Younes v. Gonzales , 192 F. App'x 4 ( 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Not for Publication in West's Federal Reporter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. 05-2641
MARCEL NEHME YOUNES,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Peter Allen on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
U.S. Department of Justice, Michael P. Lindemann, Assistant
Director, Office of Immigration Litigation, and Ethan B. Kanter,
Senior Litigation Counsel, on brief for respondent.
August 21, 2006
Per Curiam. Petitioner Marcel Nehme Younes, a native of
Lebanon, came to the United States in May 1988 on a non-immigrant
visa conditioned on his attending school. That limitation
notwithstanding, Younes never attended school, and in September
1988 the Immigration and Naturalization Service began removal
proceedings against Younes for failure to comply with the terms of
his student visa. Younes conceded deportatability but applied for
political asylum. There was some preliminary activity on Younes's
removal case in the period from late 1989 to March 1991, during
which time Younes requested and received a number of hearing
continuances. In March 1991, Lebanese aliens as a group became
eligible for Temporary Protected Status (TPS), and proceedings on
Younes's case were halted pending the expiration of the TPS decree,
which did not occur until 1999. The hearings resumed briefly that
year, only to be continued again for want of a translator. A
merits hearing on Younes's asylum petition was not convened until
2004.
At the 2004 asylum hearing, there was some initial
confusion about Younes's need for a translator. Younes indicated
that he spoke English and at the start of the hearing alternated
between English and Arabic, but at the urging of the Immigration
Judge (IJ) to select a language and stick with it ultimately
decided to speak in Arabic and avail himself of the benefit of the
now-present translator.
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At the hearing, Younes testified that in 1988 he was a
member of Lebanon's Christian Kataeb party and actively worked to
eject Syria from Lebanon. He alleged four incidents of
mistreatment by members of the Syrian military which he said he was
subjected to on account of his political affiliation and
activities. On each occasion, Younes said, he was detained by
Syrian military personnel and beaten. He alleged that on the first
three occasions he was interrogated about his involvement with
Kataeb, while on the fourth, no mention was made of his political
activities but Younes attested that he believed the beating and
harassment he suffered were directed against him by reason of those
activities. Younes concluded his testimony by asserting his belief
that he would be killed if he returned to Lebanon.
The IJ hearing the case found Younes not to be a credible
witness. He noted discrepancies between Younes's initial statement
of his reasons for requesting asylum, completed at a time when
Younes had recently arrived in the United States, and the
description given by him many years later at his asylum hearing of
the incidents of harassment and abuse that he claimed to have
experienced in Lebanon. First, Younes had described only three
incidents when he first sought asylum in the United States, but at
the hearing had testified about a fourth occasion, giving the IJ
some reason to suspect recent post hoc fabrication and casting
doubt on the veracity of Younes's other accounts. Second, Younes
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had changed his account of when an alleged third incident had
occurred, initially dating the incident in April 1987 but later
attesting that it had taken place in October of that year.
Finally, and most significantly, Younes had originally written that
during the third incident he had been "pulled . . . out into the
street . . . during an exchange of gunfire," while in his testimony
Younes indicated that the third incident had consisted in his being
taken into custody "from his home and mistreated for six hours
before being released." The IJ thought these inconsistencies cast
doubt upon his story, and that Younes's explanation for them --
that he had been under stress or otherwise could not remember the
details of his encounters with Syrian forces -- was unconvincing.
The IJ also counted against Younes's credibility as to his fear of
persecution the fact that he had obtained a Lebanese passport
through normal channels, had traveled to Syria to obtain a U.S.
visa from the U.S. embassy there, and had waited months after
obtaining the visa before departing for the United States,
suggesting that his fear of remaining in the country was not as
pressing as he indicated. For these and other reasons, the IJ
determined that Younes had not presented a credible account of
persecution.
Finally, the IJ determined, following the rendered
opinion of the State Department, that even if Younes's account were
true, his experiences were merely "manifestations of the civil war
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which has gripped Lebanon for over a decade rather than persecution
within the meaning of the INA." This State Department opinion, the
IJ concluded, was consistent with our decisions in Nelson v. INS,
232 F.3d 258 (1st Cir. 2000), and Disu v. Ashcroft, 338 F.3d 13(1st Cir. 2003), under which, even were his account true, Younes
would not be entitled to asylum relief.
We need not reach any question presented regarding the
proper interpretation of the INA, because the IJ's credibility
determination settles the matter. It is an alien's burden to
establish eligibility for asylum, and to do so the alien must
present credible evidence that he has suffered persecution in the
past or otherwise fears persecution in the future. Since Younes's
asylum case rested on his testimony, the credibility of that
testimony was vital to the case. Younes therefore can win this
appeal only if he demonstrates that the IJ's credibility
determination (which, where the Board of Immigration Appeals (BIA)
summarily affirms, we review for all relevant purposes as the final
determination of the agency, see Keo v. Ashcroft, 341 F.3d 57, 60
(1st Cir. 2003)) is not supported by the record.
Under the INA, we uphold the agency's credibility
determination "unless any reasonable adjudicator would be compelled
to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also
Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir. 2003). That is not the
case here, as the insufficiently explained inconsistencies in
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Younes's story, the fact that his exit from Lebanon proceeded at a
slow pace and through legitimate channels with the apparent
acquiescence of the government, among and along with other reasons
cited by the IJ, gave the IJ sufficient initial grounds to doubt
Younes's story. Younes's failure to provide corroborating evidence
or an explanation for that failure, despite the fact that he has
brothers living in the United States and in Canada who could
reasonably have been expected to back up his story, further gave
the IJ pause, and reasonably so. Moreover, the fact that Younes's
mother, a third brother, and four sisters continue to live in
Lebanon tends to undermine (though does not conclusively discredit)
his testimony that he believed he would himself be killed upon his
return.
More to the point, Younes has not explained how the
evidence presented compels a contrary result, even if it might
suggest one. Because the adverse credibility determination of the
IJ must rest undisturbed unless a plaintiff can show that the IJ
had no reasonable choice but to conclude other than he did, and
Younes has not attempted such a showing here, our inquiry begins
and ends with the credibility question.
Younes also raises a secondary claim on due process
grounds, contending that his rights were violated when the IJ
failed to grant him a continuance in order to bring in an expert
witness, but there is nothing to this argument. Where Younes's
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counsel asked to present an expert witness and indicated that the
expert was not immediately available, the IJ asked counsel to
describe the material that would be presented by the expert.
Counsel indicated that the expert would testify that conditions in
Lebanon had not improved and may have worsened during Younes's time
in the United States, without giving any indication that the expert
knew anything about Younes in particular.
The IJ's final decision rested on Younes's credibility,
meaning that the IJ disposed of Younes's case without needing to
reach the question of current conditions in Lebanon. The expert
testimony was not relevant to these grounds for the decision, and
any error therefore did not prejudice Younes and so did not render
his hearing fundamentally unfair.1 See Mekhoukh v. Ashcroft, 358
F.3d 118, 129 (1st Cir. 2004).
For the foregoing reasons, the petition for review is
denied. The decision of the BIA is affirmed.
1
Nor is there any reason to conclude, on the basis of Younes's
submission, that there was any error at all on the IJ's part in his
handling of the proposed expert testimony. Younes suggests that
relevant objections were entered by counsel and that a request for
a continuance was made and improperly denied, but not only is all
of this irrelevant, as discussed in the text, it is far from clear
that any of it is even so: Younes provides no convincing citation
to the record in support of any of these propositions. So too with
Younes's claims that his right to a competent translator was
trampled on. By all appearances, notwithstanding Younes's
unsupported protestations on this appeal, the translator provided
was thoroughly competent.
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