Balan v. Holder, Jr. ( 2010 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1931
MARIE RITZA BALAN,
Petitioner,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Harvey J. Bazile and Bazile & Associates for the petitioner.
Micheline Hershey, Attorney, Office of Immigration Litigation,
Tony West, Assistant Attorney General, Civil Division, and Greg D.
Mack, Senior Litigation Council, Office of Immigration Litigation,
for the respondent.
July 15, 2010
LYNCH, Chief Judge. Marie Ritza Balan, a native and
citizen of Haiti, petitions for review of an order by the Board of
Immigration Appeals ("BIA") affirming the ruling of an immigration
judge ("IJ") denying Balan's application for asylum, withholding of
removal ("WOR"), and relief under the Convention Against Torture
("CAT"). For very good reason, the IJ found that Balan's claims of
persecution were not credible and that Balan had failed to show
either past persecution or a reasonable fear of future persecution.
Balan may apply if she is eligible for temporary protected status
under a moratorium declared after the recent disasters in Haiti.
Designation of Haiti for Temporary Protected Status, 75 Fed. Reg.
3476-02, 3477-78 (Jan. 21, 2010). That may affect whether the
Department of Homeland Security executes an order of removal, but
it does not affect adjudication of her petition.
I.
Balan arrived in the United States without inspection at
St. Thomas, in the Virgin Islands, on May 13, 2004. On June 23,
2004, she filed an affirmative application for asylum, WOR, and CAT
relief, asserting that she feared returning to Haiti because she
would be subject to persecution on account of her husband's
involvement in politics.
We describe Balan's application, which differed from her
testimony. Balan stated that her husband was the driver for a
Haitian political leader, Evans Paul. Evans Paul was the former
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mayor of Port-Au-Prince and a founder of the Democratic Unity
Federation (known in Haiti as KID), a political party opposed to
former Haitian president, Jean-Bertrand Aristide, and Aristide's
political party, the Lavalas Party. On February 29, 2004, Aristide
resigned from the presidency.
Balan alleged that following Aristide's resignation, her
husband was shot and she was kidnapped and threatened.
Specifically, Balan stated that on March 4, 2004, after her husband
dropped off Paul at his home, Balan's husband's car was surrounded
by a group of Lavalas party supporters. When Balan's husband
refused to get out of the car and instead drove away, he was shot
but not killed.
Then, on April 17, 2004, a group of people broke into
Balan's house while her husband was away and asked where her
husband was. The people then beat her, kidnapped her, and told
Balan they were going to kill her. When they arrived at a bushy
area outside of town, the group let her go, purportedly because she
was a woman. They told Balan that if she did not leave her
husband, they would kill Balan and her husband. Balan left Haiti
and made her way to the United States.
After an interview with an asylum officer, Balan was
denied relief and referred for a hearing before an IJ. The asylum
officer found that Balan's testimony lacked credibility because she
"was unable to provide sufficient detail to establish her claim."
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Balan could not name the day on which her husband was shot or the
political party to which he belonged. Further, after asserting
that she was aware of the contents of her asylum application,
during the interview, Balan gave the officer a materially differing
account of the April 17 kidnapping, saying that the persons who
abducted her were police officers and that they raped her before
she was released.
In March 2006 the Department of Homeland Security served
Balan with a Notice to Appear, charging her with removability.
Balan apparently conceded removability.
A month before her hearing before the IJ, Balan submitted
an affidavit that repeated the shooting and kidnapping incidents
she alleged in her asylum application. But she did not allege that
she had been sexually assaulted during the April 17 abduction or
that the people who abducted her were police officers.
An IJ heard Balan's claims on November 28, 2007. Balan
was the only witness to testify. She recounted the incident in
which her husband was shot, saying it occurred on the same date she
had listed in her asylum application, March 4, 2004. She also
described a kidnapping incident similar in some ways to the one
alleged in her asylum application, in which five men searching for
her husband abducted and beat her and then left her outside of
town, with a warning that she would be killed if she stayed with
her husband. Significantly, though, Balan testified that this
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incident occurred on February 14, 2004. That date placed the
incident before rather than after the shooting, as Balan had stated
in her earlier application. Balan also made no mention of the
sexual assault she had alleged during her asylum interview but did
not mention in her application.
Balan testified that she had not had any other problems
in Haiti. However, when asked specifically about the April 17,
2004, incident described in her asylum application, Balan testified
that she had also been abducted that day and that it was a separate
incident from the one she described as having occurred on February
14.
When cross-examined about these inconsistencies, Balan
said that she did not understand the questions. She also
acknowledged that she told the asylum officer that she had been
sexually assaulted during the April 17, 2004, incident but made no
such claim in her asylum application or in her hearing testimony.
She did not explain any of these discrepancies.
Citing these inconsistencies,1 Balan's failure to explain
them, and Balan's "feigned lack of understanding" during the
hearing of questions meant to address the inconsistencies, the IJ,
1
The IJ also noted that Balan gave inconsistent accounts
regarding her husband's whereabouts. She told the asylum officer
that her husband had been turned back to Haiti after he had tried
to escape to the United States by boat. At the hearing, Balan said
that he escaped to Guadeloupe and was ultimately arrested in Saint
Martin and sent back to Haiti.
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in an oral opinion, found Balan's testimony "non-credible and
unreliable." The IJ also found that, even assuming her testimony
was credible, Balan could not establish a well-founded fear of
persecution because the groups she claimed to be threatening her,
supporters of former Haitian President Jean-Bertrand Aristide, were
no longer in power. Because Balan could not meet the burden for
asylum, the IJ also concluded that Balan could not meet the heavier
burden to show entitlement to WOR. Finally, the IJ found Balan not
entitled to CAT relief because the group she feared was not a part
of the government.
Balan appealed to the BIA, although she did not object to
the IJ's credibility findings. In its written opinion, the BIA
affirmed the IJ's decision, concluding that the adverse credibility
finding made it impossible for Balan to show past persecution, that
Balan could not show future persecution, and that she was not
entitled to WOR or CAT relief.
II.
"When 'the BIA adopted and affirmed the IJ's ruling' but
also 'discussed some of the bases for the IJ's opinion, we review
both the IJ's and BIA's opinions.' We also review the IJ's
credibility determination when the BIA adopted it." Weng v.
Holder, 593 F.3d 66, 71 (1st Cir. 2010) (quoting Cuko v. Mukasey,
522 F.3d 32, 37 (1st Cir. 2008)) (internal citation omitted).
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We review findings of fact for substantial evidence and
are required "to uphold the agency's findings so long as the record
does not 'compel a reasonable factfinder to reach a contrary
determination.'" Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir.
2009) (quoting Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008)).
We uphold credibility findings if "the IJ has given reasoned
consideration to the evidence and has provided a cogent explanation
for his finding." Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st
Cir. 2008). Legal conclusions are generally reviewed de novo. Id.
To receive asylum, an applicant must show that she is a
"refugee," 8 U.S.C. § 1158(b), meaning that she is unwilling to
return to her 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," id. § 1101(a)(42)(A); see also Anacassus v. Holder, 602
F.3d 14, 19 (1st Cir. 2010). An applicant that shows past
persecution is "presumed to have a well-founded fear" of future
persecution. 8 C.F.R. § 1208.13(b)(1).
An applicant may meet her burden to show past or future
persecution on the basis of her own testimony alone. See Settenda
v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). But incredible
testimony can be "disregarded or sharply discounted," Nikijuluw v.
Gonzales, 427 F.3d 115, 121 (1st Cir. 2005), and for that reason
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"an adverse credibility finding can prove fatal" to a claim, Pan v.
Gonzales, 489 F.3d 80, 86 (1st Cir. 2007).
Although Balan argues to us that she was a victim of past
persecution, she does not challenge the BIA's and IJ's credibility
findings, which means that any challenge to the credibility finding
is waived. See Pangemanan v. Holder, 569 F.3d 1, 3 n.2 (1st Cir.
2009). In any event, we would affirm the BIA's and IJ's
credibility determinations because they clearly gave Balan's
evidence "reasoned consideration" and provided "cogent
explanation[s]" for their conclusions. Muñoz-Monsalve, 511 F.3d at
5. Both cited to specific inconsistencies in her testimony and
explained why they undermined the credibility of her account.
Since Balan was the only person to testify to her past
persecution, she has provided no credible evidence to support a
finding of past persecution, and we are not compelled to find
contrary to the BIA's conclusion that Balan has failed to meet her
burden.
In any event, substantial evidence supports the BIA's and
IJ's findings that Balan cannot show likelihood of future
persecution because of changed circumstances in Haiti. Balan
asserts on appeal that Haiti remains a dangerous place for her as
a general matter, but she cites to no evidence in the record that
supports her position. Balan's testimony and the country reports
she submitted do not compel a contrary finding. At most they show
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that Balan was afraid of the Lavalas party, which, as the IJ and
BIA noted, is no longer in power in Haiti.
Because we are affirming the BIA's and IJ's findings on
the asylum claim, we also affirm denial of Balan's claim for WOR.
See Pan, 489 F.3d at 86; Settenda, 377 F.3d at 93.
Balan also failed to raise a challenge to the BIA's and
IJ's findings on her CAT claim, which is therefore waived. In any
event, substantial evidence supported the conclusion that Balan
would not be subjected to torture by or with the acquiescence of
the Haitian government if she were removed to Haiti. See 8 C.F.R.
§ 1208.16(c).
The petition for review is denied.
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