Non-Trivial Inconsistencies Between Affidavit and Testimony Sustain Adverse Credibility Under 8 U.S.C. § 1158(b)(1)(B)(iii)

1. Introduction

In Francisco Merino-Angel v. Attorney General United States of America, the United States Court of Appeals for the Third Circuit reviewed a petition challenging the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT).

The petitioner, Francisco Merino-Angel, a native and citizen of El Salvador, claimed he was targeted by MS-13 because his siblings (particularly a sister) served as police officers and were involved in arresting and imprisoning a gang leader. The core litigation issue was not whether such a theory could qualify for protection in the abstract, but whether Merino-Angel’s account of past attacks was credible—because his testimony was the principal evidence supporting all forms of relief.

The Third Circuit’s opinion is designated “NOT PRECEDENTIAL,” but it applies and illustrates the governing statutory and circuit standards for adverse credibility determinations and substantial-evidence review.

2. Summary of the Opinion

The Third Circuit denied the petition for review. It held that substantial evidence supported the IJ’s adverse credibility determination—affirmed by the BIA—because Merino-Angel’s hearing testimony materially diverged from his written affidavit concerning key details of three alleged attacks (a bus-stop knife attack, a workplace attack, and a shooting at his home). The court emphasized that under the asylum credibility statute, an IJ may rely on inconsistencies without regard to whether they “go to the heart” of the claim, and that only trivial inconsistencies are insufficient.

The court also noted that Merino-Angel’s vague due process references were forfeited for failure to develop the argument.

3. Analysis

3.1 Precedents Cited

  • Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003)
    The court cited Dia for the proposition that witness credibility is an issue of fact. This framing matters because factual issues receive highly deferential appellate review, positioning the petitioner with a steep burden on petition for review.
  • Galeas Figueroa v. Att'y Gen., 998 F.3d 77 (3d Cir. 2021)
    The opinion relied on Galeas Figueroa to restate the substantial evidence standard and the statutory command that the court may disturb factfinding only if “any reasonable adjudicator would be compelled to conclude to the contrary” (quoting 8 U.S.C. § 1252(b)(4)(B)). This is the central review constraint: even plausible alternative interpretations of the record will not suffice.
  • Sunuwar v. Att'y Gen., 989 F.3d 239 (3d Cir. 2021)
    Sunuwar served two roles:
    1. Scope of review: where the BIA “invoke[d] specific aspects of the IJ’s analysis and factfinding,” the court reviews both decisions.
    2. Trivial inconsistency limitation: only “trivial” inconsistencies fail to support an adverse credibility determination, reinforcing that not every discrepancy is disregarded—only those lacking meaningful probative value.
  • Uddin v. Att'y Gen., 870 F.3d 282 (3d Cir. 2017)
    Cited via Sunuwar for the “review both IJ and BIA” principle when the BIA meaningfully adopts or relies on the IJ’s reasoning. This doctrinal point determines what reasoning the Third Circuit assesses and underscores that the IJ’s identified inconsistencies remain pivotal on judicial review.
  • Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136 (3d Cir. 2017)
    The court cited Barna for forfeiture: undeveloped constitutional (due process) references do not preserve an argument. This is a reminder that petitioners must present coherent legal claims, not merely gesture at them.

3.2 Legal Reasoning

A. The governing credibility rule: “any inconsistency,” subject to triviality

The court anchored its analysis in the statutory credibility provision: 8 U.S.C. § 1158(b)(1)(B)(iii), which permits an IJ to base an adverse credibility determination on inconsistencies “without regard to whether [they] … go[] to the heart of the applicant’s claim.” The Third Circuit added the circuit gloss (from Sunuwar): only trivial inconsistencies are too insignificant to justify an adverse credibility finding.

This is the key doctrinal move in the opinion: the petitioner tried to recharacterize discrepancies as “minor,” but the court treated the question as whether a reasonable factfinder could view them as non-trivial—not whether the appellate court might view them as minor in the first instance.

B. Application to the record: three inconsistency clusters viewed as non-trivial

The court upheld the adverse credibility determination based on three categories of divergence between the affidavit and testimony:

  1. How the February 2014 bus-stop attack ended
    Affidavit: escape by throwing himself down a cliff.
    Testimony: assailants stopped because witnesses screamed.
    The court accepted the IJ/BIA’s view that a “harrowing” cliff escape is the kind of detail a credible witness would not likely omit or forget when recounting the event at hearing.
  2. The August 2014 workplace attack: number of attackers and weapons
    Affidavit: three assailants with guns who fired.
    Testimony: two assailants with knives.
    The court rejected the petitioner’s argument that focusing on the weapon was “minutia,” reasoning that whether he was shot at is an “essential fact,” not a peripheral detail.
  3. The timing/circumstances of the shooting at his home
    Affidavit: shooting occurred around April 2014, while he was still living there.
    Testimony: he was no longer living there and learned later; also gave a timeline inconsistent with the affidavit.
    The court emphasized that the key issue was not the precise month, but whether the shooting occurred while he resided at the targeted home—another core experiential fact.

C. Deference and the “compelled to conclude” barrier

The opinion repeatedly returns to the correct appellate posture: the question is not whether the petitioner offered a conceivable explanation (e.g., “survival mode”), but whether the record compels a conclusion contrary to the IJ/BIA. Because the IJ found the petitioner’s explanations not “meaningful and credible,” and because the inconsistencies concerned central features of the alleged attacks, the substantial-evidence standard foreclosed relief.

D. Why the credibility finding defeated all claims

The IJ’s finding was dispositive because Merino-Angel’s testimony was the primary evidence supporting asylum, withholding, and CAT. When the applicant’s narrative is the keystone of the claim, an adverse credibility determination often collapses all related forms of relief unless there is strong, independent corroboration establishing past harm and future risk.

3.3 Impact

  • Reinforces the low threshold for “relevant inconsistencies” under § 1158(b)(1)(B)(iii): Even if a discrepancy does not “go to the heart” of the claim, it can support an adverse credibility finding—so long as it is not trivial.
  • Clarifies what the Third Circuit may treat as non-trivial in practice: details like the mechanism of escape (cliff), weapon type (guns vs. knives), number of assailants, and whether the applicant lived at the targeted home at the time of a shooting are treated as sufficiently important to bear on reliability.
  • Signals the importance of preparing affidavit/testimony consistency: This case illustrates that inconsistent drafting or translation errors in affidavits can be fatal unless promptly, specifically, and credibly explained, ideally with supporting evidence.
  • Procedural lesson on appellate briefing: undeveloped due process claims risk forfeiture (as in Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist.), reinforcing the need for structured argumentation on petition for review.

4. Complex Concepts Simplified

  • Adverse credibility determination: A finding that the judge does not believe the applicant’s account. In asylum-type cases, where the applicant’s story is often the main evidence, losing credibility usually means losing the case.
  • Substantial evidence review: A very deferential standard on appeal. The court asks whether a reasonable judge could have reached the same factual conclusion, not whether the appellate court would have decided differently.
  • “Compelled to conclude to the contrary” (8 U.S.C. § 1252(b)(4)(B)): The petitioner must show the record leaves no reasonable choice but to disagree with the agency—an exceptionally demanding burden.
  • “Trivial” inconsistency: A discrepancy too minor to say anything meaningful about truthfulness (e.g., an immaterial, easily explainable mismatch). Here, the court treated the discrepancies as non-trivial because they concerned the basic structure and severity of the alleged attacks.
  • Asylum vs. withholding vs. CAT: Asylum and withholding generally require persecution-linked-to-protected-grounds analyses; CAT focuses on likely torture with government involvement/consent. But if the same discredited testimony is the main proof for all, credibility problems can defeat all three.

5. Conclusion

The Third Circuit’s decision underscores a practical and doctrinal point: under 8 U.S.C. § 1158(b)(1)(B)(iii), an IJ may rely on inconsistencies in an applicant’s account even if they are not “central” to the legal theory, and appellate courts will uphold the resulting credibility determination so long as the inconsistencies are not trivial and the agency’s view is reasonable under substantial-evidence review.

Applied to Merino-Angel’s case, discrepancies about how an attack ended, whether assailants used guns or knives, how many attackers were involved, and whether he lived at the targeted home when it was shot at were treated as the kind of core factual details a credible witness would be expected to recount consistently. With credibility undermined and no compelling basis to overturn the agency, the court denied the petition for review.