Haruno Musa Darbo v. U.S. Attorney General ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12767
Non-Argument Calendar
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Agency No. A200-650-875
HARUNA MUSA DARBO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 18, 2017)
Before MARTIN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Haruna Musa Darbo, a native and citizen of The Gambia, seeks review of
the Board of Immigration Appeals’s (“BIA”) decision affirming the immigration
judge’s (“IJ”) denial of his application for (1) asylum; (2) withholding of removal;
and (3) relief under the Convention Against Torture (“CAT”). Darbo first argues
the BIA erred by affirming the IJ’s finding that he was statutorily ineligible for
asylum. He then argues the BIA erred by affirming the IJ’s finding that he was not
credible and had not met the burden of proof for withholding of removal. Finally,
Darbo argues the BIA erred by affirming the IJ’s finding that he had not met the
burden of proof for CAT relief. After careful review, we dismiss Darbo’s petition
for lack of jurisdiction in part and deny his petition in part.
I.
Darbo came to the United States on an F-1 student visa on November 27,
1983. He filed an application for asylum, withholding of removal, and CAT
protection on May 25, 2010. Darbo decided to apply for asylum after he
discovered his name had been placed on a most wanted list by the National
Intelligence Agency in The Gambia. This list was published in at least two
different online newspapers. The U.S. Citizen and Immigrations Services
interviewed Darbo on December 9, 2010, and later that month referred his
application for further proceedings. On January 3, 2011, the U.S. Immigration and
Customs Enforcement served Darbo with a notice to appear, informing him that
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removal proceedings against him were beginning. The notice to appear said Darbo
was removable because he failed to maintain the conditions of the student visa
under which he was admitted to the United States.
Darbo did not contest the government’s allegations and conceded
removability. Instead he sought asylum and withholding of removal based on his
political opinion and membership in a particular social group, as well as CAT
protection. Darbo explained several of his colleagues had been threatened and
unjustly detained by the Gambian government. He also said that if he returned to
the The Gambia, he would be detained, tortured, and killed. Darbo pointed to the
most wanted list for proof of his claims. He also submitted a U.S. Department of
State report on The Gambia’s human rights issues, as well as a number of
affidavits and articles describing political turmoil, unrest, and Darbo’s activism in
The Gambia. Darbo attached to his application a statement saying that his father
was a founding member of the People’s Progressive Party, and that several other
close family members were heavily involved with that political party and other
ideologically similar parties as well. Darbo explained that a coup d’état occurred
in The Gambia in 1994, and the resulting authoritarian regime was not friendly to
his family’s political involvements. He claimed there was significant danger in
The Gambia to political dissidents, and also said he would be targeted because of
his family, his activism in helping Gambian journalism, an interview with a
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Gambian newspaper in which he was critical of the Gambian government, and
because he was on the most wanted list.
On May 14, 2014, an IJ held a hearing at which Darbo testified. On
December 3, 2014, the IJ denied Darbo’s application. The IJ found that Darbo was
not credible. In making this adverse credibility determination, the IJ pointed to
inconsistences in Darbo’s statements about his claimed relatives, inconsistent dates
he provided, and key omissions in his application and testimony. The IJ concluded
that (1) Darbo’s asylum application was time-barred and his testimony and
corroborating evidence were not credible and thus could not show changed
circumstances to excuse the time bar; (2) Darbo’s removal would not be withheld
because he could not meet his burden of proof given the lack of credible evidence;
and (3) Darbo was not eligible for CAT protection because he had not met his
burden of proof given the lack of credible evidence. Darbo appealed this decision
to the BIA. The BIA affirmed and adopted the IJ’s decision on April 25, 2016.
This appeal followed.
II.
We review de novo whether we have subject-matter jurisdiction over a
claim. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). When the BIA
issues a decision, we review only that decision and the IJ’s decision to the extent
the BIA adopted it. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir.
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2007). In this case, the BIA expressly adopted and affirmed the IJ’s decision so we
review both decisions.
We review de novo the BIA’s legal determinations. Id. Any factual
determinations are reviewed under the “substantial evidence” test. Id. Substantial
evidence means that the BIA’s decision is “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (quotation omitted). This Court
will reverse factual findings “only when the record compels a reversal; the mere
fact that the record may support a contrary conclusion is not enough to justify a
reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022,
1027 (11th Cir. 2004) (en banc).
A.
Darbo argues the BIA erred by affirming the IJ’s finding that he was
statutorily ineligible for asylum. Generally, asylum applications must be “filed
within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B). However, an untimely application may be considered “if the
alien demonstrates . . . either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application.” Id. § 1158(a)(2)(D).
We do not have jurisdiction to review the BIA’s factual determination about
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whether a petitioner met the one-year time limit or whether an exception applies.
Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per
curiam); 8 U.S.C. § 1158(a)(3).
Darbo says the BIA erred by discrediting his testimony, and therefore he was
not afforded due process. This Court does have jurisdiction to review
constitutional claims or questions of law raised in a petition for review. Arias v.
U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007) (per curiam); 8 U.S.C.
§ 1252(a)(2)(D). However, although Darbo says he is raising a due process
challenge, his argument is really about a factual determination: whether the
evidence he presented was credible and demonstrated changed circumstances. The
record shows the IJ considered Darbo’s evidence and reached a different factual
conclusion than the one Darbo argued. Under Arias, we cannot consider factual
challenges about how the evidence was weighed “couched in constitutional
language.” 482 F.3d at 1284. Therefore, we lack jurisdiction to consider Darbo’s
challenge to the timeliness of his asylum application. See id. As a result, this
claim is dismissed.
B.
Darbo next argues the BIA erred in affirming the IJ’s finding that he did not
meet his burden of proof required for withholding removal. Darbo says the IJ
erred in its credibility determinations. He claims the inconsistencies and omissions
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identified by the IJ in making its adverse credibility determination about him were
“immaterial” and “irrelevant.” Darbo also argues he provided sufficient
corroborative evidence to rehabilitate his testimony, and says the IJ did not
properly consider that evidence.
Removal must be withheld if “the alien’s life or freedom would be
threatened . . . because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). Darbo bears
the burden of demonstrating it is “more likely than not” that he will be persecuted
or tortured upon return to The Gambia. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1232 (11th Cir. 2005) (per curiam). This burden can be met either by
showing past persecution based on a protected ground or by showing a future
threat. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006).
Credibility determinations are factual determinations that we review for
substantial evidence. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th Cir.
2006) (per curiam). 1 When an alien’s testimony is found credible, it alone can be
sufficient to establish eligibility for relief from removal. Id. at 1231. But because
the IJ specifically found that Darbo was not credible, Darbo has the burden to show
the IJ’s finding was not supported by “specific, cogent reasons” or “was not based
on substantial evidence.” Id. at 1232 (quotation omitted). In making credibility
1
Credibility determinations for withholding of removal are made in the same manner as
those for asylum purposes. 8 U.S.C. § 1231(b)(3)(C).
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determinations, the IJ is directed to consider “the totality of the circumstances, and
all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). These include the applicant’s
demeanor and candor; the plausibility of the applicant’s account; the consistency
between the applicant’s written and oral statements; and the consistency of such
statements with other evidence in the record. Id.
Darbo does not contest the inconsistencies and omissions identified by the IJ
in its finding that he was not credible. Instead he says some of them are easily
explained and challenges their materiality. But the IJ may base its credibility
determination on any inaccuracy, “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Id. Neither
does Darbo challenge all of the inconsistencies and omissions recognized by the IJ.
We cannot reverse a factual determination unless the record compels it, even when
the record may support a contrary conclusion. Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1255 (11th Cir. 2006) (per curiam). On this record then, we must affirm the
IJ’s adverse credibility determination of Darbo.
Darbo then says his corroborating evidence rehabilitated his testimony, and
says the IJ did not properly consider that evidence. An adverse credibility
determination does not end the IJ’s inquiry. The IJ “must still consider all
evidence introduced by the applicant.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1287 (11th Cir. 2005). In this case, Darbo submitted a great deal of corroborating
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evidence including copies of newspapers that published the most wanted list with
his name in it, a U.S. Department of State report on The Gambia’s human rights
issues, and many affidavits and articles describing political turmoil, unrest, and
Darbo’s activism in The Gambia. However, the IJ found this evidence
unconvincing. The IJ explained that the online newspapers Darbo presented
lacked sufficient reliability, and found other evidence indicating they were
fabricated. The IJ also found that the only letter supporting his claim of
endangerment was from an interested witness.
On this record, we cannot say the IJ’s credibility finding regarding Darbo’s
corroborating evidence was not supported by substantial evidence. See Al Najjar,
257 F.3d at 1284. And this Court cannot reverse the IJ’s determination that there
was not sufficient corroborating evidence unless we find “that a reasonable trier of
fact is compelled to conclude” otherwise. See 8 U.S.C. § 1252(b)(4)(D). As a
result, we must deny Darbo’s claim that he met his burden of proof for withholding
of removal.
C.
Darbo last argues the BIA erred in affirming the IJ’s finding that he did not
meet his burden of proof required for protection under the CAT. He says if he
returns to The Gambia, he will be tortured, imprisoned, and possibly killed as a
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political dissident. He also says the BIA’s decision to deny him CAT protection
was rooted in the erroneous adverse credibility determinations.
Darbo must establish “that it is more likely than not that he . . . would be
tortured if removed to the proposed country of removal.” Reyes-Sanchez v. U.S.
Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quoting 8 C.F.R.
§ 208.16(c)(2)). Unlike the statutory withholding of removal, CAT eligibility does
not require the torture be based upon a protected ground. See id. Darbo must
show that the torture would be inflicted by someone with the consent of the
government or that the government would be aware of the torture and fail to
intervene. See id.
Darbo has not met this burden. His claim here rests upon the credibility
determinations regarding his testimony and the corroborating evidence, and we
have already concluded those determinations were supported by substantial
evidence. Therefore, we must deny this claim as well.
PETITION DISMISSED in part for lack of jurisdiction and DENIED in
part.
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