Nabil Saif v. Eric Holder, Jr. , 452 F. App'x 631 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0851n.06
FILED
No. 10-3355 Dec 16, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
)
NABIL ABDO SAIF, )
)
Petitioner–Appellant, )
) ON PETITION FOR REVIEW FROM
v. ) AN ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., )
)
Respondent–Appellee. )
)
Before: CLAY, GIBBONS, and WHITE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Nabil Abdo Saif seeks review of a final order
of removal from the Board of Immigration Appeals (“BIA”) affirming the decision of an
Immigration Judge (“IJ”) that found him ineligible for asylum, withholding of removal, or relief
under the Convention Against Torture and ordered him returned to Yemen. For the reasons set forth
below, we deny the petition for review.
I.
Saif is a citizen of Yemen who entered the United States on July 27, 1995. He overstayed
his visa, was ordered to appear before an IJ, and then filed a petition for asylum and withholding of
removal. Saif made two principal claims in his application and at his removal hearing on May 19,
2008. First, Saif stated that he would be persecuted if he returned to Yemen, as he had changed his
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religious beliefs and converted to the Baptist faith. Second, Saif claimed that he would be
persecuted because he had voluntarily shared information with American officials in Yemen in the
early 1990s about the perpetrators of the U.S. embassy bombing and had voluntarily shared
information with FBI officials in the United States after the September 11, 2001 attacks.
The IJ denied Saif’s application and ordered him removed. The IJ found that Saif was not
credible with respect to his claim that he feared persecution on account of his religious beliefs. He
noted that Saif would not answer certain questions and also cited inconsistencies between what Saif
stated in his asylum application and what he related at the hearing. He further noted that Saif had
not been baptized or become a member of the Baptist church, nor had Saif provided credible
evidence of regular church attendance. The IJ found that the testimony of Saif’s only witness, his
ex-wife, lent little support to his claim, especially since she was financially dependent upon Saif and
would be directly affected were he removed. Moreover, the IJ found that there was not sufficient
evidence of a pattern or practice of persecution of Christian converts in Yemen, a finding
unnecessary to his final ruling because he had found no credible evidence that Saif had indeed
converted to Christianity. The IJ also found that Saif’s second claim—that he feared persecution on
account of his cooperation with American officials—lacked credibility and corroboration. Finally,
he denied Saif’s claims under the Convention Against Torture, as Saif had presented no evidence
that he would be harmed upon his return to Yemen, let alone tortured.
The BIA affirmed and elaborated upon the decision of the IJ. With respect to Saif’s claim
that he feared persecution based upon his conversion to Christianity, the BIA found Saif’s testimony
“vague and non-responsive.” The BIA noted that Saif had provided no documentary evidence of
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regular church attendance, could not remember the name of one of the churches he supposedly
attended, and could not remember the name of a neighbor with whom he went to church. The BIA
also agreed with the IJ’s determination that Saif had not provided any documentary evidence to
support his claim that he spoke with American officials, documentary evidence that should have
been readily available.
The BIA did find that the IJ had made some “unnecessary comments” about Saif’s living
arrangements and had insinuated that Saif had hidden evidence, but those comments did not
undermine the conclusion that Saif’s testimony was inconsistent and unsupported by adequate
documentation. Accordingly, the BIA affirmed the IJ’s decision to deny Saif’s asylum, withholding
of removal, and Torture Convention claims.
On appeal, Saif contests the denial of his withholding of removal claim and his Torture
Convention claim; he does not contest the denial of his asylum claim. Saif argues (1) that the BIA
erred in finding that he had not met his burden of proof for relief, due in large part to its finding that
he lacked credibility and corroborating evidence; and (2) that his due process rights were violated.
This court has jurisdiction over final orders of removal pursuant to 8 U.S.C. § 1252. Singh
v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005).
II.
Under § 241(b)(3) of the Immigration and Naturalization Act, “the Attorney General may not
remove an alien to a country if the Attorney General decides that the alien’s life or freedom would
be threatened in that country because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). To qualify for withholding
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of removal, an alien bears the burden of showing a “clear probability” of persecution. Liti v.
Gonzales, 411 F.3d 631, 640–41 (6th Cir. 2005). The alien must, in other words, establish that “it
is more likely than not that he . . . would be persecuted on account of [a protected ground] upon
removal to that country.” Haider v. Holder, 595 F.3d 276, 284 (6th Cir. 2010) (alterations in
original) (quoting 8 C.F.R. § 208.16(b)(2)).
Similarly, to qualify for relief under the Convention Against Torture, an “alien must
‘establish that it is more likely than not that he or she would be tortured if removed to the proposed
country of removal.’” Dugboe v. Holder, 644 F.3d 462, 472 (6th Cir. 2011) (quoting 8 C.F.R. §
1208.16(c)(2)). To qualify for relief under the Torture Convention, an alien need not demonstrate
that the alleged harm will result from one of the enumerated five grounds (race, religion, nationality,
social group, or political opinion), but he “must establish a ‘particularized threat of torture.’”
Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006) (citation omitted).
A. Adverse Credibility Determination
Where the BIA reviews the IJ’s decision and issues a separate opinion, rather than summarily
affirming the IJ’s decision, we review the BIA’s decision as the final agency determination. Khalili
v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). To the extent the BIA adopted the IJ’s reasoning,
however, we also review the IJ’s decision. Id. This court looks to whether the decisions of the IJ
and the BIA are supported by substantial evidence. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.
2005). Under that standard, we may only reverse if their “decision was manifestly contrary to law,
that is, if the evidence not only supports a contrary conclusion, but indeed compels it.” Cruz-
Samayoa v. Holder, 607 F.3d 1145, 1149 (6th Cir. 2010) (internal citations and quotation marks
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omitted); 8 U.S.C. § 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary”).
An adverse credibility determination is a valid basis for denying an alien’s claim. See Vasha
v. Gonzales, 410 F.3d 863, 871–72 (6th Cir. 2005). Because findings of credibility are considered
findings of fact, this court applies the substantial evidence standard. Sylla v. INS, 388 F.3d 924, 925
(6th Cir. 2004). Accordingly, “an adverse credibility finding is afforded substantial deference, [but]
. . . must be supported by specific reasons.” Id. at 926. “Under the REAL ID Act, credibility
determinations are based on the ‘totality of the circumstances’ and should take into account ‘all
relevant factors.’” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011).1 These factors include
the demeanor, candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements (whenever made and whether or
not under oath, and considering the circumstances under which the statements were
made), the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the Department of
State on country conditions), and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart
of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii); El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009).
Here, sufficient evidence supports the finding that Saif was not credible. Both the IJ and the
BIA noted several inconsistencies and weaknesses in Saif’s testimony. Saif had told the IJ in 2006
that he would be baptized “soon” but then repeated the same statement to the IJ in 2008. The IJ
1
The REAL ID Act applies to all applications for asylum, withholding of removal, or other
forms of relief filed after May 11, 2005. El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009).
Saif filed his application on April 25, 2006, and therefore the REAL ID Act applies to his case.
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noted that on Saif’s asylum application in 2006, he claimed he had been attending church “for about
four years” but admitted in his testimony at the removal hearing that he had only attended church a
handful of times prior to 2006. Moreover, as the BIA noted, Saif could not remember the name of
one of the churches he supposedly attended and could not remember the name of a neighbor with
whom he went to church. Overall, both the IJ and BIA found Saif’s testimony non-responsive.
These inconsistencies and weaknesses, contrary to Saif’s assertions, are not minor: they go to
whether Saif provided credible evidence that he had converted to Christianity, which served as a
basis for his claim of fear of persecution.2
Further, Saif’s corroborating evidence was particularly weak. Saif produced two nearly
identical letters to document his church attendance, but each letter only confirmed that Saif had
visited the church once and appear to be form letters sent to visitors, not regular church-goers. Saif
failed to provide any reliable corroborating evidence that he had attended church regularly—either
through a letter or a witness that could confirm his regular attendance. Saif’s ex-wife did testify that
Saif had regularly attended church starting in 2006 but, as the IJ noted, Saif’s ex-wife was financially
dependent upon him, and would be directly affected by his removal. The IJ was entitled, in his role
as fact-finder, to accord her testimony less weight. See Aichai Hu v. Holder, 335 F. App’x 510, 515
(6th Cir. 2009) (holding that an IJ is required to assess the credibility of the witnesses who testify
and to determine what weight their testimony deserves). Moreover, there was no evidence that Saif
2
In any event, this court has recognized that the REAL ID Act’s credibility standard
“entitle[s] the IJ’s overall adverse credibility determination to deference, regardless of whether the
inconsistencies bear on the heart of [an applicant’s] claim.” El–Moussa, 569 F.3d at 256.
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had been baptized or had become a member of the Baptist church. Taken alone, not being baptized
or not being a member of the Baptist church would not be fatal to Saif’s claim—but when combined
with Saif’s lack of credibility and documentary evidence, these facts are more compelling.3
The IJ’s expectation that Saif produce corroborating information about regular church
attendance was—in light of his lack of credibility—entirely permissible. See Yan Chen v. Holder,
423 F. App’x 557, 561 (6th Cir. 2011) (“Because the immigration judge found that [the applicant]
was not credible, he could have properly determined that she was obligated to provide objective
corroboration of her claims.”); see also Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004)
(“[W]here it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the
specifics of an applicant’s claim, such evidence should be provided.”) (internal quotation marks and
citation omitted). An IJ is “permitted to rely on the failure of an alien to present corroborating
evidence when making a credibility determination and where there are also inconsistencies in the
alien’s testimony.” Ikharo v. Holder, 614 F.3d 622, 634 (6th Cir. 2010). The BIA and IJ were thus
permitted to rely in part on Saif’s lack of reliable corroborative evidence in finding him not credible.
The inconsistencies and weaknesses in Saif’s testimony, as well as the lack of corroborating
evidence, led the IJ and BIA to find Saif not credible. Viewing the record in its entirety, a reasonable
3
Saif incorrectly contends that the IJ and BIA questioned whether Saif was a Christian
because he had not been baptized. First, that is not the case: at no time did either the IJ or the BIA
hold that Saif’s claim of religious conversion failed solely because he had not been baptized. And
second, the only reason that the ritual of baptism became relevant was that Saif stated to the IJ in
2006 that he was going to get baptized “soon,” a claim he repeated to the IJ in 2008.
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fact-finder would not be compelled to reach a contrary conclusion. See Cruz-Samayoa, 607 F.3d at
1149; 8 U.S.C. § 1252(b)(4)(B). Therefore, we affirm the adverse credibility finding.
Because the same credibility standard applies to claims for withholding of removal and for
relief under the Torture Convention, El-Moussa, 569 F.3d at 256, and because Saif bases his claim
that it is more likely than not that he will be tortured on the same ground as his claim that it is more
likely than not that he will be persecuted, i.e., that he has converted to Christianity, the adverse
credibility finding extends to both claims.4 See Berri v. Gonzales, 468 F.3d 390, 398 (6th Cir. 2006).
Further, because we affirm the adverse credibility finding, it is not necessary to reach the question
whether the IJ’s finding on country conditions was proper, as Saif failed to provide credible evidence
that he had converted to Christianity and, therefore, would be at risk in Yemen.
B. Due Process
Saif further claims that the IJ violated his due process rights by “devaluing [Saif’s] testimony
in favor of facts created in his own mind from which he dr[ew] conclusions,” and “disregard[ing]”
evidence without reasoned explanation. It is undisputed that all applicants for withholding of
removal or other forms of similar relief enjoy a Fifth Amendment right to a full and fair hearing.
Hachem v. Holder, 656 F.3d at 435 (citing Ndrecaj v. Mukasey, 522 F.3d 667, 673 (6th Cir. 2008));
see generally Reno v. Flores, 507 U.S. 292, 306 (1993). In other words, aliens “are entitled to an
unbiased arbiter who has not prejudged their claims.” Ahmed v. Gonzales, 398 F.3d 722, 725 (6th
4
Saif does not contest the IJ’s and BIA’s finding that he insufficiently corroborated his
alleged conversations with American officials in Yemen in the 1990s and in the United States after
September 11, 2001. Saif has therefore waived the issue. See Sec. Watch, Inc. v. Sentinel Sys.,
Inc.,176 F.3d 369, 376 (6th Cir. 1999).
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Cir. 2005). In order to prevail on a due process claim, an alien must establish both error and
substantial prejudice. Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007). We review
allegations of violations of due process de novo. Id.Saif claims that a number of the comments made by the IJ demonstrate that the IJ disregarded
evidence, having already come to a pre-determined conclusion regarding those claims. As an initial
matter, it is important to note that the BIA disagreed with some of the IJ’s comments about which
Saif now complains—specifically regarding Saif’s living arrangements and marriages, his hiding of
evidence, and his never attending church—and found them “unnecessary.” We agree that these
comments were unnecessary, but they do not demonstrate conscious disregard of evidence or bias
in favor of the government. See Hachem, 656 F.3d at 435 (isolated sarcastic remark insufficient to
show due process violation); Hassan v. Gonzales, 403 F.3d 429, 437 (6th Cir. 2005) (brusque
language insufficient to show bias in favor of government).
Saif also claims that the following comments, unaddressed by the BIA, evince bias or
conscious disregard of evidence: (1) the IJ’s observation that Saif “crossed himself” like a Catholic
and (2) the IJ’s observation that Saif thought that merely shaking hands with a pastor made him a
Christian. As to the first comment, it is unclear from the record what, if any, inference the IJ drew
from his observation that Saif was crossing himself. But even if the inference was questionable
(that, for instance, it is only appropriate for Catholics to cross themselves), it does not indicate that
the IJ failed to consider fairly Saif’s evidence—the touchstone of a due process violation. See
Ndrecaj, 522 F.3d at 673 (finding no due process violation where there was “no evidence that [the
IJ] did not fairly consider the [applicants’] evidence”). As to the second comment, the IJ’s remark
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that Saif thought that shaking hands with a pastor made him a Christian was merely a reflection of
the fact that Saif had provided very little corroborative evidence of his regular church attendance.
The comment was arguably sarcastic, but this court has found that such comments, standing alone,
do not amount to a due process violation. See Hachem, 656 F.3d at 435; Pepaj v. Mukasey, 307 F.
App’x. 891, 897–98 (6th Cir. 2009) (“Although the IJ’s occasional sarcastic comments were
unnecessary and inappropriate, a few such comments are not enough to show that an IJ was biased
to the level of a due-process violation.”).
Taking both the oral decision as well as the hearing transcript as a whole, there is insufficient
evidence to show a due process violation. The IJ made some unnecessary comments at times, but
overall he conducted a thorough and fair hearing. Cf. Ahmed, 398 F.3d at 726–27 (finding due
process violation where IJ misstated and misunderstood applicant’s testimony, confused witnesses,
and then “largely based his denial of asylum on credibility findings based upon confused exchanges
which were instigated by his own failure to understand correctly [the applicants’] answers to his
questions”). Accordingly, we find that the IJ did not violate Saif’s due process rights.
III.
For the foregoing reasons, we deny the petition for review.
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