Ali v. Holder ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
December 19, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
KAMMAL HASSAN ALI,
Petitioner,
v. No. 13-9544
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is therefore ordered
submitted without oral argument.
Petitioner Kammal Hassan Ali, a native of Ethiopia and a member of the Oromo
tribal group, seeks review of the Board of Immigration Appeals’ order dismissing his
appeal from the denial of his application for asylum, withholding of removal, and relief
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under the Convention Against Torture.
In 1996, when Petitioner was sixteen years old, Petitioner’s family left Ethiopia
and went to a refugee camp in Kenya. In 1999, Petitioner’s mother was granted refugee
status and permitted to enter the United States with her ten children, including Petitioner.
Petitioner subsequently became a lawful permanent resident. However, in 2001
Petitioner was convicted of a domestic violence crime that made him removable under 8
U.S.C. § 1227(a)(2)(E)(i). Petitioner conceded removability but requested asylum,
withholding of removal, and protection under the Convention Against Torture. As the
basis for this requested relief, he asserted: “My dad was killed in 1996 by the Ethiopian
government because he was an active member of the OLF (Oromo Liberation Front). All
my family (mom, siblings) have also been arrested and harmed because of this.” (R. at
731.) Petitioner requested relief based on his membership in the Oromo tribal group and
his family’s association with the OLF political group.
At his hearing before an immigration judge, Petitioner testified: “All I remember
is just problems happened to my father, due to the fact that he was participating in a
political organization called Oromo Liberation Front. That’s all I know, but, I don’t
know anything else.” (R. at 157.) At one point in the hearing, he testified that his “father
was taken by the government troops,” (R. at 145), but he stated he did not know any other
details about this incident. When asked if anything bad happened to his mother or his
siblings in Ethiopia, he responded, “I don’t remember anything like, any problems when I
was young, and was too young to remember all the problems that happened, even if it’s
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happened, so.” (R. at 147.) When specifically asked about the assertion in his asylum
application that his mother and siblings had been arrested, he testified they were arrested
but he didn’t know when or why this occurred. He testified: “I don’t really remember
what had happened, the political side, and, what exactly went, all I know is, like, maybe,
things, the fact that they arrest the parents, and my siblings. That’s all I know. And,
that’s all I know, but, I don’t know anything else relating to politics.” (R. at 161.) When
asked about his 2001 domestic violence conviction, Petitioner testified he did not “really
remember what, exactly, happened” that led to this conviction. (R. at 151.) When asked
if he hurt his wife or if there was physical contact between them, he stated, “Okay, I
really didn’t, but I, I don’t think, I, I’m, I remember hitting her, or, but, there was
problems.” (R. at 151.) The only other person who testified at Petitioner’s hearing was
his ex-wife, who explained the basis for the domestic violence conviction and appeared to
contradict Petitioner’s testimony regarding the amount of time he spent with their
children after they stopped living together. Besides his own vague testimony, Petitioner
did not present any other testimonial or documentary evidence to support his assertions
regarding his family’s involvement with the OLF and mistreatment in Ethiopia.
At the end of the hearing, the immigration judge stated: “[A]fter having carefully
observed the respondent’s testimony and his demeanor throughout these proceedings, I
find that his testimony is not credible. The testimony was not sufficiently detailed. The
respondent was not responsive to questions posed. His answers were not consistent with
this application for asylum, at this time.” (R. at 89.) The immigration judge did not find
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it credible that Petitioner was unable to remember anything that occurred when he was
sixteen years old. The immigration judge also noted that Petitioner’s mother and nine
siblings all lived in the United States and could presumably have testified about “what
happened to the family, why they were here in the United States as refugees, what
happened to the father, was he a member of the Oromo Liberation Front, did they arrest
him, did they take him away, did they kill him, were they arrested.” (R. at 88). However,
Petitioner not only failed to present such corroborating testimony, but he also failed to
present even a single affidavit or letter from one of his family members to corroborate his
assertions and fill in the details he allegedly did not remember. Thus, after a review of
the record, the immigration judge concluded that Petitioner had not proven a well-
founded fear of persecution on account of any of the five enumerated grounds for asylum
and withholding of removal. The immigration judge also concluded that Petitioner had
not proven it was more likely than not he would be subject to torture if removed to
Ethiopia. The immigration judge accordingly denied Petitioner’s application for relief,
and the Board of Immigration Appeals affirmed. This petition for review followed.
In reviewing the agency’s decision, we consider any legal questions de novo and
review the agency’s factual findings, including any credibility determinations, under the
substantial evidence standard. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004).
Under this standard, “‘the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Karki v.
Holder, 715 F.3d 792, 800 (10th Cir. 2013) (quoting 8 U.S.C. § 1252(b)(4)(B)).” “[O]ur
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duty is to guarantee that factual determinations are supported by reasonable, substantial
and probative evidence considering the record as a whole,” id. (internal quotation marks
omitted), and “we will not question the immigration judge’s or BIA’s credibility
determinations as long as they are substantially reasonable,” Diallo v. Gonzales, 447 F.3d
1274, 1283 (10th Cir. 2006).
Under this deferential standard of review, we affirm. We conclude that the
immigration judge’s adverse credibility finding is substantially reasonable and supported
by the record. While Petitioner asserts he was simply nervous and had problems with his
memory, the record does not compel the conclusion that the immigration judge erred in
attributing the defects in Petitioner’s testimony to a lack of credibility instead. Petitioner
also argues that even if his testimony is not considered credible, the country reports and
other background information in the record support his assertion that he has a well-
founded fear of persecution based on his family’s participation with the OLF as well as
his ethnic identity as an Oromo. However, apart from testimony that the immigration
judge found to lack credibility, there is no evidence to support Petitioner’s assertion that
his family was involved with the OLF. Thus, the record does not compel the conclusion
that Petitioner has a well-founded fear of persecution on account of an imputed political
opinion. Likewise, while the record contains significant support for the conclusion that
the Ethiopian government’s treatment of its citizens—particularly the 40% of the
population who are Oromo—is far from ideal, the record as a whole does not compel the
conclusion that Petitioner has a well-founded fear of being persecuted based on his
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ethnicity if he returns to Ethiopia. Cf. Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.
2009) (noting that persecution is more than simply harassment or discrimination).
For the foregoing reasons, we conclude that the agency’s decision was supported
by substantial evidence, and we accordingly DENY the petition for review. On
November 28, 2013, a member of this panel granted Petitioner’s motion for an emergency
stay of removal in order for the court to more fully consider the merits of this case.
Having now thoroughly considered the merits of the petition, and concluding that the
agency’s decision should be affirmed, we DISSOLVE the stay.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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