Wilner Jacques v. U.S. Attorney General , 153 F. App'x 685 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________ FILED
U.S. COURT OF APPEALS
No. 05-11405 ELEVENTH CIRCUIT
NOVEMBER 3, 2005
_______________________
THOMAS K. KAHN
CLERK
BIA No. A79-436-511
WILNER JACQUES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(November 3, 2005)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Wilner Jacques, a native and citizen of Haiti, petitions this Court for review of
the final order of the Board of Immigration Appeals (“BIA”), which affirmed the
immigration judge's (“IJ”) denial of asylum, 8 U.S.C. § 1158, based on an adverse
credibility determination. Removal proceedings commenced after April 1, 1997; the
permanent provisions of the Immigration and Nationality Act, as amended by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, 110 Stat. 3009 (1996), govern this petition.
I. Background
Jacques entered the United States through the Miami International Airport on
February 4, 2002, without a valid entry visa and with an airline ticket that indicated
that he was in transit to Haiti. Upon arriving in Miami, Jacques sought asylum based
on his fear of political persecution.1 The Immigration and Naturalization Service
(“INS”) issued a Notice to Appear charging him with removability under INA §§
212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I), 8 U.S.C. §§ 1182(a)(6)(C)(i) and
1182(a)(7)(A)(i)(I).
Jacques alleged that he had been persecuted by, and feared further persecution
from, the Lavalas Party, the party of former Haitian President Jean-Bertrand Aristide,
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Jacques also requested withholding of removal and relief under the Convention Against
Torture. The IJ denied both, and Jacques does not challenge those decisions on appeal.
Therefore, he has abandoned them. Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 (11th Cir. 2001).
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due to his membership in the opposing Mochrenha Party. Specifically, Jacques
claimed that on September 25, 2001 a group of Lavalas Party members approached
his tailor shop, that he escaped through the shop’s rear entrance and then fled the
country. Jacques spent several months in Argentina before entering the United States.
While in Argentina, Jacques’s father reported the incident at the tailor shop to a
justice of the peace, who then prepared a report regarding the incident. Jacques
further alleged that Lavalas supporters shot his father twice, breaking his leg.
The IJ denied asylum relief, finding that Jacques’s testimony lacked credibility,
as there were numerous inconsistencies between his hearing testimony and his prior
statements to the INS. Specifically, the IJ noted the following: (1) While Jacques
testified at his hearing that the incident at his tailor shop occurred on September 25,
2001, in prior statements and reports, he had variously given the date as September
26 or September 23. At his hearing, Jacques argued that the September 25 and 26
discrepancy resulted from a translation problem. (2) Although Jacques testified that
he was a tailor and owned a tailor shop, he previously had given an asylum officer a
statement indicating that he was a bank teller. (3) Jacques testified that he was able
to escape through the rear exit of his tailor shop as the Lavalas members approached.
However, his Form I-589 indicates that he was not present when the incident at his
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shop took place.2 (4) Jacques testified that he was both a member and a delegate of
the Mochrenha Party; he indicated both in the Form I-589 and also in a statement to
an asylum officer, however, that he was only a member of the party. (5) Whereas
Jacques testified before the IJ that his entire family were members of Mochrenha, he
had indicated in a prior statement that no other family members were part of
Mochrenha. (6) Jacques submitted a letter from the Mochrenha Movement indicating
that he was appointed as a delegate to the legislative elctions of May 21st, 2000. He
indicated on the Form I-589, however, that he did not join Mochrenha until
September 2000. Moreover, Jacques indicated in yet another statement that he joined
the party in February 1999. (7) Although Jacques testified that his father reported the
incident at his tailor shop to a justice of the peace several months after it occurred, the
Justice of the Peace Report indicates that Jacques himself reported the incident on
September 26, 2001. Jacques explained at his hearing that his father had made the
report to the Justice of the Peace in his name, but the IJ did not find this credible, as
there was no reason for the Justice of the Peace to make it sound as though Jacques
himself had reported the incident. (8) Finally, the IJ noted that although Jacques
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Furthermore, though not mentioned by the IJ, interview notes from Jacques’s February 8
interview indicate that he stated that the Lavalas members who attacked his shop also gave him
“a couple blows.” In the same interview Jacques apparently stated that the Lavalas members said
“they were beating [him] because [he] was a Mocherana [sic].”
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testified at his hearing that he had not been granted asylum by Argentina, a prior
statement submitted by him indicates that Argentina had granted him asylum on
November 7, 2001. Jacques attempted to excuse this discrepancy by explaining that
he had obtained an extension of his stay in Argentina.
Based on the aforementioned inconsistencies, the IJ found that Jacques’s
testimony was not credible. Jacques appealed that finding to the BIA, which then
dismissed Jacques’s appeal. The BIA adopted the IJ’s adverse credibility findings;
however, the Board also found that even if Jacques testimony had been credible,
Jacques failed to meet his burden of proof. Jacques now petitions this Court for
review.
II. Standard of Review
We review the IJ’s findings of fact under the substantial-evidence test, and we
must affirm the decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Antipova v. United States Att’y Gen.,
392 F.3d 1259, 1261 (11th Cir. 2004) (quotations omitted). “To reverse the IJ’s fact
findings, we must find that the record not only supports reversal, but compels it.”
Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). We also
review the IJ’s credibility determinations under the “substantial evidence” test, and
we may not substitute our judgment for that of the IJ. D-Muhumed v. U.S. Attorney
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Gen., 388 F.3d 814, 818 (11th Cir. 2004).3 When the BIA issues a separate decision,
we review only that decision, “except to the extent that [the BIA] expressly adopts the
IJ’s opinion.” Reyes-Sanchez v. United States Att'y Gen., 369 F.3d 1239, 1242 (11th
Cir. 2004). When, as here, “the Board adopts the IJ’s reasoning, [this Court] review[s]
the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001).
III. Discussion
An alien may obtain asylum if he is “refugee,” meaning that he is unwilling to
return to his country of nationality “because of persecution or a well-founded fear of
persecution on account of,” among other things, his political opinion. 8 U.S.C. §§
1101(a)(42)(A), 1158(a)(1), (b)(1). The asylum applicant bears the burden of proving
statutory “refugee” status with specific and credible evidence. Al Najjar, 257 F.3d at
1284, 1287. A court may deny asylum on the basis of an adverse credibility
determination alone. See Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1287 (11th
Cir. 2005).
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The REAL ID Act of 2005 amended credibility determinations, adding INA §§
208(b)(3)(B)(iii), 240(c)(4)(C), 8 U.S.C. §§ 1158(b)(3)(B)(iii), 1229a(c)(4)(C). Section 101(a)(3)
and (d), Pub.L. No. 109-13, 119 Stat. 231, 303, 304-05. The Act states that these provisions
“shall apply to applications for asylum, withholding, or other relief from removal made on or
after” the date of enactment of the act, May 11, 2005, so the provisions do not affect this appeal.
Pub.L. No. 109-13, 119 Stat. at 305.
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Because many material inconsistencies exist between Jacques’s hearing
testimony and his other statements, substantial evidence supports the IJ's adverse
credibility determination in this case. The IJ’s adverse credibility determination
merits deference, for he stated specific, cogent reasons for his finding. See Forgue,
401 F.3d at 1287. Accordingly, we DENY Jacques’s petition for review.
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