Martins v. Gonzales ( 2006 )

Not For Publication in West’s Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2295
ROMILTON C. MARTINS,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lynch, Circuit Judges,
and Young*, District Judge.
José A. Espinosa on brief for petitioner.
Michael Sady, Assistant United States Attorney, and Michael J.
Sullivan, United States Attorney, on brief for respondent.
June 23, 2006
*
Of the District of Massachusetts, sitting by designation.
YOUNG, District Judge. We must determine whether substantial
evidence supports the summary affirmance by the Board of
Immigration Appeals (“BIA”) of a denial by an Immigration Judge
(“hearing officer”) of the application for political asylum filed
by petitioner, Romilton C. Martins (“Martins”). After careful
review of the record, we conclude that the hearing officer’s
determination was sufficiently supported and deny Martins’s
petition for review.
I. Factual and Procedural Background
Martins is a citizen and native of Brazil. He entered
the United States on September 22, 2002 in Tecate, California. The
following day, September 23, the Immigration and Naturalization
Service (“INS”) served Martins with a Notice to Appear charging
that he was subject to removal as an alien who was neither admitted
nor paroled after inspection by the INS. On February 12, 2003,
Martins acknowledged the Notice to Appear, admitted the truth of
the factual allegations it contained, and conceded his
removability. Martins subsequently filed an application for
asylum, withholding of removal, and relief under the Convention
Against Torture (the “Convention”).
A hearing was held in Boston before Immigration Judge
Leonard Shapiro on February 10, 2004. At that hearing, Martins
testified that he had owned a clothing factory and several stores
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in Brazil. He stated that these businesses were doing well until
he began having problems with union representatives. Martins
explained that the union was against him because of his membership
and support for the Partido Movemento Democratico Brasileiro
(PMDB), the Brazilian Social Democratic political party. Martins
testified that the union was opposed to the activities of the PMDB
and supported the party that had just won power in Brazil.
Martins testified that the union would lure his workers
away with false promises of higher pay, and as a result, he would
have to cancel orders that he could not fill. He claimed that he
received threats from the union in the form of calls and letters
with no return address, and although he notified the police,
“nothing would happen” because there was no way to prove anything
and because the police “[didn’t] really try to help anyone with
anything.”
Martins also testified that in July or August 2002, union
members went to his home, knocked on his front door, and discharged
their firearms. Martins stated that he was not home at the time.
He informed the police of this incident, but said they refused to
assign an officer to him or to offer him any protection. On cross-
examination, however, Martins testified that there were actually
two shooting incidents in his home -- one in July and one in August
2002. He described the July 2002 incident as a minor one which he
did not report to the police. Martins confirmed that the August
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2002 shooting was the same incident that was described in a
document he submitted to the hearing officer as a police report of
an August 21, 2002 shooting at his house. On cross-examination,
Martins admitted that although he testified that he was not at home
during the August incident, the document he submitted as a police
report stated that he and his wife were home.
Martins also testified on cross-examination that, in
fact, two incidents occurred on August 21, 2002 -- an armed robbery
attempt and the shooting at his home. Martins submitted to the
hearing officer documents and translations of those documents,
which he represented to be police reports he filed in relation to
the incidents. The hearing officer admitted those documents in
evidence.
Martins admitted at the hearing to having been present in
the United States illegally in the past, from 1989 to 1993.
The hearing officer issued an oral decision denying
Martins’s requests for asylum, withholding of removal, and relief
under the Convention. The hearing officer determined, noting the
numerous inconsistencies in Martins’s testimony, that Martins was
not a credible witness. The hearing officer concluded that “[t]he
circumstances surrounding what any reasonable person would consider
to be a very serious occurrence are so garbled and inconsistent
that I cannot rely on the incident ever having occurred.” The
hearing officer also indicated that he believed the documents
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submitted by Martins to be fraudulent, noting that “[i]n reviewing
the document which purports to be a translation of a report stating
a death attempt[,] the report is so irrational that it is
unbelievable.” The hearing officer questioned how a claim that
union representatives trying to hire away Martins’s workers
properly could morph into a claim of political asylum from the
activities of the Brazilian government. The hearing officer also
found “no evidence that anyone from the government of Brazil is
seeking to torture the respondent.”
On July 26, 2005, the BIA affirmed the hearing officer’s
decision without issuing an opinion. Martins filed his petition
for review by this Court on August 25, 2005. On September 9, 2005,
Martins’s removal was stayed pending his appeal.
II. Jurisdiction and Standard of Review
We have jurisdiction over Martins’s timely petition for
review pursuant to 8 U.S.C. §§ 1252(a)(5) and 1252(b)(1). Where
the BIA has summarily affirmed the hearing officer’s decision, we
turn to that decision to review. See Chen v. Gonzales, 418 F.3d
110, 113 (1st Cir. 2005). We must uphold determinations of the
hearing officer if “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks
omitted). This “substantial evidence” standard applies to claims
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for asylum, withholding of removal, and relief under the
Convention. Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004).
The hearing officer’s denial must stand unless “the petitioner’s
evidence would compel a reasonable factfinder to conclude that
relief was warranted.” Id. Absent an error of law, we can
overrule the hearing officer only “if the evidence points
unerringly in the opposite direction.” Nikijuluw v. Gonzales, 427
F.3d 115, 120 (1st Cir. 2005) (citation and internal quotation
marks omitted).
We also review adverse credibility findings under the
substantial evidence standard. Chen, 418 F.3d at 113. “[I]f we
cannot say a finding that the alien is credible is compelled - then
the decision must be affirmed.” Id. “Matters of witness
credibility and demeanor are peculiarly for the factfinder,”
Rodriguez Del Carmen v. Gonzales, 441 F.3d 41, 43 (1st Cir. 2006),
and credibility determinations supported with specific factual
findings are treated with “great respect,” Laurent v. Ashcroft, 359
F.3d 59, 64 (1st Cir. 2004).
III. Discussion
Martins does not challenge the denial of his application
for withholding of removal in his brief. Therefore, any claim for
withholding is considered waived. See Harutyunyan v. Gonzales, 421
F.3d 64, 65 n.1 (1st Cir. 2005).
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In order to establish an entitlement to asylum, Martins
must show that he is a refugee within the meaning of the
immigration laws. A refugee is an alien “who is unable or
unwilling to return to, and is unable or unwilling to avail himself
or herself of the protection of, [his home] 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). A
petitioner must show “that race, religion, nationality, membership
in a particular social group, or political opinion was or will be
at least one central reason for persecuting the applicant.” 8
U.S.C. § 1158(b)(1)(B)(i). The burden of proof is on the alien to
establish that he is a refugee. Id. § 1158(b)(1)(B)(i).
Martins argues that the hearing officer improperly relied
on “minor” discrepancies in Martins’s testimony to determine that
Martins was not a credible witness -- specifically, discrepancies
concerning the dates of the two shooting incidents and whether he
had reported both incidents to the police. The hearing officer,
however, based his credibility determination on Martins’s differing
testimony on direct and cross-examination as to the number of
shooting incidents at his home, not the dates of those incidents.
Further, the hearing officer noted contradictions between Martins’s
testimony that he was not home during the August shooting at his
home and the report he submitted, which described Martins as being
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inside the residence at the time of the shooting and seeing the
perpetrators attempt to enter his home. The hearing officer also
found that Martins asserted that he reported both incidents to the
police, but later testified that he never reported the July 2002
incident. While the latter arguably could be labeled as a “minor”
discrepancy, the former are discrepancies that relate to
significant details of the incidents of alleged persecution that
form the basis of Martins’s petition. Unquestionably, such
discrepancies are reasonably considered in assessing the veracity
of the petitioner’s testimony. Those two discrepancies alone
adequately support the hearing officer’s credibility determination.
Although we need not address whether reliance on any additional
“minor” inconsistencies was proper, we do note that any inaccuracy
or falsehood in a witness’s testimony may be considered by the
hearing officer, “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
The hearing officer’s decision to give no weight to the
documents submitted by Martins is also adequately supported by the
record. As the hearing officer observed, both reports are
inconsistent with Martins’s testimony regarding the August incident
that he was not at home during the shooting. Further, the document
labeled “Incident Report from the Military Police of Minas Girais,
Brazil” lists Martins and three other males as victims on the first
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page and then, on the second page, seemingly describes the shooting
incident at Martins’s home referring only to the victim and his
wife.1 As to the second “police report,” which also describes the
August shooting, the hearing officer found, based on a review of
the document, that the report was “so irrational that it is
unbelievable.” Indeed, this document contains statements that
strongly suggest it is not even a police report. The document
refers to “[o]ur reporters” being “at the scene and verif[ying]
through the common citizens that there was an attempt of ‘a gun
crime.’” It indicates that details of the incident were garnered
from the “Police Occurrence Bulletin No. 31.031".2 In short, this
document reads like a news article and not the police report
Martins represented it to be. The hearing officer properly
concluded that both these documents were not credible.
We conclude, based on the record, that the hearing
officer’s credibility determination was substantially supported by
the record and as a result, Martins failed to establish eligibility
for asylum. We further note that Martins failed to show any
connection between his alleged persecution and the Brazilian
1
It is not clear from the testimony and these documents
whether the shooting at Martins’s residence and the attempted
robbery were the same incident or whether the attempted robbery was
a separate incident involving Martins and the other men listed in
the report.
2
The other document submitted by Martins is titled Bulletin
No. 31.013.
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government. Nikijuluw, 427 F.3d at 121 (“[A]n applicant qualifies
for asylum only when he suffers persecution that is the direct
result of government action, government-supported action, or [the]
government’s unwillingness or inability to control private
conduct.”).
Given the lack of any credible evidence in support of
this petition, we conclude that the hearing officer’s determination
that there was no evidence to justify relief under the Convention
was also reasonable and substantially supported by the record.
Again, even accepting all of Martins’s evidence as credible,
Martins would still fail to show a likelihood that, if removed to
Brazil, he would be tortured3 “with the consent or acquiescence of
a public official who has custody or physical control [over him].”
Settenda, 377 F.3d at 94 (citations and internal quotation marks
omitted).
The petition for review is denied.
3
To obtain relief under the Convention, Martins must show
“that it is more likely than not that he . . . would be tortured if
removed” to Brazil. 8 C.F.R. § 208.16(c)(2). Torture is defined
as “(1) an act causing severe physical or mental pain or suffering;
(2) intentionally inflicted; (3) for a proscribed purpose; (4) by
or at the instigation of or with the consent or acquiescence of a
public official who has custody or physical control of the victim;
and (5) not arising from lawful sanctions.” Settenda, 377 F.3d at94 (citing 8 C.F.R. § 208.18(a)(1)).
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