Prosper v. Mukasey ( 2008 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1751
KETTLY PROSPER,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lipez and Howard, Circuit Judges,
and Besosa**, District Judge.
Susana L. Schafer, on brief for petitioner.
Ronald B. Seely, Attorney, Office of Immigration Litigation,
Ahn-Thu P. Mai, Senior Litigation Counsel, Office of Immigration
Litigation, Jeffrey S. Bucholz, Acting Assistant Attorney General,
Department of Justice, on brief for respondent.
October 20, 2008
*
Of the District of Puerto Rico, sitting by designation.
BESOSA, District Judge. The Board of Immigration Appeals
(“BIA”) adopted and affirmed an Immigration Judge’s (“IJ”) denial
of Kettly Prosper’s claims for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
Ms. Prosper, a native and citizen of Haiti, petitions this court
for a review of the BIA’s denial of her claims. We deny the
petition for review.
I. Background
The IJ made an adverse credibility finding because of material
inconsistencies between Ms. Prosper’s testimony before the IJ and
her prior testimony. This adverse credibility determination is the
basis for our denial of Ms. Prosper’s claims for asylum,
withholding of removal and protection under CAT.
Ms. Prosper arrived in or around Miami, Florida from Haiti on
or about January 16, 2001. She did not pass through any kind of
immigration control. On September 6, 2001, Ms. Prosper filed a
Form I-589 Application for Asylum and Withholding of Removal. In
the form she claimed that if she returned to Haiti she would be
persecuted on account of her political opinions and her membership
in a particular social group known by its acronym as “MDN.” An
Asylum Officer (“AO”) interviewed Ms. Prosper on April 4, 2002,
which lead to the referral of her application to the immigration
court because the AO determined that her testimony was not
credible. On April 18, 2002, the Immigration and Naturalization
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Service (“INS”) served Ms. Prosper with a Notice to Appear (“NTA”)
in person, charging her with removability, and placed her in
removal proceedings.
Ms. Prosper appeared at four hearings. On September 6, 2002,
she appeared pro se at the Miami Immigration Court, requested a
continuance, and informed that court that she would file a change
of venue motion. On March 5, 2003, Ms. Prosper appeared at the
Boston Immigration Court where she admitted the factual allegations
of the NTA and conceded removability. On March 10, 2005, she
appeared once again before the Boston Immigration Court, at which
time the court found that Ms. Prosper’s application was timely
filed. Finally, on June 2, 2005, Ms. Prosper appeared before the
Boston Immigration Court again and testified concerning the factual
background to her claims. The following is a summary of her
June 2, 2005 testimony, except where a statement is specifically
attributed to a different source.
Ms. Prosper testified that she suffered persecution in Haiti
because she was a member of a political party called “MDN.” She
testified that MDN stands for “National Democratic Movement.”
After being informed that MDN actually stands for Mobilization for
National Development, Ms. Prosper responded that some people call
the organization National Democratic Movement. There is no other
support for this dual name, however, in the record. She initially
said that she joined MDN in October 1990. When asked if party
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leader Hubert de Ronceray left Haiti between 1990 and 2001,
Ms. Prosper answered no. When Ms. Prosper was told affirmatively
that Ronceray was expelled from Haiti in 1990 and that he went into
exile in 1997, she admitted that she was unaware of Ronceray’s
departures, but she explained this by saying that she did not join
the MDN until October 1999, not 1990. She said she misunderstood
the earlier question concerning her joinder of MDN. Her MDN
membership card was dated 1995 and had an illegible seal. To
explain why her card was dated 1995, when she later claimed to have
joined MDN in 1999, Ms. Prosper stated that the card was pre-made.
Ms. Prosper was also unaware of other significant political
events impacting the MDN. On May 21, 2000, there was a disputed
election in Haiti, after which opposition parties, including the
MDN, joined together to form the Democratic Convergence.
Nonetheless, Ms. Prosper did not identify the Democratic
Convergence, was unable to state whether MDN joined any coalitions,
and could not recall if there were elections in Haiti in the year
2000 prior to the election held in November 2000.
Ms. Prosper said that she invited people to meetings on behalf
of MDN and then listened to speakers at those meetings. She said
that once she arrived in the United States, she stopped all
involvement in MDN or any other political organization. She did
not know the date MDN was founded. She was also unaware of the
name of the current president of Haiti.
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Ms. Prosper also testified that she was attacked on two
separate occasions because of her membership in MDN. The first
alleged attack occurred on November 27, 2000. She testified that,
as she was walking along a street, she was surrounded by five men
who accused her of working for MDN. The men told her that she had
to work for Lavalas or die. The men pushed her into a car; when
the car broke down a few miles later, the men argued over what to
do with her. One man wanted to kill her whereas another man said
to let her go because they would be able to find her again and kill
her later. The men then threw her out of the car, kicked her
several times and left. She laid on the ground until people
passing by gave her water and helped her get into a taxi. The
attackers worked for Aristide, according to Ms. Prosper, because
they referred to Lavalas and used violence against her.
Ms. Prosper’s recollection of events seemed to vary with each
telling. In her interview with the AO she did not mention that the
men who grabbed her were Aristide supporters, and did not say that
they told her to “work for Lavalas or die.” In that interview she
said they told her she would “find out” and that they said “kill
the bitch.” In the Form I-589 submitted on September 6, 2001,
however, Ms. Prosper claimed that she was “arrested” by “Lavalas
government” workers who told her “[y]ou are in opposition against
Lavalas. You lost. Aristide or death.” In that same form she
claimed that the car only drove three blocks before running out of
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gas. This also differs slightly from her June 2005 affidavit, in
which she stated that the car went five blocks, before she was
thrown from the car and landed on her head, but in which she made
no mention of being kicked. In that affidavit Ms. Prosper said
that she thought she was attacked because she did not vote in the
November 2000 presidential elections and she made no mention of her
membership in MDN.
The second alleged attack occurred on December 3, 2000. At
11:30 p.m., five men entered her house by breaking down the door.
They shouted her name, asked where she was and accused her of
working for MDN. They blindfolded a few people that were in her
house and then she was beaten, raped and left unconscious.
Ms. Prosper’s mother treated her with herbal medicine but she began
to vomit blood so her mother took her to a hospital in Aux Cayes,
where she stayed for three days. She did not tell the doctor at
that hospital that she had been raped because she felt embarrassed
and traumatized. Upon leaving the hospital, she went to a friend’s
house because she was afraid to go home. From there she went to
Gonaives and boarded a boat for the United States. She left Haiti
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on January 12, 2001 and arrived in the United States on
January 16, 2001.2
As with Ms. Prosper’s testimony concerning the earlier attack,
there are inconsistencies between her accounts of the
December 3, 2000 attack. In her June 2005 affidavit, Ms. Prosper
states that everyone in her house was blindfolded. In her
statement to the AO, however, Ms. Prosper said that her brother and
father were tied up and blindfolded, and that she was kicked and
beaten unconscious, but she did not mention that she was raped.
She also failed to mention that she was raped in her Form I-589
submitted on September 6, 2001. She also failed to tell the AO
that she was hospitalized. Nor did she mention in her September
2001 Form I-589 that she was hospitalized. Although psychiatric
evaluation did report Ms. Prosper as saying she was hospitalized,
the evaluation notes that she said that her cousin, not her mother,
took her to the hospital in Aux Cayes. Ms. Prosper submitted no
documentation related to her hospital visit.
Ms. Prosper further testified that she became HIV positive as
a result of the rape on December 3, 2000. She said that she first
2
Ms. Prosper testified that she paid $2,000 to someone who
arranged her transport to the United States. She said that she
left Haiti on a large boat, then transferred to a small boat that
took her ashore in Miami. She then met a Haitian person who drove
her to her aunt’s house. She did not mention any of this
information in her September 2001 Form I-589. In her June 2005
affidavit, she stated that she arrived in the United States at the
“Port of Miami” and requested asylum. The IJ noted that
Ms. Prosper struggled to provide any more detail upon request.
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discovered she was HIV positive between 2001 and 2002, but she has
no record of the diagnosis at that time. A letter submitted by her
treating physician to the court states that Ms. Prosper was
diagnosed as HIV positive in July 2004.
Despite Aristide’s ouster in 2004, Ms. Prosper claims that she
fears returning to Haiti because Aristide supporters still abound
and she believes those supporters will find her and kill her. She
heard from a friend that MDN still exists and she said that she
would continue to be active in MDN if she returned to Haiti.
II. Standard of Review
Ordinarily this court reviews the decision of the BIA, but
where the BIA adopts the opinion of an IJ, we then must also review
the decision of the IJ. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st
Cir. 2004). In this case, the BIA adopted and affirmed the
decision of the IJ, although it also briefly explained why it did
not find the Petitioner’s appeal persuasive.
We review the BIA’s findings of fact under the “substantial
evidence” standard which applies to claims of asylum, withholding
and protection under CAT. Id. The BIA’s findings, including
credibility determinations, must be upheld as long as they are
“supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Pan v. Gonzales, 489 F.3d 80,
85 (1st Cir. 2007) (quoting INS v. Elias-Zacarias, 502 U.S. 478481, 112 S.Ct. 812 (1992) (citation omitted)). This deferential
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standard permits reversal of a BIA decision on sufficiency grounds
only where the record evidence would compel a reasonable factfinder
to make a contrary determination. Aguilar-Solis v. INS, 168 F.3d
565, 569 (1st Cir. 1999) (citing Elias-Zacarias, 502 U.S. at 481 &
n.1.).
III. Discussion
On appeal Ms. Prosper argues that the BIA should have
overturned the IJ’s credibility determination as clearly erroneous
and not based upon substantial evidence. In ruling against her,
Ms. Prosper argues, the IJ relied upon illusory or minor
inconsistencies that do not touch upon the heart of the asylum
claim. While true that the credibility determination may not rest
on trivial discrepancies, Pan v. Gonzales, 489 F.3d at 86(citations omitted), many of the discrepancies in this case are
material to Ms. Prosper’s claim, and the numerous seemingly minor
discrepancies also undermine Ms. Prosper’s credibility. Id.(“Some of these inconsistencies, in isolation, may seem like small
potatoes. What counts, however, is that their cumulative effect is
great.”) (citation omitted).
To establish eligibility for asylum, an alien such as
Ms. Prosper must demonstrate that she is a refugee. 8 U.S.C. §
1158(b)(1); 8 C.F.R. § 208.13(a). Refugee is defined by the act as
a person unable or unwilling to return to her country or
nationality (or country of last habitual residence) “because of
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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).
Ms. Prosper bears the burden of proof for establishing her
eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). To show past
persecution, she must provide “conclusive evidence” that she has
suffered persecution on one of the five protected grounds.
Romilus, 385 F.3d 1 at 6 (citation omitted). To show a
well-founded fear of future persecution, Ms. Prosper must show both
that her fear is genuine and that it is objectively reasonable,
Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999) (citing
Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir. 1990)), or she may
benefit from a regulatory presumption based upon proof of past
persecution. Khalil v. Ashcroft, 337 F.3d 50, 55 (1st Cir. 2003).
To meet the objective prong of the well founded fear test,
Ms. Prosper need only show a “reasonable possibility” that, if
denied asylum (and thereafter removed to her homeland), she will be
persecuted on account of a protected ground. Aguilar-Solis v. INS,
168 F.3d 565, 572 (1st Cir. 1999) (citing INS v. Cardoza-Fonseca,
480 U.S. 421, 440 (1987)). This showing requires “credible,
direct, and specific evidence.” Khalil, 337 F.3d at 55 (citation
omitted).
To qualify for withholding of removal, which provides
mandatory relief, Ms. Prosper must meet a higher standard than that
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required for asylum: she must show that, more likely than not, she
faces persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion,
should she return to her homeland. INS v. Aguirre-Aguirre, 526
U.S. 415, 419 (1999).
Relief under the CAT, unlike asylum or withholding of removal,
does not require Ms. Prosper to prove the reason for torture.
Romilus, 385 F.3d at 8. Instead, an applicant must prove that it
is more likely than not that she will be tortured if she is
returned to the proposed country of removal. Id. To establish a
prima facie claim, Ms. Prosper must offer specific objective
evidence showing that she will be subject to “(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.” Id. (citing Elien v. Ashcroft,
364 F.3d 392, 398 (1st Cir. 2004) (citations omitted)).
On appeal Ms. Prosper argues that many of the inconsistencies
perceived by the IJ were actually differences in detail,
differences in word choice, or indicative of a misunderstanding by
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the IJ.3 She adds that the IJ and the BIA failed to evaluate the
materiality of the inconsistencies in Ms. Prosper’s testimony.
This second assertion is simply not true; the IJ specifically
stated that the discrepancies and inconsistencies in Ms. Prosper’s
testimony were material to her claims for relief. We agree. We
also note, as we have before, that a witness’s demeanor may be a
critical factor in determining her truthfulness. Laurent v.
Ashcroft, 359 F.3d 59, (1st Cir. 2004). “Where, as here, the
judicial officer who saw and heard the witness makes an adverse
credibility determination and supports that determination with
specific findings, an appellate court should treat that
determination with great respect.” Id. (citations omitted).
The IJ grouped the discrepancies in Ms. Prosper’s testimony
into six different categories: (1) her involvement in MDN; (2) the
3
For example, Ms. Prosper notes on appeal that the IJ found
her testimony concerning the November 27, 2000 attack to be
inconsistent because she asserted at one point that she was
attacked because she did not vote in the November 2000 elections,
whereas she asserts at another point that she was attacked because
of her membership in MDN. Ms. Prosper argues that this difference
in testimony reflects a difference in detail rather than a
difference in substantive testimony because she explained at
another point in her testimony that only Lavalas party members
voted in the November 2000 election. Therefore when she said that
she was attacked for not voting in the election, it was implicit
that she was attacked for not being a Lavalas supporter, although
this does not mean that she was necessarily a MDN member (as MDN
did not represent all non-Lavalas supporters). Although
Ms. Prosper’s explanation of this inconsistency cited by the IJ may
be persuasive, there are still numerous other inconsistencies that
abound in the record which Ms. Prosper has not addressed to our
satisfaction.
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November 27, 2000 attack; (3) the December 3, 2000 attack; (4) her
hospitalization subsequent to the December 3, 2000 attack; (5) her
arrival in the United States; and (6) her diagnosis as being HIV
positive. The most important of these six categories is the first
one, which is the basis for Ms. Prosper’s claims for asylum and
withholding of removal.
Ms. Prosper claims that she was persecuted in the past because
of her involvement with MDN, thus thrusting her involvement with
MDN to the forefront of this case. She erroneously believed that
the acronym MDN stands for National Democratic Movement, when it
actually stands for Mobilization for National Development. She was
unaware that the leader of the MDN left Haiti twice in the 1990s.
She claimed that she joined MDN in 1990, later claimed that she did
so in 1999, and submitted a MDN membership card that appears to
have been issued in 1995. Finally, and perhaps most importantly,
Ms. Prosper failed to recall two watershed events in MDN history:
the disputed May 2000 election and MDN’s subsequent joinder of
other opposition parties to create a coalition called the
Democratic Convergence. Altogether, Ms. Prosper’s inconsistent
statements, and apparent lack of awareness concerning MDN-related
matters, provide ample ground to support the IJ’s adverse
credibility finding.
Although we have previously noted other discrepancies in
Ms. Prosper’s testimony, they are not as striking or significant as
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those concerning MDN and do not merit additional examination here.
Nevertheless, they further support the IJ’s adverse credibility
determination.
The discrepancies in Ms. Prosper’s testimony, especially those
regarding events giving rise to her claims for asylum, withholding
of removal and protection under CAT, provide substantial evidence
to support the IJ’s adverse credibility determination. This
adverse credibility determination is fatal to all three claims
(asylum, withholding of removal, and CAT) because they all rely on
the same discredited testimony.4 See, e.g., Desna v. Gonzales, 454
F.3d 896, 898-99 (8th Cir. 2006). Accordingly, we conclude that
the IJ did not err in determining that Ms. Prosper was not
credible.
IV. Conclusion
For the reasons stated above, we deny the petition for review
and affirm the decision of the BIA.
4
We note that in so deciding, we have not stated that an
adverse credibility finding that defeats a request for asylum a
fortiori defeats a CAT claim. See Settenda v. Ashcroft, 377 F.3d
89, 94-95 (1st Cir. 2004). Rather, Ms. Prosper does not point to
any other evidence in the record outside of her discredited
testimony that supports her CAT claim.
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