Ouattara v. Ashcroft ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0031n.06
Filed: January 12, 2005
No. 03-3966
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EL HASSANE OUATTARA, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF AN
) ORDER OF THE BOARD OF
JOHN ASHCROFT, Attorney General, ) IMMIGRATION APPEALS
)
Respondent. )
Before: NELSON and COOK, Circuit Judges; SARGUS, District Judge.*
COOK, Circuit Judge. Petitioner El Hassane Ouattara seeks review of a final order of
removal. The Board of Immigration Appeals denied Ouattara’s petition for asylum and withholding
of removal and ordered Ouattara removed to his native country of Mauritania. Because substantial
evidence supports the BIA’s conclusion that, due to changed country conditions in Mauritania,
Ouattara no longer possesses a well-founded fear of persecution, we deny the petition for review.
I
Ouattara is a citizen of Mauritania who entered the United States without valid entry
documents. The INS issued him a Notice to Appear in Immigration Court to initiate removal
*
The Honorable Edmund A. Sargus, United States District Judge for the Southern District
of Ohio, sitting by designation.
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Ouattara v. Ashcroft
proceedings. Ouattara conceded that he was removable, but sought asylum and withholding of
removal under 8 U.S.C. § 1158 and the United Nations Convention Against Torture, respectively.
In Immigration Court, Ouattara alone testified—through a French interpreter—on his own behalf.
Ouattara argued that asylum and withholding were appropriate because the government of
Mauritania had persecuted him based on his nationality (Soninke tribe); political beliefs (the
government believed Ouattara belonged to the dissident FLAM party); and religion (Christian).
The immigration judge, however, denied Ouattara’s petition for asylum and withholding.
The IJ found that Ouattara lacked credibility based on several inconsistencies between Ouattara’s
asylum application and his testimony during the hearing. Because the Immigration Court found
Ouattara not credible, it denied him asylum and withholding. Alternatively, even assuming
Ouattara’s credibility regarding his past persecution, the IJ found granting asylum and withholding
inappropriate due to sufficiently improved country conditions in Mauritania that dissipate the future
threat of ethnic, political, and religious persecution against Ouattara.
Ouattara appealed to the BIA, which affirmed without opinion. See 8 C.F.R. § 1003.1(e)(4).
Ouattara now petitions this court to reverse the BIA’s decision and grant his application for asylum
and withholding.
II
A. Due Process Violation
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Ouattara raises three arguments on appeal.1 He first argues that the failure to provide him
with a competent interpreter during his hearing constituted a due process violation. Since the BIA
affirmed the IJ’s decision without issuing an opinion, this court reviews the IJ’s explanation as that
of the BIA’s. Denko v. I.N.S., 351 F.3d 717, 730 (6th Cir. 2003). And this court reviews the IJ’s
legal determinations—including determinations concerning interpreter competency—de novo. See
Amadou v. I.N.S., 226 F.3d 724, 726 (6th Cir. 2000).
To succeed on a due process claim in this context, the petitioner must show both
incompetence by the interpreter and resulting prejudice. See Larita-Martinez v. I.N.S., 220 F.3d
1092, 1095 (9th Cir. 2000). An interpreter may be incompetent if his skills are questionable.
Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930) (interpreter’s “capability should be
unquestioned”). See also Amadou, 226 F.3d at 727. Evidence of a questionable interpreter includes
incorrectly translated words, unresponsive answers by the witness, and the witness’s expression of
difficulty understanding what is said to him. Perez-Lastor v. I.N.S., 208 F.3d 773, 778 (9th Cir.
2000). And prejudice means that the interpreter error significantly affected the outcome of the
proceedings. See, e.g., Amadou, 226 F.3d at 727.
1
Ouattara briefed a fourth argument, challenging the BIA’s procedure of affirming an IJ
decision without issuing an opinion. But Ouattara’s counsel expressly waived this issue at oral
argument, and thus we do not consider it.
Also, Ouattara, in response to a question from the bench at oral argument, filed a letter brief
on the issue of “humanitarian asylum” under 8 C.F.R. § 1208.13(b)(1)(iii)(A). As pointed out by
the government in response, however, Ouattara never raised the issue of his eligibility for
humanitarian asylum before the BIA or in his brief to this Court, thereby forfeiting any claim to such
relief.
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Our review of the hearing transcript suggests reason to doubt the competency of Ouattara’s
interpreter, including apparent miscommunication and a translation error that potentially prejudiced
Ouattara by tainting the IJ’s conclusion about his credibility. But since we find no error in the IJ
denying Ouattara’s petition on the alternate ground that he failed to demonstrate a well-founded fear
of persecution due to changed country conditions in Mauritania, as set forth below, we do not decide
this due process claim. See, e.g., Daneshvar v. Ashcroft, 355 F.3d 615, 622 (6th Cir. 2004) (finding
potential interpreter error to be legally irrelevant in light of independent country conditions basis
for denying asylum).
B. Adverse Credibility Determination
We similarly refrain from scrutinizing the IJ’s adverse credibility determination regarding
Ouattara’s testimony.2 As with the due process claim, the changed-country-conditions finding
obviates the relevance of this claimed error.
C. Well-Founder Fear Of Persecution
2
If the procedural circumstances were different, Ouattara’s challenge to the IJ’s credibility
determination might prove to be well-taken. The IJ hinged much of his credibility view on
inconsistencies that, to us, seem trivial. For instance, the IJ noted discrepancies in Ouattara’s date
of deportation (Ouattara said January one time and June another) and whether his mother was among
the various family members arrested with him (Ouattara failed to mention his mother’s arrest one
time and then did another). These sorts of inconsistencies do not bear on the merit of his persecution
claim and thus are poor indicia of a petitioner’s effort to deceive. See Daneshvar, 355 F.3d at 623.
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Ouattara challenges the IJ’s determination that the conditions in Mauritania have improved
so that Ouattara no longer has a well-founded fear of persecution if sent back. See 8 C.F.R. §
1208.13(b)(1)(i)(A)(change in country conditions as ground to deny asylum); 8 C.F.R. § 1208.16
(b)(1)(i)(A) (change in country conditions as ground to deny withholding of removal). The IJ relied
on Department of State reports indicating that most Mauritanian refugees have returned peacefully
to their native country. Ouattara contends nevertheless that the State Department reports are not
enough; that the IJ needed to conduct an “individualized analysis” of Ouattara’s situation in
determining that it was safe for him to return. He insists that the Department of State reports give
only a broad overview of Mauritania and that the reports focused neither on Ouattara’s particular
region in Mauritania nor his particular characteristics as a Black Christian of the Soninke tribe.
Therefore, according to Ouattara, the shortcomings of the reports leave the IJ’s finding of changed
country conditions unsupported by the requisite “substantial evidence.” See Mullai v. Ashcroft, 385
F.3d 635, 639 (6th Cir. 2004).
Not so. The record shows that the IJ reviewed the Department of State reports on Mauritania
and found that a person in Ouattara’s shoes—a Christian, belonging to the Soninke tribe, and
arguably a member of the FLAM political party—would not suffer persecution in Mauritania. His
finding goes on to note that Christian churches are now prevalent throughout Mauritania and that
Christians have not recently been persecuted or tortured. The IJ also considered the absence of any
government persecution based on political membership or social group in Mauritania. And while
the IJ only generally stated that many Mauritanian refugees have “successfully and peacefully”
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returned to the country, the Department of State reports confirm that refugees have successfully
returned to Ouattara’s particular region along the Senegal River.
This particularized review of country conditions properly rebutted Ouattara’s claim of a well-
founded fear of future persecution. Indeed, this immigration judge’s thoroughness contrasts
favorably with cases Ouattara cites on the subject of individualized assessment. Cf. Garrovillas v.
I.N.S., 156 F.3d 1010, 1017 (9th Cir. 1998) (BIA merely quoted a portion of the Department of State
report, but failed to provide any analysis of how it applied to petitioner).
III
Because the IJ found that Ouattara failed to demonstrate a well-founded fear of persecution
due to changed country conditions in Mauritania, we uphold the BIA’s decision and deny the
petition for review.
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