Beganovic v. Ashcroft ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 5, 2004
Charles R. Fulbruge III
No. 03-60185 Clerk
ERNAD BEGANOVIC; SAFETA BEGANOVIC; JASMIN BEGANOVIC
Petitioners,
VERSUS
JOHN ASHCROFT, U.S. ATTORNEY GENERAL
Respondent.
Petition For Review of an Order
of the Board of Immigration Appeals
(A76 433 107)
Before BENAVIDES, STEWART and DENNIS Circuit Judges.
PER CURIAM:*
Petitioner Ernad Beganovic, his wife Safeta, and his son
Yasmin challenge the Board of Immigration’s (“BIA”) affirmance of
the Immigration Judge’s (“IJ”) denial of asylum. After carefully
reviewing the record, we deny the petition for review.
I. Background
In August 1997, the Beganovics, Albanians from Kosovo,
*
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opinion should not be published and is not precedent except under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.
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Serbia-Montenegro, entered the United States on visitors’ visas.
Six months later, the INS served them notice to appear charging
them as eligible for deportation for overstaying their visas. The
Beganovics then filed an asylum application.
In the asylum application, Ernad claimed that he was subject
to both past and future persecution due to his participation in
political activities with the Democratic Action Party (“PDA”), and
Democratic League of Kosovo (“LDK”). Ernad alleged mistreatment or
harassment by the Serbian police on five separate occasions because
of his political affiliation with those groups. In sum, the
allegations of fact in the asylum application are as follows:
A. First Incident
In October 1991, in his hometown of Pec, Ernad joined the SDA,
a secular party that advocated for the right of Albanians in Kosovo
as well as other Muslims throughout then-Yugoslavia. A month
later, a Serbian police officer arrested Ernad while Ernad was
hanging posters with some friends. The officer confiscated the
posters and took Ernad and his friends to the police station for
questioning. The young men were roughly treated by the police and
Ernad claims that he was beaten for roughly half an hour. When the
officers were finished asking questions, Ernad asked for the return
of his posters. In response, an officer punched Ernad in the face
and stomach and threatened worse if he caught Ernad again.
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B. Second Incident
In April 1992, Serbian police officers stepped up their
harassment of party members and arrested SDA’s regional president,
Balic. Balic was jailed for two days and was allegedly beaten. In
response to Balic’s arrest and the increasing police harassment of
party members, the SDA was disbanded and Balic fled the country.
C. Third Incident
In 1994, after marrying Safeta and fathering Yasmin, Ernad
joined LDK. He worked frequently for the party and became a
editorial writer for its newsletter. In the middle of the night on
February 3, 1996, Beganovic heard pounding on the door by three men
he suspected were police officers though the men wore no uniform.
When Ernad opened the door, one of the men, who was armed, attacked
him and began to beat him. The man put his foot on Ernad to hold
him down and at times dropped to his knee to punch Ernad in the
face. The other two men ransacked the apartment, yelling, “Where
are your guns? Where are your friends? Where’s your damned
paper?” One of the men threatened to throw Safeta and Yasmin off
of the apartment’s balcony if she and Yasmin did not quit
screaming. After beating Ernad sufficiently enough to leave welts
and bruises on his body and destroying most of the Beganovics’
possessions in the apartment, the men left.
D. Fourth Incident
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In June of 1996, four uniformed officers came to Ernad’s
apartment and took him to the police station. The police
questioned Ernad about LDK and its officers. When Ernad did not
give the officers any specific information, he was taken into a
dark room and beaten until he was unconscious. Ernad awoke and was
questioned a second time. After Ernad refused to sign a piece of
paper upon which he could not see what was written, Ernad was again
taken into the dark room and beaten until unconscious. Ernad awoke
near his apartment door on the 11th floor, but could not recall how
he got there. He knocked on the door and his wife Safeta helped
him inside. The Beganovics then abandoned their home to live with
Ernad’s parents who lived nearby.
E. Fifth Incident
Seven months later, in January 1997, while Ernad was out with
a friend, the police came looking for him at his parents’ home.
His wife testified that the officers had a menacing tone and when
informed that Ernad wasn’t there, said “We’ll find him.” After
this incident, the Beganovics moved to Novi Sad, and in August
1997, they fled to the United States.
F. The Hearing and the IJ’s decision
At the two-day asylum hearing before the IJ, the Beganovics
had five people testify in support of the asylum petition. They
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were: (1) Ernad; (2) Safeta; (3) Professor Reinhartz, a history
professor at University of Texas-Arlington; (4) Benin Sucheere, one
of Safeta’s cousins, and (5) Dennis Mala, an acquaintance of
Ernad’s from Kosovo. After the hearing, the IJ concluded that the
Beganovics had not carried their burden of persuasion on their
asylum petition because the testimony of Ernad and Safeta regarding
past persecution was incredible. The IJ made an alternative ruling
that even if he had found the Beganovics’ testimony credible, the
five incidents of harassment Ernad suffered did not rise to the
level of persecution. Finally, the IJ concluded that because of
changed country conditions in Kosovo, even if the five incidents of
harassment constituted persecution, the Beganovics failed to
establish a well-founded fear of future persecution. Accordingly,
the IJ denied all relief, except that he granted the Beganovics’
request for voluntary departure.
The Beganovics appealed the IJ’s findings to the BIA. The
Beganovics also asked to supplement the record with additional
material regarding conditions within the country as well as some
specific documentary evidence of medical treatment Ernad received
as a result of the June 1996 incident and that Ernad was still
wanted by the Serbian police. The BIA summarily denied all relief,
primarily relying on the adverse credibility determinations made by
the IJ. The BIA also denied the motion to supplement the record
because the additional materials would not have affected the
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outcome of the case. The Beganovics timely filed a petition for
review with this court challenging both the denial of asylum and
the BIA’s refusal to grant the Beganovics’ motion to supplement the
administrative record.
II. Analysis
“Any alien who is present in the United States or who arrives
in the United States,...irrespective of such alien’s status, may
apply for asylum.” 8 U.S.C. § 1158(a)(1). “The Attorney General
may grant asylum to an alien who has applied for asylum...if the
Attorney General determines that such alien is a refugee....” Id.at § 1158(b)(1). The term “refugee” includes “any person who is
outside of any country of such person’s nationality...and who is
unable or unwilling to avail himself or herself of the protection
of, that 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. at §
1101(a)(42)(A). “The applicant may qualify as a refugee because he
or she has suffered past persecution or because he or she has a
well-founded fear of future persecution.” See 8 C.F.R. § 208.13.
It is the alien who bears the burden of proof to show that he is a
“refugee” in order to be eligible for a grant of asylum. See 8
C.F.R. § 208.13.
In reviewing BIA decisions, we review factual findings for
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substantial evidence and questions of law de novo. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 44 (5th Cir. 2001). “The substantial
evidence standard requires only that the BIA’s decision be
supported by record evidence and be substantially reasonable.”
Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). We will
“accord deference to the BIA’s interpretation of immigration
statutes unless the record reveals compelling evidence that the
BIA’s interpretation is incorrect.” Mikhael v. INS, 115 F.3d 299,
302 (5th Cir. 1997). “In other words, [an alien] must show that
the evidence was so compelling that no reasonable factfinder could
conclude against it.” See Efe, 293 F.3d at 905; 8 U.S.C.
§1252(b)(4)(B)(“[A]dministrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to
the contrary.”). This court only reviews decisions made by the
BIA. See Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.
1991). Because the BIA summarily adopted the IJ’s findings and
conclusions in this case, we refer to those findings as
incorporated by the BIA decision. Efe, 293 F.3d at 903.
The primary basis for the IJ’s denial of the Beganovics’
asylum petition is that he did not find the Beganovics credible and
thus did not find that they carried their burden in proving past
persecution. This adverse credibility determination is based on a
number of inconsistencies that the IJ observed between the
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petitioners’ pre-hearing asylum statement, Ernad’s hearing
testimony, Safeta’s hearing testimony, and the Beganovic’s failure
to present documentary evidence in support of their asylum claim.
It is clear that we give great deference to an immigration
judge’s decisions concerning an alien’s credibility. Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994). In addition, the immigration judge
has the duty to judge the credibility of the witnesses and to make
findings accordingly. Vasquez-Mondragon v. INS, 560 F.2d 1225,
1226 (5th Cir. 1977). Furthermore, this court is simply “not
permitted to substitute our judgment for that of the Board or the
[Judge] with respect to the credibility of this testimony or the
ultimate findings of fact based thereon.” See id. at 1226 (internal
citation omitted).
But the IJ may not completely insulate his findings from our
review simply by stating that a petitioner is not credible. See
Anderson v. Bessmer City, 470 U.S. 564, 575 (citing Wainwright v.
Witt, 469 U.S. 412 (1985)). We agree with other circuits that the
IJ must provide cogent reasons for his credibility determination,
see, e.g., Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994);
Alvarado-Carillo v. INS, 251 F.3d 44, 56 (2d Cir. 2001);
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998); Mansour
v. INS, 230 F.3d 902, 906-09 (7th Cir. 2000); Zahedi v. INS, 222
F.3d 1157, 1165 (9th Cir. 2000), and those reasons must be
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supported by substantial evidence in the record much like any
factual determination. See Lopez De Jesus v. INS, 312 F.3d 155,161
(5th Cir. 2002)(“a credibility determination may not be overturned
unless the record compels it.”)
Our review of the IJ’s reasons and the record in this case,
however, does not compel us to reverse the IJ’s adverse credibility
determination. Ernad’s testimony before the IJ was inconsistent
with the first and second incidents of persecution he alleged in
his asylum petition. For example, in the first incident, the
asylum petition states that Ernad was beaten for a period of 30
minutes during police questioning. But his testimony before the IJ
alleges only that he was punched in the stomach once after the end
of questioning and only when he asked the police for the posters
back. Similarly, the second incident of alleged persecution in the
asylum petition makes no mention of Ernad being questioned and
released by the Serbian police as he testified before the IJ.
Instead, the petition only details the arrest of the SDA’s regional
president, Balic.
Further, as the IJ noted, the testimony of Ernad and Safeta
with regard to the fourth incident in June of 1996 is inconsistent.
Ernad never testified that he was hospitalized or that he went to
the hospital for outpatient treatment as a result of the police
beating. Conversely, Safeta testified first that Ernad was taken
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by an ambulance to the hospital “for a day or so.” Safeta next
testified that Ernad had not gone to the hospital until hours
later, was released the same day, and that he had been initially
treated by an emergency ambulance crew. In light of the
inconsistencies, the shifting nature of Safeta’s account of who was
present at the apartment when the ambulance arrived, and the
absence of any reference to an ambulance or hospital visit in the
rather detailed asylum petition submitted on the Beganovics’s
behalf, we cannot conclude that the IJ’s adverse credibility
determination in this case was not supported by substantial
evidence. A reasonable judge could view these inconsistencies as
evidence of falsity. See United States v. Jencks, 353 U.S. 657,
667 (1957)(“Flat contradiction between the witness’ testimony and
the version of the events given in his reports is not the only test
of inconsistency. The omission from the reports of facts related
at trial, or a contrast in emphasis upon the same facts, even a
different order of treatment, are also relevant to the cross-
examining process of testing the credibility of a witness’ trial
testimony.”).
Moreover, the IJ stated that his adverse credibility
determination was also bolstered by his “observing the respondent
closely” while Ernad was testifying and by the lack of any
documentation directly in support of Ernad’s political activities
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or his troubles with the Serbian police. While the Beganovics were
not required to provide documentary corroboration of the alleged
incidents of persecution, the immigration regulations
“unambiguously contemplate cases where an applicant’s testimony
alone will not satisfy his burden of proof.” See Sidhu v. INS, 220
F.3d 1085, 1090 (9th Cir. 2000)(citing 8 C.F.R. § 208.13(a)).
Though we agree that Ernad initially testified why documentation
was not available, i.e. the danger of keeping political articles
and party membership cards coupled with the difficulty of getting
information from Serbian officials, that initial testimony was
undercut by his later testimony in which he stated that civil
unrest prevented him from providing any documentary corroboration.
Ultimately, we cannot find a compelling reason in the record
to reverse the IJ’s adverse credibility determination and the IJ’s
concomitant determination that the Beganovics had not carried their
burden of proving past persecution necessary to warrant a grant of
asylum. Accordingly, we need not consider whether the IJ’s
alternative rulings withstand our scrutiny. The petition for
review is DENIED.
PETITION DENIED
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