Bella v. Atty Gen USA , 157 F. App'x 522 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-13-2005
Bella v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3889
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3889
MARTIN MAHN BELLA
Petitioner
v.
* ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES
Respondent
* Substituted pursuant to Fed. R. App. P. 43(c).
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A78-495-290)
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 6, 2005
Before: RENDELL, FISHER, and VAN ANTWERPEN, Circuit Judges.
(Filed December 13, 2005)
____
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Petitioner Martin Bella, a native and citizen of Liberia, seeks review of the decision
of the Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration Judge
(“IJ”) of his application for asylum, withholding of removal, protection under the Convention
Against Torture (“CAT”), and voluntary departure. The BIA had jurisdiction pursuant to 8
C.F.R. § 1003.1. This Court has jurisdiction over the petition for review pursuant to 8 U.S.C.
§ 1252(a)(1). For the reasons set forth below, we will grant the petition for review and
remand the case for rehearing.
I.
Because we write solely for the benefit of the parties, we state the facts only as they
pertain to our analysis. Where the IJ’s adverse credibility determinations rely on specific
facts, they will be set forth in turn in the relevant analysis.
Martin Bella, a native and citizen of Liberia, entered the United States in New York
City on July 11, 2000, using a B-2 visitor visa issued for the purpose of attending a religious
conference. Bella overstayed his visa and filed an application for asylum a year later on July
10, 2001. Bella conceded removability and appeared before the IJ on November 14, 2002,
for a hearing. Bella testified that while a student at the University of Liberia, he was a
member and leader of various student political parties which publicly opposed the
government of Charles Taylor. As a result of these actions, Bella alleged that he was
threatened, imprisoned, beaten several times, and tortured. Bella’s family also allegedly
suffered persecution: his brother, a member of the armed forces, was beheaded by other
soldiers; his uncle, also a soldier, was killed on Charles Taylor’s orders; and another of
2
Bella’s brothers was mistakenly arrested by soldiers who believed he was Bella.
In an oral decision dated January 13, 2003, the IJ denied Bella’s applications for
asylum, withholding of removal, protection under the CAT, and voluntary departure. The
IJ made over a dozen adverse credibility findings based on alleged discrepancies between
Bella’s testimony and his written affidavit, as well as an overall demeanor finding. The IJ
rested his decision solely on his credibility determinations, and did not address the merits of
Bella’s claim of past persecution or his alternative claim of a well-founded fear of future
persecution. To his credit the IJ did, we note, correctly state the law applicable to asylum,
withholding, and CAT claims. Bella timely filed an appeal with the BIA, challenging the IJ’s
credibility determination as unsupported by substantial evidence. The BIA dismissed his
appeal in an Order dated September 3, 2004. In affirming, the BIA relied solely on but one
of the IJ’s adverse credibility findings – regarding the correct name of Bella’s deceased
brother – and accorded complete deference to the IJ’s demeanor finding. Bella then filed this
timely petition for review, along with a motion to stay deportation. On December 22, 2004,
a panel of this Court granted that motion.
II.
Bella challenges the IJ’s adverse credibility determination as unsupported by
substantial evidence. Where the BIA substantially uses the IJ’s findings, but also makes
findings of its own, we review both decisions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.
2004). Findings of fact, including adverse credibility determinations, are reviewed under the
3
substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002). Such determinations are upheld unless a “reasonable adjudicator
would be compelled to conclude to the contrary,” considering the totality of the
circumstances. Gao, 299 F.3d at 272 (quoting 8 U.S.C. § 1252(b)(4)(B)). “Adverse
credibility determinations based on speculation or conjecture, rather than on evidence in the
record, are reversible.” Id.III.
Bella has the burden to prove, through credible evidence, either past persecution or
a well-founded fear of future persecution on account of a statutorily protected ground,
including, inter alia, religion, social group membership, or political opinion. 8 U.S.C. §
1101(a)(42)(A). Upon proving past persecution, Bella is “presumed to have a well-founded
fear of persecution on the basis of the original claim.” 8 C.F.R. § 208.13(b)(1). This
presumption can be rebutted by evidence of changed country circumstances or ability to
relocate to a different part of Liberia. 8 C.F.R. § 208.13(b)(1)(I). The IJ’s adverse credibility
determination must involve the “heart of the asylum claim.” Gao, 299 F.3d at 272.1
An IJ “must state a reason and detail with specificity the issues of non-credibility.”
Id. at 275. Conclusions must be based on “specific, cogent reason[s].” Dia v. Ashcroft, 353
1
Bella’s asylum claim was submitted in 2001, well before the effective date of the
Real ID Act, and therefore is not subject to a new provision allowing an IJ to rely on
inconsistencies “without regard” to whether they go to the heart of the asylum claim. Real
ID Act of 2005, § 101(a)(3), Pub. L. No. 109-13, 119 Stat. 231, 303, codified at 8 U.S.C. §
1158(b)(1)(B)(iii).
4
F.3d 228, 250 (3d Cir. 2003). We have “cautioned against placing too much weight on
inconsistencies between an asylum affidavit and subsequent testimony.” Zubeda v. Ashcroft,
333 F.3d 463, 476 (3d Cir. 2003).
Here, the IJ identified over a dozen areas of testimony which, he asserted, supported
his adverse credibility determination against Bella. The BIA, on appeal, appears to have
rested on only two of these: 1) Bella’s confusion of his brother’s name with his cousin’s; and
2) the IJ’s finding that Bella’s demeanor was that of an “actor reciting his rehearsed lines,”
in that he allegedly adhered very closely to his affidavit. Because we must review both
orders, we will address all of the findings in turn, but with special attention to the two relied
upon by the BIA.
For the reasons set forth below, we conclude that the IJ paid insufficient attention to
the record, ignored submitted evidence and physical burns, and selectively used Bella’s
testimony in making the adverse credibility determination.2 Many inconsistencies did not go
2
While Bella did not bring a Due Process challenge, we take this opportunity to note
several troubling aspects of his hearing. The IJ often jumped in and prevented Bella’s
counsel from continuing with his direct examination, and then prohibited counsel from re-
questioning on those subjects. See, e.g., Appendix at *26; id. at *34-35; id. at *41; id. at *36
(Judge: “Would counsel – don’t interpret me please.”); id. at *52 (preventing counsel from
asking a question to clarify Bella’s answer to an IJ question). The IJ also frequently took
over the INS’s cross-examination of Bella. Appendix at *82-84; id. at *95; id. at *108.
Without admitting a newspaper article into evidence, the IJ proceeded to question – without
any support from the record or country conditions – the article’s veracity. See Appendix at
*25; id. at *116-119. Most troubling, after chastising Bella’s counsel for allegedly leading
Bella – by asking merely whether a Liberian phrase had meaning to him, Appendix at *48-49
– the IJ stated in the middle of his hearing that “the testimony his [Bella’s] testimony is
worthless.” Appendix at *51.
5
to the “heart” of Bella’s claim of past persecution which, if proven, absent the adverse
credibility determination would have entitled him to a presumption of fear of future
persecution. After a review of the record, for these reasons we cannot say that the IJ’s
adverse credibility finding was supported by substantial evidence; we are “compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
A. Bella’s Uncle
Bella testified that after learning of the murder of his brother, he fled to live with his
uncle, Cooper Teah, a soldier in Charles Taylor’s army who was later killed by other soldiers
on Taylor’s orders. The IJ found a “contradiction” because Bella testified that Teah was his
mother’s brother, while in his affidavit he allegedly stated that Teah was his father’s brother.
IJ Order at *6. The IJ misread Bella’s affidavit and ignored record evidence. Specifically,
the IJ ignored a second, corrected affidavit, which was explicitly presented to the IJ and
submitted into evidence, Appendix at *7-8, which amended Bella’s affidavit to reflect the
fact that Teah was his mother’s brother. Bella’s testimony was completely consistent with
this corrected affidavit. The IJ’s claimed contradiction is based only on the first, uncorrected
affidavit, and did not ever acknowledge in findings that a corrected affidavit existed and
cleared up the issue. Review of the record thus confirms that there was no inconsistency
upon which the IJ could rely.
B. Detention with Jack the Rebel
Bella testified that in one of the many times he was arrested and detained he was
6
arrested at a checkpoint and taken to a building to be interrogated and tortured by George
Duanah, a former college acquaintance now known as Jack the Rebel. Appendix at *59-62.
Bella alleged he was held for two weeks, interrogated, and tortured. Specifically, he alleged
he was burned, and he showed the IJ supporting scars – which the IJ failed to mention in his
findings. Appendix at *61-65. At the end of the two weeks, a member of the army who had
been a friend of Cooper Teah convinced Bella’s captors to release him to her for further
investigation. She then released him completely after several days. Appendix at *66-68.
The IJ made several adverse credibility determinations as a result of this testimony.
First, the IJ found that Bella’s testimony about where he was held differed from his affidavit.
Bella’s affidavit stated that he was taken to “jail.” Affidavit at ¶ 17. According to the IJ,
Bella testified that he was taken instead to an abandoned building. IJ Order at *7. An
inspection of the transcript of the hearing, however, reveals that the IJ cut off Bella’s
attempted response to the question, and then completely ignored Bella’s actual answer.
Question (Counsel): Where is it that they took you in Congo Town?
Answer (Bella): Congo Town it was an abandoned building that they were using as
–
Question (Judge): Burned out building?
...
Question (Judge): Abandoned building?
Answer (Bella): Yeah. They were using that as some headquarter and detention
center, and I was taken there.
Appendix at *61 (emphases added). Bella’s testimony about a detention center differs in no
material way from his affidavit, as the IJ could have plainly heard from the testimony itself,
and seen upon review of the transcript. There was no inconsistency.
7
Next, the IJ made an adverse credibility finding based on supposed inconsistencies in
Bella’s story regarding how long he was kept without food and water. IJ Order at *8.
According to the IJ, Bella testified that he was held for two weeks without food or water, but
had said in his affidavit that he was given water after five days. Id. Bella’s affidavit stated
that he was “given his own urine to drink several times”; around the fifth day, he was given
water, and fed at some point in the second week. Affidavit at ¶ 18. The transcript shows that
Bella testified that he was given his urine to drink, and “about five days there was no food.”
Appendix at *65. Bella’s testimony did not explicitly contradict his affidavit regarding how
long he went without water, given that it did not mention a time duration. After review of
the record, we cannot find a material inconsistency on which the IJ could rely.
Third, the IJ found it “implausible” that another member of the army could have
obtained Bella’s release to her control. IJ Order at *8. Here, the IJ did not find any
inconsistencies in Bella’s testimony on this point, nor could he have given the record. The
IJ supplied no reasons why he found this averment and testimony implausible, beyond stating
that Bella was “well known to be against the Charles Taylor government and was an
individual that the Taylor government wished to keep control over.” Id. This determination
was “not made against the background of the general country conditions,” Dia, 353 F.3d at
249, nor was it grounded in the record. “By requiring the IJ to tether a plausibility
determination to evidence in the record, including evidence of country conditions or other
contextual features, and rejecting speculative or conjectural reasoning, we ensure that there
8
is a reasoned foundation to support the conclusion that the witness’s testimony was
objectively implausible.” Jishiashvili v. Att’y Gen. of the United States, 402 F.3d 386, 393
(3d Cir. 2005).
Further, nowhere in his Order did the IJ discuss the content of the submitted country
reports and numerous Liberian newspaper articles. The IJ made no findings on why, in light
of the chaotic conditions in Liberia at the time, it would be implausible for a prisoner merely
to be transferred from one group of soldiers to another soldier in the same army. At the
same time, the IJ did not express any doubt about the many other times Bella testified and
averred that he had been arrested, then released with little or no explanation after being held
for days. In light of these other incidents, the IJ’s unsupported fixation on the alleged
implausibility of an intra-army transfer can only be based on “speculation or conjecture.”
Gao, 299 F.2d at 272.
Fourth, the IJ found an inconsistency regarding how long Bella stayed at a friend’s
house after being released by his uncle’s army friend. Bella’s affidavit stated that he left his
friend’s house at the “end of December.” Affidavit at ¶ 21. According to the IJ, Bella
testified that he stayed for only one and a half months, which according to the IJ’s
calculations, meant he left in mid-November. IJ Order at *8. In so reasoning, the IJ wholly
ignored Bella’s testimony:
Question (Counsel): How long a period of time?
Answer (Bella): I stay there pretty close to a month and a half or more.
Question (Counsel): Okay. So at some time you left?
Answer (Bella): I left yes in December . . . .
9
Appendix at *69 (emphases added). Bella indicated that he spent at least a month and a half
at his friend’s house, and that he left in December–each of which is fully consistent with his
affidavit. Plainly, there was no inconsistency here.
Finally, we must again observe that despite fixating on so many supposed
inconsistencies in Bella’s account of his captivity, the IJ shockingly failed to mention in his
findings that, after Bella stated in his affidavit that he was burned on his “left elbow and right
shin,” Affidavit at ¶ 19, Bella showed the IJ, on the record in open court, scars on his left
elbow and right shin. Appendix at *63-64. During the hearing the IJ failed to raise any
doubt as to the scars’ origin or identity as burn wounds. Id. We do not see how the IJ could
have utterly ignored this extremely credibly corroborative evidence while quibbling over
dates.
C. Honorary Degree Protest
Bella testified that in 1999, the Student Unification Party – of which he was a leader
– found out that the University was planning on conferring an honorary degree on Charles
Taylor. Appendix at *70. The party told the university that it opposed the plan. Two days
later, Bella alleged he was beaten by several men in a car. Appendix at *70-71. The IJ found
it incredible that “after escaping from jail this respondent would expose himself again to
being arrested by participating in a protest.” IJ Order at *9. Here again, this finding
mischaracterizes, and is otherwise unsupported by, the record. To the extent the IJ stated
that, after a person is arrested once, any future public appearances which result in arrests or
10
beatings are necessarily fictitious on the theory that no one, regardless of how strong they
feel about their political or religious beliefs, would risk being arrested again, such statements
are improper speculation. The IJ cites no record evidence, nor any evidence regarding
country conditions, to support his assumption. Moreover, the IJ mischaracterizes the record,
which in no way shows that Bella “escap[ed]” from jail. To the contrary, Bella testified that
he was transferred from one group of army personnel to another. See supra Part III.B. The
IJ also failed to mention Bella’s plausible explanation of why he would continue to protest
the Taylor government despite his past arrests. Bella testified that “[o]nce you are part of a
group that became opposition to Mr. Taylor . . . you became a target. . . . [O]nce I was
involved for the first time in anything critical of the government they came after you.”
Appendix at *74-75. The IJ failed to cite anything in the record to support his speculation
that political dissidents in Liberia would go into permanent hiding after an arrest.
Next, the IJ found it not credible that Bella would only have been beaten instead of
rearrested after he had “escaped from custody.” IJ Order at *9. This finding is also
unsupported by the record evidence. Bella testified only that he was beaten by “men [who]
came out of a car.” Appendix at *71. The IJ alone appears to have jumped to the conclusion
that these men were police and were aware of something more than that Bella was involved
in a protest. This was improper speculation. As noted above, the IJ also again
mischaracterizes the record by concluding that Bella “escaped” from jail. We find that
neither of the IJ’s conclusions and speculations regarding this incident were supported by the
11
record.
D. Bella’s Business Activities
The IJ next found it incredible that Bella would have helped to run two businesses “in
an open fashion” instead of “stay[ing] in hiding and not ventur[ing] into public venues.” IJ
Order at *10. The IJ also noted several variations in Bella’s account of the dates during
which he operated the businesses. IJ Order at *9. We have the same problem with these
conclusions as those above regarding the IJ’s discrediting of testimony of Bella’s beating
after a protest. See supra Part III.C. The IJ cites absolutely no record evidence to support
his conclusion, and ignores record evidence to the contrary. In any event, regarding any date
variations, we fail to see how these minor discrepancies regarding businesses – which Bella’s
wife primarily ran – can possibly go to the heart of Bella’s claim. “Minor inconsistencies in
the record such as discrepancies in dates which reveal nothing about an asylum applicant’s
fear for his safety are not an adequate basis for an adverse credibility finding.” Senathirajah
v. INS, 157 F.3d 210, 221 (3d Cir. 1998) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137,
1141 (9th Cir. 1988)).
E. Allegedly Murdered Brother
Bella testified that many of his family members had been killed while in Liberia. He
testified that one of his brothers had been killed by other soldiers while in the army, and that
his brother’s beheaded body, along with the bodies of others, were found in the street
sometime in May, 1990. Bella also testified, and averred in his affidavit, that two of his
12
cousins, named Thomas and Moses, had been killed. Affidavit at ¶ 9.
The IJ faulted Bella for allegedly not including his deceased brother in his asylum
application. IJ Order at *5. However, the IJ explicitly stated that he was only looking at the
question which asked for Bella’s political associations, as well as those of his family. Id.In so doing, the IJ ignored Bella’s answer to the very next application question, which asked
Bella whether he or “any member of [his] family [had] ever been mistreated or threatened
by the authorities” of Liberia. Bella responded in the affirmative, and referred the reader to
the “accompanying Affidavit for specific incidents, Circumstances, dates, locations, etc.”
Asylum App. at *5. The attached affidavit clearly described Beh’s death at Affidavit ¶ 6.
Bella’s undisputed placement of his answer in a properly attached affidavit cannot be a valid
basis for an adverse credibility finding.
Bella’s affidavit identified his murdered brother as Beh. Affidavit at ¶ 6. In his direct
testimony, Bella named Thomas as his brother, then corrected himself when the error was
brought to his attention by his counsel. Appendix at *18. On these facts, the IJ found it
“absolutely incredible and absolutely implausible . . . that the respondent would forget his
brother’s name.” IJ Order at *5. The BIA subsequently affirmed, finding that Bella had not
sufficiently explained his mistake.
The record supports neither conclusion. Instead, it shows that the IJ repeatedly cut
Bella off when he attempted to point out, consistent with his affidavit and asylum
application, that he had a cousin named Thomas who had also been killed. See, e.g.,
13
Appendix at *19-20; id. at *78-79. Ignoring the record evidence that Bella did have a cousin
named Thomas, the IJ fixated on the fact that Bella had no brother named Thomas, Appendix
at *20 – even though Bella had plainly and consistently averred and testified that both had
been killed for statutorily relevant reasons. Under these circumstances, we fail to see how
the IJ and BIA may criticize Bella for failing to explain his mistake, while simultaneously
preventing him from giving that explanation and ignoring the record evidence explaining the
mistake. We also find that the inconsistency cannot be said to go to the “heart” of Bella’s
claim of past persecution which, if proven, would entitle him to a presumption of a well-
founded fear of future persecution.
F. Demeanor Finding
The IJ concluded with a finding that Bella’s demeanor was “more like an actor
reciting his rehearsed lines than that of a witness testifying from memory. The respondent’s
testimony was almost a word for word reflection of his affidavit with practically no deviation
from the written word.” IJ Order at *10-11. The IJ also stated that Bella was “rambling on
reciting the contents of his affidavit.” IJ Order at *11. As we have noted in the past, the IJ
was entitled to rely on demeanor in making an adverse credibility finding. See, e.g., Dia, 353
F.3d at 252 & n.23. The BIA accorded complete deference to this finding without inquiry
into its record support. However, the IJ cannot insulate a “demeanor” finding from review
without supporting it with reasons grounded in the record, which the IJ made no attempt to
do here. IJ Order at *10-11. More fundamentally, the IJ simultaneously faults Bella for
14
testifying contrary to his written affidavit in a dozen ways, yet made a contradictory
“demeanor” finding that Bella failed to deviate enough from that same affidavit. Both cannot
be true.
Examination of Bella’s testimony shows that he testified consistently with his
affidavit. He elaborated on matters in the affidavit to explain their context, and as such can
hardly be said to have repeated it word for word in all respects. Bella can scarcely be faulted
for remembering details of inherently memorable events – specifically a physical threat made
to him – in the same words between his affidavit and testimony. See Appendix at *43-45.
Similarly, where the IJ criticized Bella for “rambling,” the record instead shows that the IJ
repeatedly cut off Bella’s attempts to explain, consistent with his affidavit, the background
of his political affiliations and the background of various protests that led to persecution
events. See, e.g., Appendix at *41 (Judge: “Rather than going on and on, and on about facts
that don’t really concern me . . . .”); c.f. Iliev v. INS, 127 F.3d 638 (7th Cir. 1997)
(describing the type of conduct by an IJ which might lead to the denial of a full and fair
hearing). Where the IJ insisted on taking over Bella’s counsel’s questioning and limited
Bella to yes or no answers, see, e.g., Appendix at *41-42, and further prevented Bella from
elaborating on the affidavit, we fail to see how the IJ can also criticize Bella for adhering too
closely to his affidavit.
IV.
In sum, the IJ relied solely on his adverse credibility finding in denying Bella’s claims
15
for asylum and withholding of removal, as did the BIA in dismissing Bella’s appeal. For the
foregoing reasons, we conclude that these adverse credibility determinations were not
supported by substantial evidence.3 While the IJ correctly stated the law of asylum,
withholding, and CAT protection, the IJ did not reach those points of law. We will grant the
petition for review, vacate the IJ and BIA’s Orders in full and remand this case for rehearing.
Finally, we note that the IJ failed to give any indication that his denial of Bella’s CAT claim
was based on anything other than his adverse credibility determination. This was error, as
“credibility for purposes of establishing . . . asylum and withholding of deportation claims
does not defeat [an alien’s] ability to meet [his] burden of proof under the Convention
Against Torture.” Zubeda, 333 F.3d at 476 (quotation marks omitted). Bella did present
evidence of torture at the hands of the Liberian government, which should be considered on
remand.
We have considered all other arguments made by the parties on appeal, and conclude
that they do not cause us to change our decision to remand.
3
We merely conclude that the IJ’s adverse credibility determinations were not
supported by substantial evidence. We do not reach the question of whether Bella was
credible or should be entitled to any of the relief sought. These are questions for remand.
Cao v. Att’y Gen. of the United States, 407 F.3d 146, 161 n.4 (3d Cir. 2005).
16