Domercant v. Mukasey , 262 F. App'x 293 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1726
JEAN GARDY DOMERCANT,
Petitioner,
v.
MICHAEL B. MUKASEY,
ATTORNEY GENERAL*,
Respondent.
ON PETITION FOR REVIEW OF ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Circuit Judge,
Stahl, Senior Circuit Judge,
and Siler,** Senior Circuit Judge.
Michael D. Greenberg and Law Offices of Michael D. Greenberg,
on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Anthony W.
Norwood, Senior Litigation Counsel, and Kathryn L. Deangelis, Trial
Attorney, United States Department of Justice, on brief for
appellant.
February 6, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael
B. Mukasey has been substituted for former Attorney General Alberto
R. Gonzales as the respondent herein.
**
Of the Sixth Circuit, sitting by designation.
STAHL, Senior Circuit Judge. After a hearing, an
Immigration Judge (IJ) denied Jean Gardy Domercant’s claims for
asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). On appeal, the Board of Immigration Appeals
(BIA) affirmed the IJ’s decision. Finding no error in the BIA’s
decision, we affirm the BIA’s order and deny Domercant’s petition
for review.
I.
Domercant, a native and citizen of Haiti, entered the
United States at the U.S. Virgin Islands on or about August 15,
2003. On October 14, 2003, well within the one-year filing
deadline, Domercant submitted an I-589 Application, seeking
political asylum and withholding of removal. Subsequently, the
Immigration and Naturalization Service (INS) charged him with
removability under § 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present
in the United States without being admitted or paroled. Domercant
conceded removability, but applied for asylum, withholding of
removal, and protection under the CAT. In support of his
application for relief, he submitted a personal statement, his
birth certificate, a membership card and letter from Mochrena, a
Haitian political party, a Haitian driver’s license and tax ID
-2-
card, his child’s birth certificate, and a number of articles
relating to country conditions in Haiti.1
At the hearing before the IJ, Domercant described three
incidents of what he deemed politically motivated harassment, which
he attributed to his membership in Mochrena, a minority political
party in Haiti.2 The first alleged incident occurred on April 25,
2002, after a customer accused Domercant of harboring anti-
government sentiments because of remarks he made during a political
discussion. Domercant testified that, on his way home from work
that night, he was accosted by the same customer and two police
officers, pushed to the ground, and kicked. He stated that,
following the attack, he went to the police station and reported
the incident, but the police would not help him. In August 2002,
four men allegedly invaded Domercant’s home and accused him of
trying to destabilize the government. Domercant testified that he
believed that these men were sent by the men who had attacked him
in April. The final incident took place in late March 2003, when
two men allegedly entered the home of a friend with whom Domercant
1
The government objected to the admission of these documents
because they had not been authenticated. The government further
noted that, despite its requests, the originals of the documents
were never turned over for forensic analysis. The IJ allowed the
documents into evidence but, acknowledging the evidentiary
shortcomings, informed Domercant that the documents would be given
very limited weight.
2
Domercant described Mochrena as “the Christian Movement for
a New Haiti” and claimed that he became a regular member of the
party in June 2002 because he agreed with its ideology of
advocating peace, education, and work for all.
-3-
was staying3 and beat both Domercant and his friend’s mother.
Domercant testified that the men threatened that “this was just the
beginning.” He also claimed that both he and his friend’s mother
received medical treatment for the injuries they sustained during
the beatings. According to Domercant, he traveled to the Dominican
Republic shortly after leaving the hospital and lived in Santo
Domingo until he entered the United States in August 2003.
When questioned by the government about his involvement
with Mochrena, Domercant admitted that he had never paid any party
dues, attended any rallies or demonstrations, or voted in Haitian
elections. Furthermore, he acknowledged that he was unaware
whether any branches of Mochrena existed in the United States,
whether Mochrena held three seats in the Haitian parliament, or
which candidate Mochrena was supporting in the upcoming Haitian
presidential election. He also demonstrated limited knowledge of
the Democratic Convergence, a Haitian coalition of political
parties of which Mochrena was a member.
Domercant also testified that he had a son, Christopher
Domercant, who was born in the United States on April 10, 2003. He
admitted that Christopher’s mother, Marie Ambroise, told Domercant
3
Domercant claimed that, after his home was invaded in August
2002, fear of further harassment forced him into hiding. He
testified that he quit his job and moved in with a friend in
September 2002. He stated that he stayed with this friend until
January 2003, at which time he moved in with another friend. The
third incident occurred about two months after Domercant moved in
with the second friend.
-4-
that she was pregnant in September 2002, before she moved to the
United States. He further disclosed that he communicated with
Ambroise intermittently after she arrived in the United States.
When the government questioned his failure to include Christopher
on his asylum application, Domercant answered: “The reason I said
that is because I wasn’t quite sure. She [, Ambroise,] did tell me
that she was pregnant but I had not proof.” He also stated that he
was not present for Christopher’s birth and that he was not listed
on the birth certificate. He denied the government’s accusation
that he came to the United States to be with Christopher and
Ambroise.
In an oral decision, the IJ found that Domercant was not
credible based on the following facts: (1) Domercant’s statements
regarding his political involvement were vague, indicated that he
knew little about his alleged political party, and showed that he
was uninterested in Haitian politics; (2) that he had offered
conflicting testimony about whether he was for or against the
ruling party of Haiti; (3) that he claimed he was in hiding while
living with his friends in Haiti, but his asylum application
neither listed the addresses of these friends nor indicated that he
was ever in hiding; (4) that he testified he quit his job in 2002,
but his application for asylum stated that he was employed until
2003; (5) that he failed to mention his child on his asylum
application; and (6) that he lacked evidence to corroborate his
-5-
arrival in the United States, his alleged hospital stay, and his
claim that he reported the incidents to the police. Because
Domercant’s testimony was not credible, the IJ denied Domercant’s
claim for political asylum.
Notwithstanding the adverse credibility finding, the IJ
further held that Domercant’s claim for asylum failed because he
had neither established past persecution nor a well-founded fear of
future persecution if returned to Haiti. According to the IJ,
Domercant could not establish past persecution because he did not
sufficiently link his political opinion to the attacks he
described. Furthermore, the IJ determined that Domercant could
have relocated within Haiti to avoid his perceived problems with
his alleged persecutors. As to future persecution, the IJ
concluded that Domercant’s apparent disinterest and lack of
knowledge regarding Haitian politics suggested that he had
absolutely nothing to fear if he returned to Haiti. Having found
that Domercant had not proven his eligibility for asylum, the IJ
denied his concurrent claim for withholding of removal. His claim
for CAT protection was likewise rejected because Domercant had
offered no evidence that it was more likely than not that he would
be tortured if forced to return to Haiti.
On appeal, the BIA upheld the IJ’s decision in a per
curiam opinion. The BIA agreed that Domercant was not credible,
stating that the IJ’s adverse credibility determination was based
-6-
on specific and cogent reasons manifest in the record.
Specifically, the BIA discussed the discrepancies between
Domercant’s asylum application and his testimony, his lack of
knowledge and involvement in Haitian politics, his inability to
corroborate that he had received medical treatment after the
alleged beatings, and his failure to articulate any reason why he
could not safely relocate within Haiti.4 In addition, the BIA
found that Domercant had presented no evidence showing “that anyone
was looking for him for any reason.” Because the BIA disposed of
Domercant’s claims for asylum and withholding of removal on the
ground that he was not credible, the BIA declined to address his
persecution arguments. The BIA also affirmed the IJ’s finding that
Domercant’s claim for protection under the CAT failed.
Accordingly, the BIA dismissed Domercant’s appeal. Domercant now
petitions for review of the BIA’s dismissal, arguing that its
adverse credibility determination is not supported by the record.5
4
The BIA’s finding that Domercant could safely relocate appears
misplaced because it is a factor typically considered when
determining whether persecution has been established, not when
assessing the credibility of an asylum applicant.
5
On appeal, Domercant seeks review of the IJ’s finding of
adverse credibility. He contends that we should review the
findings of the IJ and not the BIA because the BIA merely adopted
the findings of the IJ. See Simo v. Gonzales, 445 F.3d 7, 11 (1st
Cir. 2006)(“[T]o the extent that the [BIA] has adopted the decision
of an IJ, we review the adopted portion of the opinion of the IJ as
if it were part of the opinion of the [BIA].”). However, in this
case, the BIA made its own findings with regard to Domercant’s
credibility and eligibility for asylum, withholding of removal, and
CAT protection and did not adopt the decision of the IJ.
Therefore, we will review the BIA’s decision and treat Domercant’s
-7-
II.
We review the factual findings of the BIA under a
substantial evidence standard and will uphold the BIA’s decision if
it is “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Attia v. Gonzales, 477 F.3d
21, 23 (1st Cir. 2007)(citing Carcamo-Recinos v. Ashcroft, 389 F.3d
253, 256 (1st Cir. 2004)). We will not reverse a factual
determination of the BIA unless “any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see also Simo v. Gonzales, 445 F.3d 7, 11 (1st Cir.
2006).
An applicant for political asylum bears the burden of
showing that he suffered past persecution, or that he has a well-
founded fear of future persecution, on account of his political
opinion. Ouk v. Keisler, 505 F.3d 63, 67 (1st Cir. 2007).
Similarly, an applicant seeking withholding of removal on political
grounds must demonstrate that it is more likely than not that he
will be persecuted on account of his political opinion if he is
forced to return to the country of removal. Pan v. Gonzales, 489
F.3d 80, 86 (1st Cir. 2007); 8 C.F.R. § 208.16(b)(2). The
standard for a grant of withholding of removal is more stringent
arguments as if they were addressed to the findings of the BIA.
See Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003)
(“Ordinarily, Courts of Appeals review decisions of the [BIA], and
not those of an IJ.” (alteration in original)(internal citation
omitted)).
-8-
than that of asylum. Pan, 489 F.3d at 86. As a result, “[a]
petitioner who is unable to establish eligibility for asylum a
fortiori fails to establish eligibility for withholding of
deportation.” Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.
2004).
An asylum applicant must offer credible and specific
evidence to support his claim of past persecution or well-founded
fear of future persecution. Bojorques-Villanueva v. INS, 194 F.3d
14, 16 (1st Cir. 1999). If the testimony of an asylum applicant is
found credible, that alone may be sufficient to meet the
applicant’s burden. See 8 C.F.R. § 1208.13(a); see also Settenda,
377 F.3d at 93. Conversely, “if the proffered testimony is not
credible, it may be either disregarded or sharply discounted,
depending on the circumstances.” Nikijuluw v. Gonzales, 427 F.3d
115, 121 (1st Cir. 2005). Because the success of applicant’s claim
may be at stake, “an adverse credibility determination cannot rest
on trivia but must be based on discrepancies that involve[] the
heart of the asylum claim.” Bojorques-Villanueva, 194 F.3d at 16(citation and internal quotation marks omitted). “Further, the
discrepancies or omissions relied upon ... ‘must actually be
present in the record ... and ... a convincing explanation for the
discrepancies or omissions must not have been supplied by the
alien.’” Lin v. Gonzales, 503 F.3d 4, 7 (1st Cir. 2007) (second
-9-
and third alterations in original)(quoting Zheng v. Gonzales, 464
F.3d 60, 63 (1st Cir. 2006)).
On appeal, Domercant argues that the BIA’s adverse
credibility determination rested on erroneous findings. First, he
contends the BIA’s conclusion that he knew next to nothing about
Haitian politics was incorrect because it was based on Domercant’s
unawareness of facts about Haitian politics that were never proven
true by the government. For example, the government offered no
evidence to prove that Mochrena was a member of the Democratic
Convergence or that Mochrena held three seats in the Haitian
parliament. On these bases, Domercant argues that it was improper
for the BIA to find that he lacked knowledge of Haitian politics.
However, the soundness of the factual predicates underlying the
government’s questions regarding Haitian politics is irrelevant.
It is relevant that, in responding to these questions, Domercant
displayed a general lack of knowledge regarding the subject, either
because he was unaware of the facts being asserted, could not
answer the questions asked, or did not attempt to refute any
incorrect assertions. The record, therefore, supports the BIA’s
finding.
Domercant also argues on appeal that he adequately
explained the discrepancies cited by the BIA in support of its
adverse credibility finding. In defense of his omission of
Christopher from his asylum application, Domercant maintains that,
-10-
at the time he filled out his application, he only knew that
Ambroise was pregnant, not whether the child had been born or if he
was the father. Moreover, he was not living with Ambroise and he
is not listed as the father on Christopher’s birth certificate. Be
that as it may, given that Christopher was born in April 2003, and
that the application was filled out in October 2003, Domercant may
in fact have been aware of the child’s birth. In addition,
Domercant had ample time and opportunity to amend his asylum
application between October 2003 and his hearing in October 2005,
but he neglected to do so. Considering these facts, it was
reasonable for the BIA to conclude that this discrepancy was not
sufficiently justified by Domercant’s testimonial explanation.
Additionally, Domercant explains that the inconsistencies
between his asylum application and his testimony regarding his
residence and the date he left his job were merely a result of
mistranslation. To this end, he reminds us that he filled out his
asylum application with the assistance of a translator because he
is not fluent in English. He further asserts that, even if there
were no translation issues, it would not be unreasonable for him to
provide only his home address because most people would not
consider the homes of friends that they are staying with
temporarily to be their residences. However, the I-589 application
explicitly asks the applicant to provide the last address he lived
at before coming to the United States and information about his
-11-
residences during the previous five years. In response to these
requests, Domercant provided only his home address as his last
residence before coming to the United States and an address in St.
Thomas as his present address. It was within the discretion of the
BIA to accept or deny Domercant’s explanation for failing to list
the addresses at which he temporarily resided. See Chen v.
Gonzales, 418 F.3d 110, 114 (1st Cir. 2005)(“That the [BIA] might
have accepted [the petitioner’s] explanations for his
inconsistencies is not to say [it] was required to do so.”). Since
nothing in the record compels us to conclude that the discrepancy
was adequately explained, we will not disturb the decision of the
BIA.6
We conclude that there was substantial evidence on the
record to support the BIA’s finding that Domercant was not
credible. Consequently, we affirm the BIA’s dismissal of
Domercant’s claims for asylum and withholding of removal.7
6
Domercant sets forth an additional argument that the IJ erred
in giving limited weight to his Mochrena membership card because it
was not an “official” document and, therefore, did not require
authentication under 8 C.F.R. § 287.6. He contends that it may
have affected the IJ’s finding that Domercant was not involved in
Haitian politics. The BIA did not mention the card in its opinion
and, therefore, the IJ’s opinion on this matter is irrelevant.
7
Domercant also contests the IJ’s findings with respect to
persecution. However, the BIA dismissed Domercant’s claims for
asylum and withholding of removal based solely on its finding that
Domercant was not credible. It specifically refused to address
Domercant’s arguments related to persecution. Because we review
the decision of the BIA unless it has adopted the decision of the
IJ, we are without jurisdiction to consider Domercant’s arguments
regarding persecution. See Albathani, 318 F.3d at 373.
-12-
III.
For the aforementioned reasons, the petition for review
is denied.
-13-