Rivas-Mira v. Mukasey , 556 F.3d 1 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1604
CARLOS EDUARDO RIVAS-MIRA,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Willilam P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Mark C. Walters, Assistant Director, Office of Immigration
Litigation, and Anh-Thu P. Mai-Windle, Senior Litigation Counsel,
on brief for respondent.
February 11, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as respondent.
SELYA, Circuit Judge. The petitioner, Carlos Eduardo
Rivas-Mira, is a native of El Salvador. He seeks judicial review
of a final order of the Board of Immigration Appeals (BIA)
affirming the decision of an immigration judge (IJ) that ordered
his removal and denied him asylum, withholding of removal, and
relief under the United Nations Convention Against Torture (CAT).
After careful consideration of the briefs and record, we deny the
petition.
Our sole focus is the denial of the asylum claim.1 The
basic facts are straightforward.
The petitioner arrived illegally in the United States on
January 22, 2005. Two days later, federal authorities placed him
in removal proceedings. See 8 U.S.C. § 1182(a)(6)(A)(i). He
conceded removability and cross-applied for asylum, withholding of
removal, and CAT protection.
Following a hearing, the IJ denied the petitioner's
claims for relief. She premised her decision on a finding that the
petitioner's testimony lacked credibility. At the same time she
found, in the alternative, that the petitioner's testimony, even if
credible, failed to demonstrate that he had been or would be
persecuted on the basis of a statutorily protected ground.
1
The petitioner conceded removability and has failed to
advance any developed argumentation as to any of his other claims
for relief. Consequently, we treat those claims as abandoned. See
Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004); United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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The linchpin of the IJ's decision — the adverse
credibility determination — is woven out of perceived
inconsistencies in the petitioner's testimony. Thus, we turn
directly to that testimony.
The petitioner related that his troubles in El Salvador
started while he worked as a machine operator for Bocadeli Food
Products. He described an ongoing struggle between union
organizers and company executives at his workplace. The former
were looking to increase union influence and membership; the latter
were seeking to thwart the organizers' efforts, partially by
identifying and firing union sympathizers.
Among other things, the pro-union contingent employed a
carrot-and-stick approach. On the one hand, the union offered to
protect prospective members from violent gangs that roamed the
area. On the other hand, the union assisted the gangs in targeting
persons who either sided with management or resisted the union's
blandishments. The petitioner had no desire to lose his job, but
he worried about incurring the union's wrath. He tried to remain
"neutral," but his efforts at neutrality came to naught.
The denouement took place on July 19, 2004. The
petitioner testified that, on that date, two armed men boarded a
bus transporting Bocadeli employees home after completing their
shift. He recognized the men as members of a gang linked to union
organizers.
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The intruders relieved the passengers of their valuables
(including bonuses received earlier that day). They then shot the
petitioner at close range, wounding him in the hand and chest. No
shots were fired at any other passenger. The petitioner speculated
that his refusal to join the union was the reason why his
assailants singled him out and shot him.
The petitioner further testified that, two weeks later,
he met one of his assailants by happenstance. He thereafter began
to receive anonymous telephone calls. The mysterious callers
threatened to take his life if he chose to report his shooting to
the police.
The petitioner indicated that the "bus incident" was not
an isolated instance of violence. His brother was robbed under
similar circumstances in November of 2004 and the robbers passed
along a warning that the petitioner should not "open [his] mouth."
Additionally, the petitioner vouchsafed that he knew of four
coworkers who had been assaulted for providing information to
management about union activity. Finally, he claimed that his
cousin was killed by gang members in 2006 (after the petitioner had
fled to the United States).
Comparing the petitioner's written application for
asylum, his affidavit supplementing that application, and his
hearing testimony, the IJ detected a bevy of discrepancies. The
most important related to the petitioner's failure to mention, in
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his asylum application, any connection between the bus incident and
his supposed unwillingness to support the union. Indeed, his
original filings did not refer at all to any union activity or
union-related violence. Those omissions were all the more glaring
when combined with evidence of the petitioner's statement to a
border patrol agent, credited by the IJ, that the petitioner had
"no fear of returning to El Salvador."
There were other inconsistencies as well. For example,
the petitioner testified that he started working part-time for
Bocadeli in 1997 and became a full-time employee two years later.
This contrasted not only with his asylum application (which noted
a starting date in 1996) but also with a letter from Bocadeli
(which indicated that his employment had commenced in 2000).
Similar inconsistencies plagued the petitioner's descriptions of
the time he spent recuperating from the shooting. Although he
testified that his injuries required him to miss two months of
work, he submitted a letter from his social worker stating that he
had missed only one month.
The petitioner appealed the denial of relief to the BIA,
which affirmed the IJ's ukase. This timely petition for judicial
review followed.
Ordinarily, the court of appeals reviews only the final
order of the BIA. But where, as here, the BIA has adopted the IJ's
decision in whole or in part, we review the pertinent portions of
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the IJ's decision as well. See Bebri v. Mukasey, 545 F.3d 47, 49-
50 (1st Cir. 2008); Albathani v. INS, 318 F.3d 365, 373 (1st Cir.
2003). Factual findings, including credibility determinations, are
assessed under the familiar substantial evidence standard. See
Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007). That standard
requires us to uphold the agency's findings so long as the record
does not "compel a reasonable factfinder to reach a contrary
determination." Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008).
Put another way, such findings will stand whenever they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Segran, 511 F.3d at 5 (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Answers to
abstract legal questions are reviewed de novo, with deference,
however, to the agency's reasonable interpretation of statutes and
regulations within its ken. Pan v. Gonzales, 489 F.3d 80, 85 (1st
Cir. 2007).
To qualify for asylum, an alien must establish that he is
a refugee within the meaning of 8 U.S.C. § 1101(a)(42). Satisfying
this burden requires a showing of either past persecution or a
well-founded fear of future persecution if repatriated, on account
of one of five enumerated grounds, namely, race, religion,
nationality, membership in a particular social group, or political
opinion. See 8 U.S.C. § 1101(a)(42)(A); see also Makhoul v.
Ashcroft, 387 F.3d 75, 80-81 (1st Cir 2004). An alien's own
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testimony may be adequate to carry this burden. Bebri, 545 F.3d at
50. Nevertheless, the alien's testimony need not be taken at face
value; that testimony may be discounted or disregarded if the IJ
reasonably deems it to be "speculative or unworthy of credence."
Id. Hence, "an adverse credibility determination can prove fatal"
to an asylum claim. Id. (quoting Pan, 489 F.3d at 86). We must
inquire, then, as to whether this is such a case.
In denying asylum, the IJ concluded that the petitioner's
story was incredible. The petitioner disputes that
characterization, alleging that the adverse credibility
determination placed excessive weight on trivial inconsistences.
Upon close perscrutation, we find that allegation unfounded.
Before beginning our explanation, we first must answer a
threshold question. The petitioner applied for asylum on January
11, 2006. Because his application postdates the enactment of the
REAL ID Act, Pub. L. 109-13, 119 Stat. 302 (2005), the credibility
definition at issue here is subject to a provision of that Act,
codified at 8 U.S.C. § 1158(b)(1)(B)(iii), rather than to the
preexisting "heart of the matter" rule. The earlier rule required
that an adverse credibility finding be based on inconsistencies that
"pertain to facts central to the merits of the alien's claims."
Bebri, 545 F.3d at 50 (quoting Zheng v. Gonzales, 464 F.3d 60, 63
(1st Cir. 2006)). The new statute disavows that test; it provides
that a factfinder may base a credibility determination on
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inconsistencies, inaccuracies, or falsehoods "without regard to
whether [any such inconsistency, inaccuracy, or falsehood] goes to
the heart of the applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii). We therefore proceed to evaluate the IJ's adverse
credibility determination under that standard and in light of the
totality of the circumstances. See, e.g., Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008); Kadia v. Gonzales, 501 F.3d 817,
822 (7th Cir. 2007); Chen v. U.S. Att'y Gen., 463 F.3d 1228, 1233
(11th Cir. 2006).
The petitioner attempts to circumvent this obstacle by
arguing that the new test includes a rationality requirement, thus
rendering it functionally equivalent to the old "heart of the
matter" rule. This reasoning relies heavily on a footnote in Lin
v. Mukasey, 521 F.3d 22, 28 n.3 (1st Cir. 2008). The petitioner
reads the Lin footnote as indicating that the new statute should be
interpreted narrowly. We reject that crabbed reading.
In Lin, we examined the background of this new provision
of the REAL ID Act, noting that its principal purpose was to
eliminate a limitation, elaborated by the Ninth Circuit, on the type
of inconsistencies upon which an IJ could rely in assessing
credibility. See id. (citing Abovian v. INS, 257 F.3d 971, 977-79
(9th Cir. 2001) (Kozinski, J., dissenting from denial of rehearing
en banc)). The net effect of the neoteric provision was to scrap
the "heart of the matter" rule. See id.; see also H.R. Rep. No.
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418, 109th Cong. (2005), reprinted at 151 Cong. Rec. H536-41 (daily
ed. Feb. 10, 2005). However, we warned that even under the new
standard, credibility determinations nonetheless must "be
'reasonable' and 'take into consideration the individual
circumstances' of the applicant." Lin, 521 F.3d at 28 n.3 (quoting
H.R. Rep. No. 109-72, at 167, reprinted in 2005 U.S.C.C.A.N. 240,
292).
The Lin court recognized that this language, if taken
literally, might create a "rationality requirement," but left open
the question of whether (or to what extent) an adverse credibility
determination can be based on inconsistencies not directly related
to the central issues in an alien's case. Id.Although the petitioner labors to pursue this subject, we
have no occasion to explore it here. The "heart of the matter" rule
is dead, and the main inconsistencies on which the IJ relied — the
absence of any reference to union activity in the petitioner's
initial submissions and his failure there to link the bus incident
to union strife — cannot be dismissed as a minor blemish. These
inconsistencies go to the essence of the petitioner's claim: after
all, the assailants' motivation for singling out the petitioner was
crucial to his assertion that he had been persecuted for, and feared
future retribution on account of, his failure to adopt a pro-union
stance. If the new statute imposes a rationality requirement, that
requirement would be satisfied here.
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The petitioner has a fallback position. He lamely
suggests that the trauma of the attack prevented him from discussing
the matter fully during the initial stages of the asylum process.
That suggestion lacks any credible support in the record. The
petitioner had no difficulty in describing the attack in great
detail, and it is implausible that he would have recalled the attack
itself but blocked out its union-related aspects.
We need not tarry. While the inconsistencies anent the
petitioner's employment history and recuperation period may be
fribbling, the main inconsistencies noted by the IJ are of a type
and kind that create strong doubts about the veracity of the
petitioner's tale. Of course, the petitioner attempted to explain
away these anomalies, blaming others for them. However, his
explanations are not convincing. That is especially so in light of
his stated lack of any fear of returning to El Salvador. In all
events, the IJ was not required to accept those explanations.
To sum up, the inconsistencies, collectively, viewed in
light of the totality of the circumstances, constitute substantial
evidence sufficient to support the IJ's adverse credibility finding.
See, e.g., Bebri, 545 F.3d at 51; see also Pan, 489 F.3d at 86(explaining that while "[s]ome of these inconsistencies, in
isolation, may seem like small potatoes . . . their cumulative
effect is great"). In short, we see nothing in the record before
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us that would compel a conclusion that the petitioner's testimony
was credible.
To say more would be to paint the lily. Once we accept
the adverse credibility determination — as we must — the
petitioner's case collapses. Without his own (incredible)
testimony, the record does not show that the petitioner ever
displayed an anti-union animus, let alone that he was targeted on
that account.
We need go no further.2 For the reasons elucidated above,
we deem the denial of asylum to be supported by substantial evidence
on the record. Consequently, the petition for review must be denied
and the final order of removal sustained.
So Ordered.
2
Given our rationale, we have no need to explore the IJ's
alternative holding.
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