Gebresadik v. Holder ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 2, 2009
No. 08-60844
Summary Calendar Charles R. Fulbruge III
Clerk
LULIT GEBRESADIK,
Petitioner
v.
ERIC H. HOLDER, JR., U S ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 932 882
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Lulit Gebresadik, a native and citizen of Eritrea, petitions this court for
a review of a decision by the Board of Immigration Appeals (BIA) dismissing her
appeal of the immigration judge’s (IJ’s) order denying her application for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
The IJ denied Gebresadik’s application after finding that she was not a credible
witness. Alternatively, the IJ ruled that even if Gebresadik’s testimony were
credible, she had not demonstrated eligibility for relief. The BIA upheld the IJ’s
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60844
adverse credibility determination and affirmed the IJ’s decision ordering
Gebresadik’s removal.
Gebresadik argues that the IJ’s adverse credibility determination was not
supported by substantial evidence. She challenges the IJ’s finding that her
asylum interview and hearing testimony were inconsistent concerning the
beatings that she testified that she underwent while she was in prison in
Eritrea. She also challenges the IJ’s determinations that it was implausible that
(1) she received six months of noncombat training merely to be a “domestic,”
(2) guards who were friends risked repercussions by helping her to escape the
prison, and (3) a friend gave her $16,000 to be smuggled from South Africa to the
United States. Additionally, she challenges the IJ’s inclusion of her failure to
provide sufficient corroboration in his reasons for determining that she was not
credible because corroboration concerns only the burden of proof and is
analytically distinct from the issue of credibility.
Because Gebresadik filed her application for relief in 2007, this case is
governed by the standards set forth in the REAL ID Act for evaluating witness
credibility in asylum and withholding of removal cases. See 8 U.S.C.
§ 1158(b)(1)(B)(ii), (iii); REAL ID Act § 101, Pub. L. 109-13, 119 Stat. 231, 302-05
(May 11, 2005). “[I]t is the factfinder’s duty to make determinations based on
the credibility of the witnesses,” and “[w]e cannot substitute our judgment for
that of the BIA or IJ with respect to . . . factual findings based on credibility
determinations.” Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). A credibility
finding is a finding of fact that is reviewed for substantial evidence. See Vidal
v. Gonzales, 491 F.3d 250, 254 (5th Cir. 2007). Under substantial evidence
review, we may not reverse a finding unless the evidence compels it. INS v.
Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
Gebresadik has not shown that the evidence was so compelling that no
reasonable factfinder could conclude against the IJ’s credibility determination.
The IJ’s determination that it was implausible that Gebresadik’s prison guard
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No. 08-60844
friends who believed she was innocent and who did not want to see her suffer
would have risked persecution in helping her to escape is questionable, and it is
arguable whether the IJ misspoke when stating that lack of corroborating
evidence further impeached her credibility. See § 1158 (b)(1)(B)(ii). However,
the IJ’s additional findings concerning the inconsistencies in Gebresadik’s
accounts concerning whether she was beaten while in prison and her implausible
assertions concerning her training to be a secretary and her friend’s payment of
$16,000 to smuggle her to the United States from South Africa suffice to support
the IJ’s finding that she was not a credible witness. Considering the totality of
the circumstances, the evidence in this case does not compel reversal of the IJ’s
adverse credibility determination. See Elias-Zacarias, 502 U.S. at 483-84; see
also § 1158(b)(1)(B)(iii) (specifying criteria for BIA’s credibility determination).
The denial of relief in this case was based on the factual finding that Gebresadik
failed to provide a plausible claim, and the adverse credibility determination was
supported by substantial evidence. We may not substitute our judgment for that
of the BIA. Chun, 40 F.3d at 78.
Gebresadik also argues that the IJ erred in stating that the REAL ID Act
required corroboration of a credible asylum claimant’s account. However,
because the IJ’s adverse credibility determination was supported by substantial
evidence, the issue whether a credible asylum applicant’s account requires
corroboration is irrelevant.
Because the IJ’s adverse credibility determination is supported by
substantial evidence, we need not address Gebresadik’s argument challenging
the IJ’s and BIA’s determination that there was a lack of a nexus between the
harm and fears she endured and a protected asylum ground. See Chun, 40 F.3d
at 79. Accordingly, Gebresadik’s petition for review is DENIED.
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