the Government’s objections to relief, the
IJ determined that Mr. Tarraf’s applications should be
denied. He concluded that Mr. Tarraf’s testimony was not
No. 06-2835 9
credible and that he had failed to explain the discrepancies
or provide corroborative evidence or detailed facts
“affect[ing] his credibility and also prevent[ing] him from
meeting his standard of proof.” Id. at 52.
On the credibility issue, the IJ noted that a petitioner’s
testimony alone can establish the basis for asylum, but
must be detailed, credible and persuasive, all of which he
found lacking in this case. The IJ stated that, if Mr. Tarraf
had feared persecution since 1990 when his brother was
killed, his repeated trips to Lebanon undercut his claimed
fear. The IJ next considered the 1994 incident in which
Mr. Tarraf testified that he had been shot by Hezbollah
while leaving his parents’ home. The IJ noted that
Mr. Tarraf had been taken by the shooters to receive
medical treatment and was permitted to leave the clinic
without incident. The IJ further observed that Mr. Tarraf
had provided virtually no details in his description of this
event. Again, the IJ noted that he returned home on
numerous occasions following the incident. Under these
circumstances, the IJ concluded that this incident did
not support a finding that Hezbollah sought to harm
Mr. Tarraf.
“More significant” to the credibility issue, according to
the IJ, were the “drastic” discrepancies between the writ-
ten application and the in-court testimony, specifically in
regard to the final claimed incident in 2000. Id. at 54. Given
that Mr. Tarraf had left Lebanon permanently in response
to this final incident, the IJ concluded that the discrepancies
“went to the heart of” Mr. Tarraf’s credibility and his claim.
Id. The IJ did not believe that it made sense that the most
serious allegations of persecution were not presented or
were grossly understated in Mr. Tarraf’s written applica-
tion submitted before trial. Therefore, the IJ concluded that
10 No. 06-2835
Mr. Tarraf’s “in-[c]ourt contention that he was held for one
month and tortured by Hezbollah [was] simply not credible
in light of this inconsistency.” Id. at 55.
The IJ went on to state that, even if Mr. Tarraf was shot in
1994 and detained in 2000 for the shorter period of
three days that he had described in his written application,
those incidents did not rise to the level of past persecution.
The IJ ruled that, if Mr. Tarraf had been shot in 1994, the
circumstances surrounding the injury as described “remain
unclear.” Id. at 56. The three-day detention and questioning
without “any evidence that he was seriously injured, that
he needed medical attention or hospitalization following
his detention” did not support a finding of past persecu-
tion. Id.Having found no past persecution, and finding that the
fear of future persecution rested on the testimony regard-
ing past events that he had ruled was “exaggerated and
false,” the IJ stated that Mr. Tarraf had not shown that it
was more likely than not that he would be persecuted if
returned. Id. Because he already had determined that the
testimony was not credible, the IJ further stated that the
absence of corroborative evidence was fatal to Mr. Tarraf’s
claim. The IJ denied the claim for CAT relief on the same
basis.
C. The Decision of the BIA
The Board adopted and affirmed the decision of the IJ. In
its one-paragraph of analysis, the Board stated only that
(1) it concurred that no exception to the one-year deadline
for asylum applications applied; (2) it did not find the
IJ’s adverse credibility finding clearly erroneous on the
record presented to it; and (3) it agreed with the IJ that the
No. 06-2835 11
specific inconsistency between the statement and the
testimony was material, as it related to “the length of his
alleged detention and the severity of his treatment, which
suggests that [he] is attempting to embellish the basis for
his asylum claim.” Id. at 2. The Board “agree[d] with the
[IJ] that this inconsistency goes to the heart of [Mr. Tarraf’s]
claim and undermines [his] credibility.” Id. Accordingly,
the Board dismissed the appeal.
Mr. Tarraf timely petitioned for review in this court,
pursuing only his claims for withholding of removal and
CAT relief.5
II
DISCUSSION
Because the BIA adopted and affirmed the opinion of the
IJ, we review the IJ’s decision as supplemented by any
discussion in the BIA’s opinion. Mema v. Gonzales, 474 F.3d
412, 416 (7th Cir. 2007). Mr. Tarraf raises three challenges
to the decision of the IJ and BIA.6 First, he claims that the IJ
5
Mr. Tarraf has not asked this court to review the portion of the
IJ’s decision denying him asylum. See 8 U.S.C. § 1158(a)(3)
(providing, in pertinent part, that no court shall have juris-
diction to review decisions regarding the timeliness of asylum
applications and the applicability of the statutory exceptions).
6
We note that the Government raised a jurisdictional challenge
in its brief, contending that Mr. Tarraf had failed to file his
petition for review in this court within the thirty-day time
period provided by 8 U.S.C. § 1252(b)(1). We informed the
Government at oral argument that this court was closed for a
holiday at the end of the thirty-day period and, therefore, that
(continued...)
12 No. 06-2835
applied an incorrect standard in making his adverse
credibility determination. Next, he claims that the IJ’s
conclusion that he did not suffer past persecution was
error. Finally, he claims that the IJ erred in denying sum-
marily his claim for CAT relief.
We review a decision denying withholding of removal
and CAT relief under the deferential substantial evidence
standard. Boci v. Gonzales, 473 F.3d 762, 767 (7th Cir. 2007);
Pavlyk v. Gonzales, 469 F.3d 1082, 1087 (7th Cir. 2006).
Under this standard, we shall grant the petition only when
the record compels the conclusion that the alien was
entitled to the relief sought. Boci, 473 F.3d at 767. An alien
seeking withholding of removal bears the burden of
demonstrating a clear probability that he will face persecu-
tion if removed. Shymelskyy v. Gonzales, 477 F.3d 474, 481
(7th Cir. 2007) (citing INS v. Stevic, 467 U.S. 407, 410 (1984)).
“The question under [the clear probability] standard is
whether it is more likely than not that the alien would be
subject to persecution.” INS v. Stevic, 467 U.S. 407, 424
(1984). The standard for establishing entitlement to CAT
relief is similarly stringent. Gomes v. Gonzales, 473 F.3d 746,
757 (7th Cir. 2007) (noting that, to obtain CAT relief, an
alien must demonstrate that it is more likely than not that
he will be tortured if removed). With these general con-
straints on our review in mind, we now examine each of
Mr. Tarraf’s claims.
6
(...continued)
Mr. Tarraf’s filing was timely. The Government thereafter orally
withdrew its jurisdictional challenge.
No. 06-2835 13
A. Credibility Determination
Mr. Tarraf claims that the IJ focused on “only two
discrepancies” and therefore failed to consider the totality
of circumstances in making an adverse credibility deter-
mination. Appellant’s Br. at 11.
Credibility determinations are factual findings that
we review deferentially. Shmyhelskyy, 477 F.3d at 479. We
shall uphold an adverse credibility determination if the
record, considered as a whole, does not compel a con-
clusion to the contrary. Feto v. Gonzales, 433 F.3d 907, 912
(7th Cir. 2006) (citing Kenyeres v. Ashcroft, 538 U.S. 1301,
1306 (2003)); Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir.
2004). “We will not overturn adverse credibility determina-
tions simply because the evidence might support an
alternate finding.” Kllokoqi v. Gonzales, 439 F.3d 336, 341
(7th Cir. 2005); see also Giday v. Gonzales, 434 F.3d 543, 553
(7th Cir. 2006) (noting that an adverse credibility deter-
mination cannot be reversed simply because this court
would conclude that a positive credibility finding was
supported by substantial evidence). Nevertheless, this
court also has stated that it will not hesitate to overturn an
adverse credibility determination when the IJ fails to give
specific, cogent reasons that bear a legitimate nexus to the
finding. Ayi v. Gonzales, 460 F.3d 876, 880 (7th Cir. 2006).
We thus have reversed when the discrepancies were minor,
Adekpe v. Gonzales, 480 F.3d 525, 530-31 (7th Cir. 2007),
when they concerned irrelevant details in light of the
alien’s broader claim of persecution, see Kllokoqi, 439 F.3d
at 341-42 (reversing the credibility determination where
“the number of traumatic and tragic events that have
happened to” the alien made his lack of memory on the
name of a high school he attended a decade earlier insuffi-
cient to support the finding), or when the IJ failed to
14 No. 06-2835
consider the alien’s reasonable explanations offered for
a discrepancy, see Shtaro v. Gonzales, 435 F.3d 711, 716-17
(7th Cir. 2006) (faulting an IJ for failing to “attempt to
ascertain whether [the discrepancies] could be accounted
for”).
We further have noted that the failure to mention, in an
asylum application, certain details that later appear in live
testimony does not render an alien’s testimony per se
incredible. Capric v. Ashcroft, 355 F.3d 1075, 1090 (7th Cir.
2004) (citing Lopez-Reyes v. Ashcroft, 79 F.3d 908, 911 (9th
Cir. 1996)). We repeatedly have stated, however, that
when an IJ’s adverse credibility determination is based on
inconsistencies between an alien’s earlier statements and
his testimony at his hearing that go to the heart of his
claim, that are substantive and that are not easily ex-
plained or superficial, we shall uphold the adverse deter-
mination.7
The discrepancies in this case concern the most serious
allegations of persecution, and, indeed, relate to one of only
7
Adekpe v. Gonzales, 480 F.3d 525, 531 (7th Cir. 2007); see also
Shmyhelskyy v. Gonzales, 477 F.3d 474, 480-81 (7th Cir. 2007)
(upholding an adverse credibility determination based on the
alien’s unexplained failure in the written application to mention
the most severe allegations of detention and physical violence
that were described at trial); Korniejew v. Ashcroft, 371 F.3d 377,
384-85 (7th Cir. 2004) (upholding an adverse credibility deter-
mination when the alien failed to explain adequately the
omission from her testimony of the most recent incident
described in her written statement); Capric v. Ashcroft, 355
F.3d 1075, 1090 (7th Cir. 2004) (“[I]t is reasonable to expect
particularly invasive events to be mentioned in asylum applica-
tions . . . .”).
No. 06-2835 15
two events Mr. Tarraf described in which he personally
was targeted. Mr. Tarraf’s in-court testimony was that he
was taken from his friend’s home, detained, severely
beaten, tortured and interrogated for a period of thirty days
before he finally relented to his captors’ demands that he
join Hezbollah. His asylum application, by contrast,
had stated that he was taken from his parents’ home
and detained and questioned for three days; he had made
no mention of any physical violence or torture in his
asylum application.
The BIA found that the changed accounts constituted
an attempt by Mr. Tarraf to “embellish” his claim. A.R. at
2. The record, considered in whole, does not compel a
contrary conclusion. The changed account substantially
alters the length and severity of the critical incident that
Mr. Tarraf says precipitated his final journey to the United
States. In addition, although not mentioned by the IJ in his
decision, a letter submitted along with the asylum applica-
tion from Mr. Tarraf’s brother states, “they found you and
put you in the prison 3 dey [sic] until you agreed to work
with them. At last you escaped to America . . . .” A.R. at
166-67. To the extent that the letter corroborates any part of
Mr. Tarraf’s claim, it supports the version of events the IJ
ultimately credited and considered, a three-day deten-
tion under less severe conditions than those alleged in
Mr. Tarraf’s in-court testimony. The IJ’s additional determi-
nation that Mr. Tarraf’s description of events lacked
sufficient detail further supports the IJ’s credibility find-
ing. See Balogun v. Ashcroft, 374 F.3d 492, 499-500 (7th Cir.
2004) (noting that, among relevant considerations in
determining credibility are internal consistency and level
of detail). Mr. Tarraf’s description of the major events
involved in his claim was perfunctory; even when pressed
16 No. 06-2835
for details, Mr. Tarraf said only that he was “tortured very
badly” or “so beaten up,” A.R. at 111.
Finally, Mr. Tarraf suggests that the IJ erred in declining
to credit his explanation that perhaps language difficulties
contributed to errors in the original statement. The IJ did
not fail to inquire into the reasons for the discrepancy, see
Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir. 2003), and
Mr. Tarraf gives no explanation of why the IJ should
have been required to credit his explanation, especially
where, as here, the IJ noted that Mr. Tarraf was represented
by the same Arabic-speaking attorney both at the time of
his application and his hearing. See A.R. at 120; see also Feto,
433 F.3d at 911 (“The IJ was not, however, compelled to
accept [the alien’s] explanation for the plain inconsistencies
in his story.”); cf. Chen v. Gonzales, 420 F.3d 707, 710 (7th
Cir. 2005) (noting that, although “[s]ignificant discrepan-
cies among different versions of an alien’s statement are
generally a permissible basis for an adverse credibility
decision [,] . . . . initial asylum applications should not
always be considered completely reliable, particularly when
filled out without the assistance of counsel”) (emphasis added).
Mr. Tarraf’s apparent language difficulties may have
contributed, in some measure, to the discrepancies between
the different versions of his story; this possibility, how-
ever, does not mean that it was impermissible for the IJ to
conclude that the character of the particular discrepancies
in issue should weigh against the petitioner.
The IJ’s credibility analysis also mentions Mr. Tarraf’s
repeated trips back into Lebanon following his brother’s
alleged murder and the shooting incident in 1994. The IJ’s
opinion states that this travel “undercut [Mr. Tarraf’s]
credibility concerning his fear.” A.R. at 39. A proposition
that any voluntary return to one’s home country renders
No. 06-2835 17
any claim regarding past and future persecution incredible
would be far too broad a proposition to serve as a work-
ing rule for assessing an alien’s testimony. Although we
have recognized that return travel might be an appropriate
factor weighing against an alien’s credible fear,8 each case
must be considered in light of its own specific facts. There
well may be circumstances when a person who legitimately
fears persecution nevertheless might elect to return tempo-
rarily to his home country. Health conditions made worse
abroad, health conditions of family members and other
major life events might drive a person to choose to take
certain risks and return home, while doing his best to
mitigate them. Here, Mr. Tarraf contended that his trips
could be justified in these terms. While we may have
reached a different conclusion, we cannot say that, under
the circumstances here, the IJ erred in characterizing the
trips as he did.
In any event, even without this factor weighing against
his credibility, we believe that the other legitimate con-
siderations that influenced the IJ’s adverse credibility
determination are sufficient to sustain that ruling. We
therefore uphold that determination as supported by
substantial evidence.
8
See Apouviepseakoda v. Gonzales, 475 F.3d 881, 893 (7th Cir.
2007) (holding that, when the alien previously had entered and
left the United States on three occasions after claiming to have
endured severe incidents of past persecution, the IJ was not
“compelled to believe that . . . return trips [to the alien’s home
country] are what a person in dire fear of persecution . . . would
do”).
18 No. 06-2835
B. Past Persecution
The IJ ruled that, even crediting Mr. Tarraf’s testimony
to the extent of the unembellished story of a three-day
detention in 2000 and the shooting in 1994, those incidents
did not support a finding of past persecution.9 We review
the conclusion that the harm the petitioner may have
suffered did not rise to the level of persecution under the
substantial evidence standard. Diallo v. Ashcroft, 381 F.3d
687, 698 (7th Cir. 2004). The IJ did not believe that
Mr. Tarraf had demonstrated that his final detention
resulted in serious injuries requiring medical attention or
hospitalization. That the IJ declined to credit the full extent
of Mr. Tarraf’s claimed harms does not, in and of itself,
require his subsequent conclusion that Mr. Tarraf did not
suffer past persecution. Physical abuse causing serious
injuries is not the sine qua non of persecution. Dandan v.
Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003). Persecution
can include confiscation of property, surveillance and
behavior that threatens future harm. Gomes, 473 F.3d at 754
(citing Capric, 355 F.3d at 1084). Conduct can rise to the
level of persecution without being life-threatening, includ-
ing even such acts as severe economic deprivation. Capric,
355 F.3d at 1084. Frequency and severity of the harms
suffered by a petitioner, however, remain relevant factors
in an inquiry into whether those particular harms compel
a court to conclude that the alien suffered persecution. See
Dandan, 339 F.3d at 573. We further have recognized
that actions such as detention, arrest, interrogation,
prosecution, imprisonment, illegal searches, confisca-
9
With respect to the 1994 incident, the IJ stated only that the
circumstances of this incident remain “unclear.” A.R. at 41.
No. 06-2835 19
tion of property, surveillance, beatings, or torture
might cross the line from harassment to persecution.
However, recognizing that these sorts of activities
might rise to the level of persecution is not the equiva-
lent of saying that they always do. Persecution claims
cannot simply be evaluated against a generic checklist.
Review of an applicant’s past experience must be
carried out on the most specific level—it is the details
that reveal the severity of the particular situation.
Liu v. Ashcroft, 380 F.3d 307, 313 (7th Cir. 2004) (internal
quotation marks and citation omitted) (emphasis in
original).10
As Liu acknowledges, many of the claims Mr. Tarraf
makes in his testimony as a whole could support a finding
of past persecution, and indeed, on another record, this
court might conclude that they compel such a finding.11 The
extremely scant details in Mr. Tarraf’s testimony, however,
10
See also Mema v. Gonzales, 474 F.3d 412, 417-18 (7th Cir. 2007)
(kidnapping at gunpoint, interrogation and beating did not
compel a finding of past persecution); Prela v. Ashcroft, 394
F.3d 515, 518 (7th Cir. 2005) (repeated interrogations and twenty-
four hour detention did not compel a finding of persecution);
Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (three-day
detention, in which alien was deprived of food and beaten,
leaving his face swollen, did not compel a finding of past
persecution).
11
We note that the IJ did not discuss specifically any of Mr.
Tarraf’s testimony other than the two most significant incidents
of claimed persecution, in which Mr. Tarraf himself came into
contact with Hezbollah. Our conclusion that the record does not
compel a finding of past persecution, however, is based on the
totality of evidence Mr. Tarraf produced in support of his
claims. See Bejko v. Gonzales, 468 F.3d 482, 486-87 (7th Cir. 2006).
20 No. 06-2835
prevent this court from reaching that conclusion in this
case. We do not hold that a petitioner must provide a blow-
by-blow, minute-by-minute account of his experiences in
his home country in order to establish past persecution;
we note only that something more than the general allega-
tions of detention and torture provided to the IJ in this
case will compel a finding of past persecution. On the
record before us, the IJ’s conclusion that Mr. Tarraf did not
carry his burden to establish past persecution is supported
by substantial evidence.
C. CAT Relief
Mr. Tarraf’s final claim in his petition is that the IJ denied
him due process of law by summarily rejecting his request
for CAT relief without applying the proper standards.
This court lacks jurisdiction to review this claim, how-
ever, because it was not presented to the BIA.12 8 U.S.C.
§ 1252(d)(1); see also Pjetri v. Gonzales, 468 F.3d 478, 481 (7th
Cir. 2006) (“Where . . . a due process argument is based on
procedural failings that the BIA is capable of addressing,
the petitioner must exhaust his or her remedies at the
BIA before bringing the claim in this court.”).
12
Mr. Tarraf claims that, although he did not couch his appeal
of the denial of CAT relief in due process terms, he did fairly
present this claim to the BIA. His brief to the Board does state
that he appeals the denial of CAT relief. In substance, how-
ever, that brief discusses only the IJ’s determinations that: (1)
Mr. Tarraf is statutorily barred from asylum, (2) the harm did
not rise to the level of persecution, (3) that there was no clear
probability of future persecution, and (4) that Mr. Tarraf was
incredible and his claim was unsupported by corroboration. See
A.R. 11-14.
No. 06-2835 21
Conclusion
The agency’s conclusions that Mr. Tarraf’s in-court
testimony was not credible and that, to the extent it could
be credited, it did not demonstrate past persecution, are
conclusions supported by substantial evidence on the
administrative record as a whole. Therefore, we deny his
petition for review and affirm the decision of the Board.
PETITION DENIED
DECISION AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-30-07