Tandia v. Gonzales ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 8, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ISSA TAN D IA ,
Petitioner,
No. 06-9565
v. (No. A97-201-584)
(Petition for Review)
ALBERTO R. GONZALES,
United States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
Petitioner Issa Tandia, a native and citizen of M auritania, seeks review of
the Board of Immigration Appeal’s (BIA’s) decision affirming an Immigration
Judge’s (IJ’s) order that denied his application for asylum. 1 Specifically, he
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
The IJ also denied M r. Tandia’s applications for restriction on removal and
relief under the Convention Against Torture (CAT), but M r. Tandia did not
pursue those avenues on appeal to the BIA; nor has he raised them in the instant
petition. Consequently, they are waived. See Tulengkey v. Gonzales, 425 F.3d
(continued...)
challenges the BIA’s determinations that his testimony was not credible and that
his fear of being persecuted in M auritania w as negated by changed country
conditions. W e conclude that the BIA’s credibility determination was properly
supported, and thus we deny the petition without reaching the issue of changed
country conditions.
B ACKGROUND
Tandia was born in Kaedi, a south-central M auritanian town near the
Senegalese border. He is a Soninké black African. During the 1989-91 period,
ethnic conflict within M auritania culminated with the government of President
M aaouiya Ould Sid’Ahmed Taya expelling tens of thousands of black A fricans. 2
Following the January 1992 presidential election, President Taya’s government
arrested supporters of the opposition political party. 3
Tandia’s father was an opposition-party organizer, who was arrested in
January 1992 after the election, along with Tandia’s mother and siblings. Two
weeks later, Tandia, who was then twelve, was purportedly arrested in Kaedi and
1
(...continued)
1277, 1279 n.1 (10th Cir. 2005).
2
See Human Rights W atch/Africa, M auritania’s Cam paign of Terror at 2-3,
5 (1994), Admin. R. at 268-69; see also U.S. Dep’t of State, 1999 Country
Reports on Human Rights Practices at 2 (2000),
http://www.state.gov/www/global/human_rights/1999_hrp_report/mauritan.html,
Admin. R. at 416.
3
See Human Rights W atch, Human Rights D evelopments: M auritania,
http://www.hrw.org/reports/1993/W R93/Afw-05.htm, Admin. R. at 220-21.
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taken to a M auritanian military camp, where he was “repeatedly interrogated
about his father’s political activities,” and “kicked and beaten with a police baton
every two to three days.” Pet’r Br. at 5. Tandia claims that after about three
weeks, he was transported to the Senegalese River and forced to cross into
Senegal. He spent the next ten years in a small Senegalese refugee camp. In
October 2002, at the age of twenty-two, he entered the United States using a
friend’s passport.
After several months in this country, Tandia applied for asylum, stating on
his application that he left M auritania on “09-10-91,” A dmin. R. at 507, that his
father was killed while in police custody “because of his membership [in the
opposition political party during the] 1991-92 election,” id. at 511, and that he
believed he would be harmed by the government of President Taya if returned to
M auritania, id. Tandia w as interview ed by an Asylum Officer, who found him
ineligible for asylum and referred him to an IJ.
A t the immigration hearing, Tandia provided conflicting testimony. He
first claimed that he was arrested about two weeks after his father, who was
arrested “right after” the January 1992 elections, id. at 89, and that he (Tandia)
was held for about three weeks before being expelled into Senegal, id. at 90, 94.
But upon further inquiry by the IJ, Tandia testified that his asylum application
correctly recited that he left M auritania on September 10, 1991. Id. at 127.
Given that he could not have been arrested in Kaedi in 1992 if he had been
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expelled from M auritania in 1991, the IJ made further inquiry. Tandia claimed
that the person who assisted him with the asylum application “made mistakes,”
but then he again testified that he was arrested two weeks after his father in
January 1992 and that he “left M auritania [in] September 1991,” id. at 131. And
when asked once more about the discrepancy, Tandia changed his testimony,
stating that he left M auritania in September 1992. Id. at 132. But he continued to
testify that he was arrested “[t]wo, three weeks” after his father, “right after” the
January 1992 elections. Id. at 134. The Asylum Officer also appeared at the
hearing, testifying that Tandia told him that he was arrested on September 10,
1991, that he was deported to Senegal the same day, and that he later learned that
his father w as arrested in 1992 and had died in prison. Id. at 151, 153-54; see
also id. at 233 (Asylum Officer’s written report).
Tandia’s credibility was further undermined by his testimony that (1) the
population of Kaedi was around 800 (presumably at the time of his expulsion), id.
at 116, when it is presently “a city of over 60,000 people and is the largest city
and administrative center of the Gorgol region of Southern M auritania,” 4 (2) he
could not recall the name of the refugee camp, Admin. R. at 137; and (3) he
learned the B ambara language, in which he testified in part, from his father’s
4
W ikipedia, Kaédi, at http://en.wikipedia.org/wiki/Ka% C3% A9di (last
visited M ay 21, 2007).
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friends w ho lived in Nouakchott, the M auritanian capital, even though Bambara is
not w idely spoken there, id. at 125.
The IJ denied Tandia relief, finding that he was not credible, that his fear of
persecution was undermined by changed conditions in M auritania, and that he had
resettled in Senegal. Accordingly, the IJ ordered him removed to either
M auritania or Senegal. The BIA affirmed in a one-member order, agreeing with
the IJ that Tandia was not credible, but citing only Tandia’s conflicting dates and
inability to recall the name of the refugee camp. The BIA also agreed with the IJ
about conditions in M auritania, relying on the State D epartment’s 2003 Country
Report on M auritania as showing that “most of the people who were expelled or
fled during the worst period of abuse have returned to M auritania with the
consent of the government,” which is cooperating in efforts to assist returning
refugees and returning confiscated property. Id. at 3. The BIA did not address
resettlement.
Tandia now petitions this court for review.
D ISCUSSION
I. Standards of Review
Because a single member of the BIA decided Tandia’s appeal and issued a
brief opinion, “we review the BIA’s decision as the final agency determination
and limit our review to issues specifically addressed therein.” Diallo v. Gonzales,
447 F.3d 1274, 1279 (10th Cir. 2006). W e review the BIA’s factual findings for
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substantial evidence, reversing only if “the record demonstrates that any
reasonable adjudicator would be compelled to conclude to the contrary.” Sarr v.
Gonzales, 474 F.3d 783, 788-89 (10th Cir. 2007) (quotation omitted). The BIA’s
legal conclusions, however, are reviewed de novo. Diallo, 447 F.3d at 1279.
II. Refugee Status
To be eligible for asylum, an alien must qualify as a refugee by showing
that he or she has “suffered past persecution or has a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280
(10th Cir. 2005) (footnote, quotations, and alteration omitted). “Aliens basing
their asylum claims upon a well-founded fear of future persecution must show
both a genuine, subjective fear of persecution, and an objective basis by credible,
direct, and specific evidence in the record, of facts that would support a
reasonable fear of persecution.” Yan v. Gonzales, 438 F.3d 1249, 1251 (10th Cir.
2006) (quotation omitted).
III. Credibility
“[A]n asylum applicant’s otherwise credible testimony constitutes
sufficient evidence to support an application.” Solomon v. Gonzales, 454 F.3d
1160, 1165 (10th Cir. 2006). “[W]e will affirm a denial of asylum based on an
adverse credibility finding only if the IJ or the BIA has presented specific, cogent
reasons for the finding.” Id. at 1164 (quotation omitted). A proper incredibility
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determination may “be based upon such factors as inconsistencies in the witness’
testimony, lack of sufficient detail or implausibility.” Elzour v. Ashcroft,
378 F.3d 1143, 1152 (10th Cir. 2004).
Tandia first assigns error to the BIA’s failure to explicitly address his
explanations for providing inconsistent expulsion dates. He claims that the
inconsistencies resulted from (1) mistakes in translation by individuals helping
with his asylum application and interview; and (2) his difficulty remembering
events that occurred a decade earlier, when he was only twelve. In discussing
Tandia’s credibility, the BIA cited the pages of the IJ’s decision that analyzed the
credibility issue, including Tandia’s explanations. Because a one-member brief
affirmance by the BIA “is, by definition, a truncated process which can rest on
what has been said below, we may consult the IJ’s opinion to the extent that the
BIA relied upon or incorporated it.” Sarr, 474 F.3d at 790.
The IJ discounted Tandia’s explanations, finding it unlikely that two
different translators made the same mistake in identifying September 10, 1991, as
Tandia’s expulsion date, and that “[i]t was up to [Tandia] to provide accurate
information.” A dmin. R. at 59-60. W e agree, and conclude that Tandia’s
explanations do not account for his continued insistence on the 1991 date up until
the middle of the merits hearing— where he was assisted by a third translator and
also testified in English. Further, Tandia has not attempted to explain how his
mid-hearing change of the expulsion date to September 1992 w ould make sense
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with his other testimony, which was that he was arrested two weeks after his
father, “right after” the January 1992 elections, id. at 89, and that he was held for
only three weeks before being expelled into Senegal.
Tandia also argues, without elaboration, that “the inconsistencies did not go
to the heart of his application.” Pet’r Br. at 13. 5 W hile a “minor discrepancy”
that makes “no difference to the strength or plausibility of [the alien’s] story” will
not support “an adverse credibility finding,” Sarr, 474 F.3d at 796, Tandia’s
inconsistent expulsion dates cast doubt on the basic premise of his story.
Specifically, if he was arrested and expelled from M auritania on September 10,
1991, as he claimed until the middle of the merits hearing, then he could not have
been arrested in Kaedi after the January 1992 election and beaten and interrogated
for three weeks about his father’s political activities. And if he was expelled in
September 1992, he would had to have been detained much longer than three
weeks.
Tandia additionally claims that the BIA misconstrued his testimony when it
found it “implausible that [he] lived in a refugee camp in Dakar, Senegal for 10
years, but was unable to recall the name of the camp.” A dmin. R. at 2-3. Tandia
testified, “I don’t know the name [of] the refugee camp,” id. at 137, “I don’t
5
Under the Real ID Act of 2005, a credibility determination may be made
“without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). This provision of
the A ct, however, does not affect Tandia, as he sought asylum before the Act’s
effective date, M ay 11, 2005. See Yan, 438 F.3d at 1251-52 n.3.
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know exactly the name [of] the camp,” id. at 138, and “(Through interpreter) I
can’t remember the whole thing, but I remember it was refugee camp of Dakar.
(In English) And some other word - - I don’t remember all this one,” id. at 143.
W hile it may have been more accurate for the BIA to say that Tandia w as unable
to recall the camp’s complete name, it w as not “substantially unreasonable,”
Diallo, 447 F.3d at 1283, for the BIA to consider Tandia’s memory lapse, in
conjunction with his date discrepancies, to find him not credible.
W e uphold the BIA’s credibility determination, which was specific and
cogent.
Because an adverse credibility finding necessarily precludes a
determination that the alien has demonstrated past persecution or subjectively
fears future persecution, Ramsameachire v. Ashcroft, 357 F.3d 169, 179, 185
(2nd Cir. 2004), see also Diallo, 447 F.3d at 1283 (affirming BIA’s decision to
deny asylum on the basis of incredibility alone), we need not reach the B IA’s
alternate finding that improved conditions in M auritania w ould negate Tandia’s
fear of persecution. 6
6
W hile it may be appropriate to consider country conditions in the context of
a CAT claim even when the alien is found not credible, see Tarrawally v.
Ashcroft, 338 F.3d 180, 188 (3d Cir. 2003) (holding that “a decision-maker must
review claims for relief under the [CA T] and consider relevant country conditions
even where adverse credibility determinations have precluded relief under the
IN A”), Tandia did not pursue his CAT claim on appeal to the BIA or in his
petition to this court. Consequently, we do not consider it. See supra note 1.
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The petition for review is DENIED, and we VACATE the stay imposed by
this court on July 17, 2006.
Entered for the Court
M ary Beck Briscoe
Circuit Judge
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