Rizk v. Holder
2011 U.S. App. LEXIS 2
| 9th Cir. | 2011Background
- Rizk, an Egyptian citizen, immigrated to the United States in 1998 with his wife Attia and two children; they remained beyond their visa authorized periods and faced removal proceedings.
- The family sought asylum, withholding of removal, and CAT relief; the children claimed derivative relief via Attia.
- An IJ conducted a three-day hearing focusing on three incidents, especially a 1998 break-in and subsequent police actions against Rizk.
- The IJ found Rizk and Attia not credible, citing numerous internal and inter-party inconsistencies, including discrepancies with a police report about the break-in.
- The BIA adopted the IJ’s adverse credibility ruling as to Rizk, but did not resolve Attia’s appeal, leading to procedural questions about exhaustion and scope.
- The Ninth Circuit upheld the IJ’s adverse credibility finding as to Rizk, denying asylum, while vacating or remanding Attia, John, and Joseph for BIA consideration on derivative relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantial evidence for credibility | Rizk argues inconsistencies do not establish adverse credibility. | IJ found material inconsistencies with ample opportunity to explain; substantial evidence supports adverse credibility. | Adverse credibility affirmed; Rizk denied asylum. |
| Opportunity to explain inconsistencies | Rizk had chances to reconcile inconsistencies and provide explanations. | The IJ provided opportunity to explain and reasonably rejected implausible explanations. | Yes; failure to provide plausible explanations supports credibility ruling. |
| BIA's treatment of Attia's appeal | BIA failed to adjudicate Attia and derivatives, violating exhaustion and due process. | Record evidence supports remand to address Attia’s claims. | Remand warranted; Attia’s appeal must be decided by the BIA. |
| Derivative relief | Attia, Joseph, and John should obtain relief derivatively if Attia’s appeal is resolved in their favor. | Derivative relief requires proper BIA decision on Attia’s appeal. | Remand; derivative relief to be determined upon BIA decision. |
Key Cases Cited
- Rivera v. Mukasey, 508 F.3d 1271 (9th Cir. 2007) (considers whether inconsistencies undermine credibility when explained)
- Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005) (major inconsistencies and patterns of dishonesty support adverse credibility)
- Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004) (need for reasonable and plausible explanations for discrepancies)
- Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009) (opportunity to explain apparent discrepancies; preference for cogent reasons)
- Wang v. INS, 352 F.3d 1250 (9th Cir. 2003) (upholds adverse credibility where basis is substantial evidence to heart of claim)
- Chen v. Ashcroft, 362 F.3d 611 (9th Cir. 2004) (remand when BIA has not resolved essential asylum issues)
- Elias-Zacarias, 502 U.S. 478 (Supreme Court, 1992) (governs standard of review for credibility determinations; even strongly supported)
- Osorio v. INS, 99 F.3d 928 (9th Cir. 1996) (limits on need for multiple opportunities to explain; reasonableness standard)