Titilayo Falaja (Titilayo) and her son Adebayo Falaja (Adebayo) appeal the decision of the Board of Immigration Appeals (BIA) denying their applications for asylum, withholding of removal, relief under the United Nations Convention Against Torture (CAT), and adjustment of status to lawful permanent residents. Adebayo also moves for a stay pending appeal of the BIA’s grant of voluntary departure. We affirm the decision of the BIA and grant Adebayo’s motion for a stay.
I.
The Falajas are natives and citizens of Nigeria who entered the United States as nonimmigrant visitors on February 1, 1992, and remained beyond their authorized stay. On July 25, 1994, Titilayo filed an application for asylum and withholding of removal that included Adebayo as a
At a hearing before an immigration judge (IJ) on February 3, 2000, the Fala-jas conceded the charge of removability. They declined to designate a country of removal, and the IJ designated Nigeria. The Falajas renewed their request for asylum, withholding of removal, protection under the CAT, or voluntary departure. Following a hearing on the merits in December 2000, wherein the Falajas testified and submitted evidence, the IJ denied relief after finding significant aspects of Titi-layo’s testimony not credible. In lieu of removal, however, the IJ granted both petitioners voluntary departure.
The Falajas appealed to the BIA. During the pendency of the appeal, the Falajas asked the BIA to remand the case to the IJ for consideration of an application for adjustment of status — to that of aliens admitted for permanent residence — based upon Titilayo’s receipt of an employer-based immigrant visa. See id. § 1255(a). The BIA granted the motion to remand. After holding a hearing on the adjustment of status application, the IJ denied the application. The IJ concluded that Titi-layo was ineligible for adjustment of status because she failed to meet the statutory requirement that a petitioner be “admissible to the United States.” Id. The IJ found Titilayo inadmissible pursuant to Section 212(a)(6)(C)(i) of the Immigration and Naturalization Act (Act), which precludes admission to an alien who seeks to procure an immigration benefit by “willfully misrepresenting a material fact.” Id. § 1182(a)(6)(C)(i). Relying on its earlier finding that Titilayo was not credible, the IJ determined that the Falajas made willful misrepresentations of material facts in order to secure the benefit of asylum. The IJ then reconsidered its previous grant of voluntary departure and entered a new order denying voluntary departure based on its finding of willful misrepresentations.
The Falajas appealed to the BIA. The BIA affirmed the IJ’s decision denying asylum, withholding of removal, and relief under the CAT based upon the IJ’s adverse credibility finding. The BIA also affirmed the IJ’s decision denying the application for adjustment of status based upon findings that Titilayo made willful misrepresentations of material facts and testified falsely under oath in an attempt to obtain asylum. Concluding that Titi-layo’s false statements before the IJ barred her from establishing the requisite good moral character for voluntary departure, the BIA affirmed the IJ’s denial of Titilayo’s request for voluntary departure. The BIA found insufficient evidence, however, to support a finding that Adebayo gave false testimony and accordingly vacated the portion of the IJ’s decision denying him voluntary departure. The BIA granted Adebayo a thirty-day voluntary departure period. This appeal followed.
The Falajas’ basic claim is that they have a well-founded fear of religious persecution, particularly by Titilayo’s father, should they return to Nigeria.
2
Titilayo
Titilayo also claims that she was persecuted because of her religion outside the family home. She testified that in October 1986, as she was leaving a Christian church with a group of Christians, six Muslims approached and yelled insults at them. Then the Muslims began beating the Christians, including Titilayo. No one was seriously injured. Titilayo also testified that in October 1987, Muslims interrupted the church service that she was attending by singing anti-Christian songs and threatening to kill the Christians. The Muslims beat the Christians with long sticks, and Titilayo was bruised in the attack. Titilayo and other Christians were then arrested and detained for four hours before being released.
Because she is Christian, Titilayo claims that she was thwarted in her efforts to own a farm and restaurant in Nigeria. Shortly after she purchased a farm, it was burned while she was out of the country. A neighbor told Titilayo that the farm was burned because she was a Christian. For a short time, Titilayo also operated a restaurant in a bank building. The restaurant was closed by the bank, however, when visiting bank executives complained that Titilayo was a Christian.
Titilayo testified that other members of her family who were Christians were also persecuted. Her sister was injured when Muslims raided her Christian church; she later died from the injury. In 1991, her mother-in-law and father-in-law were beaten by Muslims while attending a Christian church. The Muslims set fire to the church. Titilayo’s father-in-law died from injuries sustained in the attack. Titilayo was in the United States at the time, and her husband fled Nigeria and left two of her children with a friend in Lagos, Nigeria. In 1993, Titilayo’s father took the children from the friend’s house and brought them to his house in Kaduna, Nigeria. Titilayo testified that her father abused the children because Titilayo was Christian. Titilayo’s son soon left his grandfather’s house and went to live with
The Falajas seek review of the BIA’s decision to uphold the denial of their requests for asylum, adjustment of status, withholding of removal, and relief under the CAT. Adebayo further seeks a stay of the BIA’s grant of voluntary departure until the issuance of our mandate in this action.
II.
Because the BIA’s decision is the final decision of the agency, it is the subject of our review.
Ismail v. Ashcroft,
III.
We begin our review by examining the BIA’s denial of the Falajas’ petition for asylum and its related denial of withholding of removal and relief under the CAT. Section 208 of the Immigration and Naturalization Act gives the Attorney General discretion to grant asylum to an individual who is a “refugee.” 8 U.S.C. § 1158(b)(1) (2000). A refugee is defined by the Act as an alien who is unwilling or unable to return to his or her country of nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Id.
§ 1101(a)(42)(A). An alien petitioning for asylum bears the burden of proving past persecution or a well-founded fear of future persecution on account of one of the enumerated factors. 8 C.F.R. § 208.13(a) (2004). A well-founded fear is one that is both “subjectively genuine and objectively reasonable.”
Ghasemimehr v. INS,
The BIA’s determination that an alien is not eligible for asylum is reviewed under the substantial evidence standard.
Perinpanathan v. INS,
We find that the BIA’s decision that the Falajas are not eligible for asylum is supported by substantial evidence. Both the IJ and the BIA found Titilayo not credible. This credibility finding was supported by multiple inconsistencies among
First, the IJ was particularly critical of the fact that Titilayo made no mention of abuse by her father, nor the injuries that she allegedly suffered as a result, in either her 1994 application for asylum or her 1999 interview with the asylum officer. The first time that Titilayo related the abuse, its relationship to her religion, and her purported fear of the abuse continuing in the future was at the 2000 asylum hearing. Titilayo attempts to explain her early silence on the matter by asserting that she believed the abuse to be normal until “sometime after she came to the US.” Pet. Br. at 40. She further argues that violence by a family member for religious reasons was not recognized by the BIA as a ground for asylum until 2000, leading her to change the basis of her asylum claim. These explanations fall short. At the time of her asylum interview, Titilayo had been in the United States for seven years, giving her time to learn that domestic abuse is not “normal.” Moreover, in her application for asylum and affidavit in support, Titilayo gave detailed descriptions of many instances of abuse inflicted upon her and her Christian family members by Muslim fundamentalists, yet she only mentioned that her parents had “rejected” her because of her conversion to Christianity. If her father had abused her because of her Christianity, Titilayo likely would have related such abuse to support her claims of Christian persecution by Muslims and would have described the situation as part of her father’s “rejection” of her. “Inconsistencies or omissions in any asylum application that relate to the basis of persecution are not minor but are at ‘the heart of the asylum claim.’ ”
Esaka,
The IJ next noted that when Titilayo finally did discuss the alleged abuse by her father, her testimony on the matter was inconsistent. Titilayo first testified at the asylum hearing that her father last abused her when she lived in his house during her final year of high school. She later testified that her father harmed her even after she moved from his house and was married. Moreover, while the abuse by her father allegedly stopped in the mid-1980s, Titilayo continued to live in Nigeria until February 1992. “The respondent’s ability to stay in Nigeria for approximately another six years or so after the last alleged abuse of her father,” noted the IJ, “would diminish the respondent’s claims regarding the abuse by her father.” IJ Decision of Jan. 10, 2001, at 12. On appeal, Titilayo does not explain the discrepancies in her testimony. Rather, she simply argues that the IJ ignored “the fact that women often are unable to leave their abusers for economic reasons.” Pet. Br. at 43. By Titi-layo’s own testimony, however, this broad assertion does not hold true in Titilayo’s case. While living in Nigeria, Titilayo was employed by Nigerian Airlines for six years and operated a restaurant and a farm. Titilayo testified that “[ejconomically, I can go [back to Nigeria], I can restart my business again by the grace of God.” R. at 570-71. We thus find that the IJ’s conclusion is supported by the record and we accord it substantial deference.
The IJ also found it damaging that Titi-layo failed to corroborate her asylum claim with letters from her family, medical records, or death certificates. Although Titi-layo ‘ did offer a letter written by her daughter in support of the allegation that Titilayo’s father abused her daughter, the letter contradicted Titilayo’s testimony about the year of the beating and the extent of the resulting injuries. Accordingly, the IJ found the letter not credible. Titilayo has not attempted on appeal to explain these inconsistencies or the general absence of documentary evidence.
The IJ found discrepancies between Titi-layo’s and Adebayo’s testimony regarding the year that Titilayo’s mother died and trips that Titilayo’s husband made to the United States to visit Titilayo and Ade-bayo. The Falajas assert that these discrepancies were minor and not material to their asylum claim. While the BIA appears to have adopted all of the IJ’s findings with respect to discrepancies, the BIA stated that “most” of the discrepancies were material to the asylum claim. BIA Decision of Mar. 9, 2004, at 1. The BIA’s decision is unclear as to which discrepancies the BIA considered not material. In any event, we, like the BIA, hold that the discrepancies, taken as a whole, support the IJ’s adverse credibility finding.
We note that the IJ discussed two additional alleged inconsistencies in Titilayo’s testimony as reasons for finding Titilayo not credible. Upon examination of the record, however, we find no support for these additional reasons and therefore conclude that the BIA erred in adopting these specific reasons as support for the IJ’s adverse credibility finding.
3
Never
We conclude that specific, convincing reasons, such as the inadequate and contradictory nature of Titilayo’s testimony, support the BIA’s finding that Titilayo lacked credibility. That finding makes the Falajas ineligible for asylum because they failed to prove persecution or a well-founded fear of future persecution on account of a protected ground.
See Aden v. Ashcroft,
Because we hold that the Falajas failed to demonstrate that they were eligible for asylum, we also hold that the Falajas failed to meet the higher burden of proof required for obtaining withholding of removal.
See Krasnopivtsev v. Ashcroft,
IV.
The Falajas next appeal the portion of the BIA’s decision upholding the
The Attorney General, in his discretion, may adjust the status of an alien
if,
among other things, the alien is “admissible to the United States for permanent residence.” 8 U.S.C. § 1255(a)(2) (2000);
see also Varela,
The Falajas assert that the inconsistencies identified by the IJ to support the IJ’s adverse credibility finding cannot, alone, support a finding that Titilayo willfully misrepresented material facts. The Falajas maintain that the IJ made no finding that the inconsistencies were willfully made and not simply “the result of poor memory or an evolving understanding of the type of abuse which can be characterized as persecution.” Pet. Br. at 31. We recognize that inconsistencies between a petitioner’s asylum application and hearing testimony, as well as internal inconsistencies in a petitioner’s hearing testimony, may not equate to willful misrepresentations. In this case, however, the IJ and BIA specifically found that the inconsistencies were willfully made. The IJ stated, in multiple places, that it did not believe Titilayo’s story. Similarly, the BIA stated that Titilayo’s inconsistent statements constitute “false testimony.” BIA Decision of Mar. 9, 2004, at 2. We find it of no import that the “willful misrepresentation” finding was based on the same facts that support the “adverse credibility” finding, so long as substantial evidence supports both findings, as it does.
See Salas-Velazquez v. INS,
Having reviewed the record, we conclude that substantial evidence supports the BIA’s finding that Titilayo willfully misrepresented material facts in her attempt to gain asylum. This conclusion leads us to hold that, pursuant to the immigration laws, Titilayo is inadmissible to the United States and correspondingly ineligible for adjustment of status. We affirm the BIA’s decision on this matter. 6
y.
The BIA concluded its decision by granting voluntary departure to Adebayo.
7
Pursuant to the BIA’s grant, Adebayo was permitted to depart the United States “within 30 days from the date of this order or any extension beyond that time as may be granted by the district director.” BIA Decision of Mar. 9, 2004, at 3. Twenty-nine days later, the Falajas commenced this appeal and Adebayo moved for a stay of the grant of voluntary departure pending appeal.
8
Our Circuit has determined that we have the power to stay the agency’s grant of voluntary departure while we review a removal order,
Rife v. Ashcroft,
VI.
In summary, we affirm the BIA’s denial of the Falajas’ petitions for asylum, withholding of removal, relief under the CAT, and adjustment of status. We grant Ade-bayo’s motion to stay the BIA’s grant of voluntary departure; the remaining period in which he may voluntarily depart the United States shall begin to run when our mandate in this case is issued.
Notes
. In her 1994 asylum application Titilayo stated that she feared persecution in Nigeria based on religious, ethnic, and political grounds. In 1998, Nigeria became a democ
. First, the IJ discredited Titilayo's testimony that the identical scars on each of her cheeks are the result of cuts inflicted by her father as punishment for her disobedience. The IJ noted that no mention was made of the scarring in Titilayo's asylum application or statement in support. The IJ stated that Adebayo had similar scars on his cheeks, and that Adebayo testified that his sister has the same scars and that he has seen other Nigerians with similar markings on their cheeks. The IJ concluded that it is “more plausible” that the scars are "some sort of a customary thing,” than a result of abuse by Titilayo’s father. IJ Deci
Second, the IJ stated that Titilayo’s testimony regarding whether she was injured or mistreated during her arrest in 1987 was “somewhat contradictory.” Id. at 10. We have reviewed Titilayo’s testimony and find it consistent. Titilayo clearly stated that, while she was injured during the beatings by the Muslims at the church, she was not mistreated while detained at the police station.
. In addition to the adverse credibility finding, the IJ alternatively denied the Falajas’ claims as a matter of law, stating, "In addition, the Court would deny asylum as the respondent has failed to show that she has suffered past persecution based on one of the five grounds enumerated in the Act and also has failed to show that she has a well-founded fear of future persecution based on the five grounds enumerated in the Act.” IJ Decision of Jan. 10, 2001, at 16. Specifically, the IJ found that Titilayo failed to establish a fear of persecution by her father and failed to show that the threat of persecution to Christians exists countrywide.
Id.
at 12-16. The Fala-jas challenge this alternative holding, arguing that the case of
In re
S-A-, 22 I. & N. Dec. 1328 (BIA 2000), mandates the granting of asylum. Pet. Br. at 47-51. Because the BIA upheld the denial of asylum, withholding of removal, and CAT relief solely based on the IJ’s adverse credibility finding and did not address the alternative holding, we need not and do not address the Falajas’ arguments against the alternative holding.
INS v. Ventura,
. Adebayo filed a supplement to his mother’s application for adjustment of status. Thus, Adebayo's eligibility for adjustment was dependent on Titilayo's eligibility for adjustment, and his application was necessarily denied when her application was denied.
.Though the IJ was not required to do so, having found Titilayo not admissible and therefore ineligible for adjustment of status, the IJ went on to note that it would not exercise its discretion to grant adjustment of status. IJ Decision of Feb. 10, 2003, at 3. The Falajas argue that the reason given by the IJ for this decision was erroneous as a matter of law and that their due process rights were violated. Pet. Br. at 33-36. Because the BIA did not address the IJ's extraneous ruling denying discretionaiy relief, we have no jurisdiction to consider the matter.
Ventura,
. The BIA found that no evidence supported a finding that Adebayo, in contrast to his mother, made misrepresentations of material fact or testified falsely.
. Both Titilayo and Adebayo also moved for stay of removal pending appeal, which we granted as unopposed on April 29, 2004.
. It is unclear from our decision in Rife whether we intended the stay of voluntary departure to reinstate the full thirty-day departure period granted by the BIA or simply the days that remained in the departure period at the time the petition for judicial review was filed. We now follow our sister circuits in adopting the later approach.
. The mandate will issue approximately fifty-two days after the issuance of our decision entering judgment. See Fed. R.App. P. 40(a)(1); Fed. R.App. P. 41(b).