Dahal v. Holder ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1378
KAMAL DAHAL,
Petitioner, Appellant,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States
Respondent, Appellee.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Thompson, Circuit Judge.
Jose A. Vazquez for appellant.
Tony West, Assistant Attorney General, with whom Carl H.
McIntyre and Justin R. Markel were on brief, for appellee.
July 24, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. The Board of Immigration
Appeals denied an alien’s motion to reopen and reconsider his
application for asylum and comparable relief. We find no abuse of
discretion, see INS v. Doherty, 502 U.S. 314, 323 (1992), and
affirm.
Kamal Dahal is a native and citizen of Nepal, admitted to
the United States in April 2006 on an H-2B visa, as a nonimmigrant,
temporary, non-agricultural worker. His status was later changed
to a B-2 visitor for pleasure, and he was authorized to remain in
the United States until May 15, 2007. About a month before that
deadline, Dahal applied for asylum, see 8 U.S.C. § 1158,
withholding of removal, see 8 C.F.R. § 1208.16, and protection
under the United Nations Convention Against Torture.1 His case was
later referred to an immigration judge,2 who held a merits hearing
on December 17, 2008, at which Dahal testified. The judge denied
his petition that same day.
An alien is eligible for asylum if he is a “refugee,”
meaning a person “unable or unwilling to return to” his home
1
This treaty was implemented in the United States by section
2242(b) of the Foreign Affairs Reform and Restructuring Act of
1998, Pub. L. 105-277, 112 Stat. 2681 (Oct. 21, 1998), and 8 C.F.R.
§ 1208.16.
2
While his application was pending, the Department of Homeland
Security placed him in removal proceedings by filing a Notice to
Appear charging him with remaining in the United States without
permission. See 8 U.S.C. § 1227(a)(1)(B).
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country “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.” 8 U.S.C.
§ 1101(a)(42). If, for the same reasons, an alien’s “life or
freedom would be threatened in the proposed country of removal,” 8
U.S.C. § 1231(b)(3), he qualifies for withholding of removal under
the Immigration and Nationality Act. Lastly, removal may be
withheld under the Convention Against Torture if “it is more likely
than not that [the alien] would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Dahal
contended that he could not safely return to Nepal, because he
feared that members of a powerful Maoist insurgency in that country
would persecute him at least partly on the basis of his membership
in the Nepali Congress Party, which he has served in humanitarian
activities and assisted in local elections. The insurgents
allegedly extorted money from him at his business, insisted that he
quit the Congress Party, invaded his house, took money from his
family, and brutally beat him. After continued harassment, Dahal
says, he sent his wife and son to live with her parents in a
different village, while he stayed with a friend in another village
before traveling to the United States.
The immigration judge noted “multiple inconsistencies”
between Dahal’s accounts of things at the hearing and the
allegations in his petition, but nonetheless made no adverse
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credibility finding, and even noted that Dahal generally appeared
to have testified in earnest. Yet he did not provide sufficient
evidence to “overcome the inconsistencies and omissions,” which
left the judge with enough doubt about the reliability of his
testimony that she ultimately held that Dahal’s overall claim for
relief “fails for lack of proof.”
Dahal filed a notice of appeal with the Board of
Immigration Appeals in January 2009, resulting in affirmance of the
immigration judge’s decision in October 2010. A month later, he
presented the Board with a motion to reopen his case, offering new
documentary evidence supporting his claims of oppression at the
hands of the Maoists, and claiming it was error for the judge to
deny his petition for lack of documentation while at the same time
finding him credible. The Board denied the motion to reopen to
submit new evidence, construed Dahal’s latter contention as a
motion to reconsider, and denied it as well.
Although there was leeway for judgment in ruling on the
motion, we think it was not an abuse of discretion to deny it. To
his motion Dahal attached several exhibits that supported his
claims, including a report from an emergency medical clinic,
receipts for donations to the Nepali Congress Party, a police
report mentioning Maoists’ threats aimed at Dahal and extortion
from him, his birth certificate, and bank statements for himself
and his business. He subsequently added affidavits from his wife
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and a former neighbor, as well as a letter from the Congress Party.
The Board nevertheless denied his motion to reopen for failure to
establish that any of these documents was unobtainable at an
earlier stage of the process, see 8 U.S.C. § 1158(b)(1)(B); 8
C.F.R. § 1003.2(c), and we may reverse this finding only if “a
reasonable trier of fact [would have been] compelled to conclude
that such corroborating evidence [was] unavailable” sooner. 8
U.S.C. § 1252. Dahal has not shown this. Although he claimed that
it was difficult to get documentation from Nepal, he had, as the
Board pointed out, included some Nepalese documents with his
original application, and did not convincingly explain why the
paperwork later submitted could not have been produced as well. He
offers no additional details in his briefs on appeal; rather, he
reiterates that the documents were difficult to procure because
they were in Nepal, and because his family’s record keeping was
disrupted by their change of residence. This shows that it took
work to get the evidence, but it does not compel reversal of the
Board’s finding that Dahal failed to show he lacked a prior
opportunity to produce the records.
In fact, Dahal’s position is even weaker than that. His
lawyer was presumably aware that the immigration judge would expect
to review documentary evidence at the initial hearing, see 8 C.F.R.
§ 1208.9(e), but even assuming that it was not until the hearing
date of December 17, 2008 that he had notice of the need for more
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corroboration, he could have moved to reopen proceedings to
introduce his new evidence. See 8 C.F.R. § 1003.23. As it
happened, however, nearly two years passed between the immigration
judge’s ruling and the Board’s decision on the initial appeal. He
apparently made no attempt to supplement the record until after the
appeal went against him, and it was at that late date that he
failed to carry his burden of showing that the evidence “was not
available and could not have been discovered or presented at the
former hearing.” 8 C.F.R. § 1003.2(c).
As to what the Board treated as Dahal’s request for
reconsideration, he argues that the immigration judge’s finding
that he was a credible witness should have obviated any need for
documentation. But more than credibility in a strict sense is or
may be at stake. An immigration judge “may” grant asylum to an
alien on the basis of his testimony alone, “but only if the
applicant [not only] satisfies the trier of fact that the
applicant’s testimony is credible, [but also] is persuasive, and
refers to specific facts sufficient to demonstrate that the
applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B).3 To be sure,
3
The same standard applies to motions to withhold removal
under the Immigration and Nationality Act. See 8 U.S.C.
§ 1231(b)(3)(C) (“In determining whether an alien has demonstrated
that the alien’s life or freedom would be threatened . . . the
trier of fact shall determine whether the alien has sustained the
alien’s burden of proof, and shall make credibility determinations,
in the manner described in clauses (ii) and (iii) of section
1158(b)(1)(B) of this title.”).
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the regulations implementing the Convention Against Torture do not
go into such detail (providing only that “[t]he testimony of the
applicant, if credible, may be sufficient to sustain the burden of
proof without corroboration.” 8 C.F.R. § 1208.16(c)(2)). But even
here, the governing standard is “may be sufficient,” which at most
authorizes a judge to withhold removal without corroborative
evidence, but mandates nothing more. Thus it is not enough to cite
cases from other circuits in which credible testimony sufficed, see
Karouni v. Gonzales, 399 F.3d 1163, 1173-74 (9th Cir. 2005); Diallo
v. INS, 232 F.3d 279, 287-89 (2d Cir. 2000), and for that matter
the cases Dahal cites pre-date the REAL ID Act of 2005’s amendments
to the relevant statutes, recognizing discretion to demand
documentary confirmation. Accordingly, this circuit has recently
upheld immigration judges’ denials of withholding of removal where
“the [immigration judge] found the petitioner generally credible
but faulted [him] for failing to provide corroboration.” Chhay v.
Mukasey, 540 F.3d 1, 6-7 (1st Cir. 2008); Sela v. Mukasey, 520 F.3d
44, 46 (1st Cir. 2008). There was no error in the Board’s
affirmance of the immigration judge who did the same thing here.
Affirmed.
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