Shewangizaw Worku v. Loretta Lynch ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2446
SHEWANGIZAW AYELE WORKU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 16, 2015 Decided: October 20, 2015
Before KING, KEENAN, and FLOYD, Circuit Judges.
Petition for review denied by unpublished opinion. Judge Keenan
wrote the opinion, in which Judge King and Judge Floyd joined.
ARGUED: Jason Alexander Dzubow, DZUBOW & PILCHER, PLLC,
Washington, D.C., for Petitioner. Surell Brady, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Stuart F. Delery, Assistant Attorney General, Civil
Division, Cindy Ferrier, Assistant Director, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENEN, Circuit Judge:
Shewangizaw Ayele Worku, a native and citizen of Ethiopia,
petitions for review of a decision of the Board of Immigration
Appeals (BIA) dismissing his appeal from an immigration judge’s
order denying his application for asylum. 1 In his petition,
Worku contends that the adverse credibility finding by the
immigration judge (IJ) was not supported by substantial
evidence, and, alternatively, that the testimony and affidavits
of Worku’s witnesses and his documentary evidence provided
sufficient independent evidence to support his claim of past
persecution. Upon our consideration of these arguments, we deny
Worku’s petition for review, because the agency’s determination
is supported by substantial evidence.
I.
Worku entered the United States in March 2006 after
receiving a “temporary B-2 visitor visa,” which authorized him
and his family 2 to stay in the United States until September
1
Worku also had sought withholding of removal and relief
from removal under the Convention Against Torture. However, the
IJ denied that relief, and the BIA concluded that Worku had
waived these claims. Because Worku does not challenge the BIA’s
conclusion of waiver, we address only Worku’s asylum request in
the present case.
2
Worku’s wife and daughter sought asylum as derivative
beneficiaries of Worku’s application, see 8 U.S.C. §
(Continued)
2
2006. In October 2006, Worku filed with the Department of
Homeland Security (DHS) an application for asylum, claiming that
he had been persecuted in Ethiopia because of his political
opinions involving the Oromo National Congress (ONC) 3 and because
of his Oromo ethnicity.
During an interview with a DHS asylum officer, Worku stated
that he left Ethiopia after he had been arrested, detained, and
tortured following an ONC demonstration. After reviewing the
asylum officer’s notes from that interview, Worku’s written
statement, and his supporting documents, DHS denied Worku’s
asylum request. DHS found that Worku’s statements were not
credible because he had provided insufficient details regarding
the substance of his application, and because the documents he
submitted did not supply clarifying facts. Based on Worku’s
continued presence in the United States beyond the period
1158(b)(3)(A). They are not named parties in this petition for
review.
3 According to the State Department, Oromo is “Ethiopia’s
largest ethnic group, representing approximately 40% of the
population.” Bureau of Democracy, Human Rights, and Labor, U.S.
Dep’t of State, Ethiopia Asylum Country Profile 4 (August 2007).
Yet, although the ONC is a “prominent Oromo political
organization[,] which won over 40 seats in the May 2005
elections[,] . . . ONC members were killed, jailed[,] and
harassed both prior to, and following, the 2005 elections.” Id.
3
authorized by his visa, DHS initiated removal proceedings
against Worku under 8 U.S.C. § 1227(a)(1)(B).
In proceedings before the IJ, Worku conceded that he was
removable but sought asylum on the ground that he had been
persecuted based on his political opinion and his Oromo
ethnicity. At a hearing, Worku testified that after he joined
the ONC as a university student, he “attended meetings,”
“distributed printed materials describing what the government
was doing to the Oromo people,” and “campaigned” to encourage
other students to join the group. Worku stated that during a
student ONC demonstration on April 18, 2001, Ethiopian police
officers fired gunshots, struck Worku in the head with a rifle,
and arrested him. Worku testified that he was detained in a
prison cell following this incident for a period of two weeks.
During Worku’s detention, officers allegedly interrogated
Worku about his Oromo ethnicity, his membership in the ONC, and
his distribution of leaflets before the student demonstration.
Worku stated that he was slapped, kicked, beaten severely with a
baton, and forced to crawl on sharp pebbles for “sport.” Worku
was released on May 3, 2001, after allegedly signing a document
stating that he would not participate in anti-government
activities.
According to Worku, he was not permitted to return to the
university, and he later observed two armed men following him
4
near his home. Fearing for his safety, Worku left Ethiopia and
entered Israel, where he ultimately was denied aslyum.
At the same hearing before the IJ, Worku presented
testimony and affidavits from his wife and three of his friends.
He also submitted a written statement from his father. Worku
additionally provided several documents purporting to support
his claim, including a letter from an ONC official confirming
Worku’s ONC party membership and a letter from an Ethiopian
government official stating that Worku is of Oromo ethnicity.
After the hearing, the IJ concluded that despite some
general corroboration of Worku’s testimony, Worku was not a
credible witness. The IJ cited certain inconsistencies and
omissions based on her comparison of Worku’s hearing testimony
with his earlier interview with the asylum officer. The IJ also
noted her adverse perception of Worku’s demeanor and his “non-
responsive answers” during the hearing. The IJ therefore denied
Worku’s claim for asylum.
Worku appealed from the IJ’s decision to the BIA, which
vacated the IJ’s decision and remanded the case for a
determination whether other evidence adequately addressed the
IJ’s concerns regarding Worku’s testimony about his detention
and mistreatment. On remand, the IJ renewed her adverse
credibility finding and explained that the affidavits and
testimony of Worku’s friends and relatives were not persuasive,
5
because those individuals were interested parties and their
statements did not alleviate the IJ’s concerns regarding Worku’s
demeanor and non-responsive answers. The IJ also explained that
neither the witnesses’ general statements nor the documentary
evidence resolved some inconsistencies she found when comparing
Worku’s statement made to the asylum officer with his testimony
regarding the details of his detention.
Worku again appealed to the BIA, which upheld the IJ’s
adverse credibility determination and dismissed the appeal.
Worku filed a timely petition in this Court seeking review of
the BIA’s decision, pursuant to our jurisdiction under 8 U.S.C.
§ 1252(a)(1).
II.
A.
Because the BIA’s decision relied on, and incorporated,
some of the factual findings set forth in the IJ’s decision, we
review both decisions as necessary to address Worku’s arguments.
See Martinez v. Holder, 740 F.3d 902, 908 n.1 (4th Cir. 2014).
We must uphold the agency’s determination unless it is
“manifestly contrary to the law and an abuse of discretion.”
Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011) (citation
omitted). “The agency abuses its discretion if it fails to
offer a reasoned explanation for its decision, or if it distorts
6
or disregards important aspects of the applicant’s claim.” Id.(citation and internal quotation marks omitted).
B.
Worku contends that the BIA erred in dismissing his appeal
requesting asylum relief. He asserts that the IJ’s adverse
credibility finding was not supported by substantial evidence.
According to Worku, the alleged inconsistencies on which the IJ
relied were not actual discrepancies but were clarifications of
Worku’s previous statements. Worku also argues that the
statements and testimony of his friends and relatives, and the
documentary evidence submitted, independently supported his
claim of past persecution. We disagree with Worku’s position.
Under 8 U.S.C. § 1158(b), the Attorney General has
discretion to admit into the United States an asylum applicant
if the applicant first establishes that he is a “refugee.” A
“refugee” is defined as a person who is “unable or unwilling” to
return to his native country because of “persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” Id. § 1101(a)(42) (emphasis added).
When an applicant establishes that he has suffered past
persecution, a rebuttable presumption arises that he has the
requisite level of fear of persecution. See 8 C.F.R.
§ 208.13(b)(1). If the applicant cannot establish past
7
persecution, he must prove both the subjective and objective
components of fear of persecution, namely, “that the applicant
is subjectively afraid and that the fear is objectively well-
founded.” Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004)
(emphasis omitted).
An applicant’s testimony alone may satisfy this burden, but
only when that testimony is credible, persuasive, and refers to
specific evidence demonstrating that the applicant qualifies as
a refugee. 8 U.S.C. § 1158(b)(1)(B)(ii). “[A] determination
that the applicant’s testimony is not credible will generally
defeat” a claim for relief from removal, Camara, 378 F.3d at
369, unless the applicant can establish his eligibility with
evidence that is independent of the discredited testimony, see
Tassi v. Holder, 660 F.3d 710, 725-26 (4th Cir. 2011).
Our review of an agency’s adverse credibility determination
is “narrow and deferential,” and is limited to our consideration
whether that determination is supported by “substantial
evidence.” Djadjou, 662 F.3d at 273; Hui Pan v. Holder, 737
F.3d 921, 926 (4th Cir. 2012). Under this standard, we will
reverse the agency’s decision only when a “reasonable
adjudicator would be compelled” to reach a different result.
Hui Pan, 737 F.3d at 926.
After reviewing the record, we conclude that substantial
evidence supports the agency’s adverse credibility
8
determination. The IJ and the BIA identified several
differences between the statements Worku made to the asylum
officer and his hearing testimony concerning the events
surrounding his arrest and two-week detention. Those
differences included the fact that Worku had testified that he
had distributed ONC leaflets, but had failed to inform the
asylum officer about this particular conduct. Worku also
provided inconsistent statements regarding the number of times
he was interrogated, the number of people in the room when he
was interrogated, and the time period during his detention when
he was forced to crawl on gravel. Although a reasonable
factfinder could categorize these factual differences as minor
discrepancies, the differences are not so insignificant as to
compel us to conclude that Worku was credible.
Further supporting the adverse credibility finding was the
IJ’s observation that Worku was not responsive to certain
questions, and that he appeared to testify from a “script.” We
accord substantial deference to this finding based on the IJ’s
unique role in observing Worku’s demeanor, a critical factor in
evaluating truthfulness. See Huang v. Holder, 744 F.3d 1149,
1153 (9th Cir. 2014) (noting that the “need for deference is
particularly strong in the context of demeanor assessments”
because such determinations often will be “based on non-verbal
cues” that rarely “can be conveyed by a paper record of the
9
proceedings”). We therefore conclude that the IJ’s assessment
regarding Worku’s demeanor, together with the various
discrepancies evident from a comparison of Worku’s statement
before the asylum officer and his hearing testimony, constitute
substantial evidence to support the adverse credibility
determination. See Hui Pan, 737 F.3d at 926.
We also conclude that the BIA correctly determined that the
other evidence presented by Worku did not overcome the adverse
credibility finding regarding his claim of past persecution.
The testimony and statements from Worku’s friends and relatives
confirmed only that Worku was an ONC member, that he was
arrested during student demonstrations in April 2001, that he
returned home from the demonstrations with visible injuries, and
that he fled Ethiopia. This evidence does not directly
corroborate the allegation that Worku was persecuted because of
his political opinions or because of his Oromo ethnicity.
Furthermore, the BIA correctly concluded that because this
evidence came from friends and relatives of Worku who were
personally interested in the outcome of Worku’s claim, such
evidence properly was accorded less weight. See Gandziami-
Mickhou v. Gonzales, 445 F.3d 351, 358-59 (4th Cir. 2006)
(noting that petitioner’s proffered documents were not
“independent evidence” of past persecution because the
affidavits were from interested friends and family).
10
We also observe that the documentary evidence presented by
Worku did not directly link his alleged mistreatment to his
membership in the ONC or to his Oromo ethnicity. Instead, the
documents showed only that Worku had belonged to the ONC, that
some ONC members had been persecuted in the past, and that Worku
had sustained bodily injuries consistent with his self-reported
torture. We therefore conclude that the record independent of
Worku’s testimony was insufficient to overcome Worku’s adverse
credibility determination, and that Worku failed to prove his
claim of past persecution on account of his political beliefs,
his membership in a social group, or his race. See Camara, 378
F.3d at 370; Gandziami-Mickhou, 445 F.3d at 358-59.
III.
For these reasons, we deny Worku’s petition for review of
the BIA’s decision upholding the denial of his application for
asylum.
PETITION FOR REVIEW DENIED
11