INS v. Malek, Boutros ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-1386
BOUTROS MALEK,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
A72-651-490
Submitted June 8, 1999--Decided January 6, 2000
Before COFFEY, EASTERBROOK and ROVNER, Circuit Judges.
COFFEY, Circuit Judge. Boutros Malek is a native
and citizen of Lebanon who last entered the
United States in 1991./1 On May 24, 1994, an
Order to Show Cause (OSC) was issued after Malek
pled guilty to two counts of wire fraud and one
count of misuse of a social security number. The
OSC alleged that Malek entered the United States
without inspection/2 and was convicted of a
crime involving moral turpitude within five years
of entry, in violation of sections 241(a)(1)(B)
and 241(a)(2)(A)(i) of the Immigration and
Nationality Act of 1952. See 8 U.S.C. sec.
1251(a)(1) (B), (a)(2)(A)(i) (1994). At the
deportation hearing, Malek admitted the
allegations in the OSC, conceded deportability,
and applied for asylum and withholding of
deportation. The Immigration Judge (IJ) denied
Malek’s application for asylum, and the Board of
Immigration Appeals (BIA) dismissed the appeal.
We deny the petition for review.
I. BACKGROUND
Shortly after Malek entered the country in
1991, he embarked on a life of crime. According
to the indictment to which he pled guilty, Malek
rented a room and contracted for telephone
service using another person’s name and social
security number. Malek and others proceeded to
make hundreds of international telephone calls,
incurring more than $70,000 worth of charges
during a period of a little more than two weeks.
After Malek pled guilty to two counts of wire
fraud and one count of misuse of a social
security number, he was sentenced to concurrent
terms of 12 months’ imprisonment and was ordered
to pay more than $80,000 restitution. After being
convicted, deportation proceedings were initiated
against Malek and he made application for asylum
and withholding of deportation.
Country Conditions in Lebanon
The Department of State’s 1995 Country Report
for Lebanon states that representation in the
Lebanese parliament is Christian and Muslim,
and that the president is by tradition a
Christian. The report states that non-Lebanese
military forces, including Syrian troops, a
contingent of Israeli army regulars, an Israeli-
supported militia in southern Lebanon, and
several armed Palestinian factions, control much
of Lebanon and undermine the authority of the
central government. Additionally, Israeli forces,
the South Lebanon Army, Hezbollah (the Iranian-
backed Muslim militia), and allied Palestinian
guerrillas, continue to engage in armed conflict
in southern Lebanon. The report goes on to state
that the Lebanese economy was recovering from the
massive damage it suffered because of war-like
conditions between 1975 and 1990.
The Country Report states that the government
has not made substantial efforts to improve human
rights since the end of the hostilities in
Lebanon, but that the constitutional provision
for freedom of religion is respected in practice.
The report goes on to state, however, that life
and property in southern Lebanon are still
threatened by attacks. Furthermore, the Lebanese
army arrests and detains former members of the
Lebanese Forces (the dissolved Christian
militia). But, the report notes that the
government pardoned former army commander General
Aoun and two of his aides in 1991 on the
condition that they leave Lebanon and remain in
exile for five years.
Malek’s Asylum Application
In his asylum application, Malek claimed that
he was affiliated with General Michael Aoun and
his army during the civil war in Lebanon; that
his home and business were destroyed in the civil
war; that Hezbollah Muslims sought him because he
was an active political dissident and a
Christian, and because he was a political
opponent of terrorist groups sponsored by Iran
and Syria. He also stated that he would be at
risk in Lebanon because Syrian forces controlling
portions of Lebanon consider General Aoun to be
a political enemy. Additionally, Malek alleged in
his asylum application that he and his wife were
kidnaped in 1980 by the Syrians, that he and his
wife were beaten and subjected to electric shocks
while detained, and that his wife was raped
repeatedly in front of him. Finally, he claimed
in his application that he would be persecuted on
account of religion, nationality, political
opinion, and membership in a particular social
group if he returned to Lebanon.
Malek’s Testimony
Petitioner Malek, a Syriac Catholic, testified
at his April 1996 deportation hearing that civil
strife began in Lebanon in April 1975. Malek
stated that he was a supporter of the Christian
Phalangist militia from 1969, when he was 11-
years old, and that he was a commander with the
Christian militia in 1976. Malek further
testified that he was captured by the Syrian army
and Hezbollah, but was released in a prisoner
exchange. He testified that friends of his who
were captured at the same time have subsequently
informed the Syrian, Hezbollah, and Jihad Islamic
forces who he is, and that these forces now seek
him because of his active resistance to foreign
forces in Lebanon.
He testified that he was kidnaped and detained
six or seven times in Lebanon between 1977 and
1988 for periods of two to five days, and that he
was beaten and tortured on those occasions. He
testified that his wife was detained with him for
two or three days in 1980,/3 and that, while
detained, they were tortured and that she was
raped repeatedly in front of him. Finally, Malek
stated that he would be killed if he returned to
Lebanon.
Mrs. Malek’s Testimony
Madeline Malek, petitioner’s wife and a Maronite
Christian, testified that the Malek family left
Lebanon permanently in 1991 because: 1) two of
her children were American citizens; 2) she was
raped in Lebanon; and 3) the Syrian army had
threatened to kill her husband. Mrs. Malek
explained that she was raped on the street by two
unidentified men when going from a store to her
house, but was unable to remember what year the
raped occurred. Contrary to Malek’s testimony
that she was raped repeatedly in front of him,
Mrs. Malek testified that she was not raped at
any other time. She went on to testify that the
whole family was jailed in about 1988 by the
Syrian army, but the captors released them within
two or three days after some money and a watch
was stolen from the Malek family.
With regard to Malek’s military service, Mrs.
Malek testified that her husband was in the army
in the early 1970’s but left the army in 1976.
She also stated that Malek provided fiscal
support to the army between 1979 and 1991.
The Immigration Judge’s Decision
When determining that Malek failed to establish
eligibility for asylum and withholding of
deportation, the IJ properly considered Malek’s
credibility to be of significant importance. The
IJ determined that there were "significant
discrepancies, inconsistencies and evidentiary
gaps" in Malek’s application and testimony, and
concluded that Malek’s claim was not
"sufficiently credible, consistent or plausible"
to warrant the granting of asylum.
In concluding that Malek was not credible, the
IJ noted that Malek testified that he was
kidnaped, beaten and tortured by Syrian forces
between 1977 and 1988, but failed to mention any
of these events in his asylum application. The IJ
went on to note that during the times that Malek
was allegedly being subjected to beatings and
torture, he visited the United States on six
occasions, yet never sought asylum. As for
Malek’s fear of persecution based on his support
of General Aoun, the IJ stated that Malek
admitted that he was not an actual member of the
militia forces, but merely a financial supporter.
The IJ found it implausible that Syrian forces
would persecute Malek on the basis of his alleged
financial support to Aoun from 1979 to 1991 given
the fact that he traveled to Damascus, Syria in
1991 without incident.
The IJ recognized that Malek may have sustained
losses to his business and property holdings in
the course of the Lebanese civil war that began
in 1975, but stated that Malek failed to
establish that the losses were the result of an
act of persecution directed against him, as
opposed to the result of general civil strife.
Relying on the underlying facts of Malek’s
criminal conduct and a finding that Malek’s
testimony "was at times vague, lacking in
internal consistency and plausibility[,] and
[that Malek’s] whole overall claim was highly
lacking in persuasiveness[,]" the IJ denied
Malek’s application for asylum and withholding of
deportation.
The Board of Immigration Appeals
The BIA agreed with the IJ’s decision that
Malek did not present credible evidence
demonstrating that he was the victim of past
persecution or that he had a well-founded fear of
persecution should he return to Lebanon. In
agreeing with the IJ, the BIA addressed numerous
material inconsistencies between the testimony of
Malek and his wife, and Malek’s application. The
BIA noted that Mrs. Malek testified that two
unidentified men raped her on the street, that
she did not know who the assailants were, and
that this was the only time she was raped. The
BIA also noted that Mrs. Malek testified that the
Syrian army had arrested her and her family, and
that they were held for 2-3 days in an
underground room./4
As the BIA observed, Malek offered a vastly
different version of events. Malek’s application
stated that the Syrian army had kidnaped him and
his wife and that they were detained for over two
months. Although Mrs. Malek testified to nothing
even resembling this, Malek stated that they were
beaten, given electric shocks, given little food
or water, and that his wife was raped repeatedly
in front of him. Finally, the BIA noted that
although Malek testified that the Syrian army
mistreated him and his wife, his application
stated that it was Hezbollah who did so.
The BIA also concluded that,
[b]esides the credibility problems with the
respondent’s testimony, we find that the other
witnesses’ testimony was not sufficient to
corroborate the respondent’s written and oral
statements as their knowledge of the respondent’s
experiences in Lebanon appears to be limited. For
example, [Malek’s] pastor testified that he did
not personally know the respondent in Lebanon .
. . . Also, he stated that the respondent and his
wife did not discuss their experiences in Lebanon
with him . . . . Also, [Malek’s] daughter was
unable to corroborate much of [his] testimony
because she was young when many of the events to
which [Malek] testified occurred. For example,
she did not find out until recently that her
mother had been raped and her father detained .
. . . Therefore, we conclude that the
respondent’s application for asylum and
withholding of deportation has not been presented
in a sufficiently detailed and consistent manner
to provide a plausible and coherent account of
the basis for his fear.
Finally, the BIA stated that it did not believe
Malek had a well-founded fear of future
persecution given the fact that Malek made
"numerous visits to the United States between
1978 and 1991" and had always returned to
Lebanon. The BIA noted that if the conditions in
Lebanon were truly as Malek described them, then
he would have had numerous opportunities to seek
asylum during his visits to the United States but
never saw fit to do so, and the BIA could see "no
difference in the respondent’s [current]
situation."
On appeal, Malek argues: 1) that the IJ and BIA
applied "too difficult a standard for [him] to
meet in establishing his claim for asylum[;]" and
2) that, despite his failure to request an
interpreter, the IJ should have sua sponte
provided an interpreter for Mrs. Malek.
II. ANALYSIS
A. Malek’s Asylum Claim
Malek’s main argument on appeal is that the BIA
wrongly determined that he did not qualify as a
refugee for asylum purposes. In reviewing Malek’s
claim for asylum and withholding of deportation,
we defer to the BIA’s factual findings, reversing
the BIA only if the record lacks substantial
evidence to support its factual conclusions. See
Angoucheva v. INS, 106 F.3d 781, 788 (7th Cir.
1997). Therefore, the BIA’s conclusion that Malek
failed to present specific facts that he had been
persecuted or had good reason to fear that he
will be singled out for persecution in the future
will only be disturbed if the evidence is "so
compelling that no reasonable factfinder could
fail to find the requisite fear of persecution."
Angoucheva, 106 F.3d at 788 (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).
This standard is "highly deferential" to the BIA
because of the "fact-intensive nature of
[deportation] inquiries and the superior
expertise of the agencies that administer our
immigration law." Bhatt v. Reno, 172 F.3d 978,
981 (7th Cir. 1999) (citation omitted).
As we stated in Ahmad v. INS, 163 F.3d 457, 461
(7th Cir. 1999),
Credibility determinations are accorded
substantial deference, but they must be supported
by "specific, cogent reasons." Nasseri v.
Moschorak, 34 F.3d 723, 726 (9th Cir. 1994),
overruled on other grounds by Fisher v. I.N.S.,
79 F.3d 955 (9th Cir. 1996). In addition, these
reasons must "bear a legitimate nexus to the
finding." Id. Credibility determinations in these
sorts of proceedings should only be overturned
under extraordinary circumstances, Nasir v. INS,
122 F.3d 484, 486 (7th Cir. 1997), and a
reviewing court should not supersede an
administrative agency’s findings simply because
an alternative finding could also be supported by
substantial evidence, Arkansas v. Oklahoma, 503
U.S. 91, 113, 112 S. Ct. 1046, 117 L. Ed. 2d 239
(1992).
In the present case, the BIA offered cogent
reasons for its adverse credibility determination
that had the requisite nexus to Malek’s claim.
The BIA, after reviewing all the testimony,
simply did not believe Malek’s version of events
and offered logical reasons for its credibility
determination. Malek is correct that there are
instances where courts have ruled that a
credibility determination was not supported by
substantial evidence. See e.g., Cordero-Trejo v.
INS, 40 F.3d 482 (1st Cir. 1994); Argueta v. INS,
759 F.2d 1395 (9th Cir. 1985). Unlike those
situations, however, this is not a case where the
BIA’s adverse credibility determination was not
based on substantial evidence. For example,
Malek’s application stated that he and his wife
were detained for two months, tortured, given
little food or water, and that his wife was raped
repeatedly in front of him. On the other hand,
Mrs. Malek: 1) never claimed to have been raped
while in captivity; 2) claimed to have been held
for only 2-3 days (not 2 months); and 3) never
mentioned being tortured.
Here, there were a number of clear
inconsistencies between Malek’s and his wife’s
testimony, as well as with Malek’s testimony and
his written application, and the BIA did not make
unsupported, blanket statements that it simply
did not believe Malek. On the contrary, the BIA
provided ample reasons for its disbelief. We are
convinced that substantial evidence supports the
BIA’s decision to deny Malek’s claim for
asylum./5
B. The Decision to Proceed Without an
Interpreter
In addition, Malek raises, for the first time
in his appellate brief before this court, the
argument that his wife should have been provided
an interpreter. However, Malek did not raise this
claim or any support for it before the IJ (in
fact, Malek’s counsel declined the IJ’s offer for
an interpreter) or the BIA, and this court has
made clear that it "will not weigh evidence that
the Board has not previously considered; an
appellate court is not the appropriate forum to
engage in fact-finding in the first instance."
Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir.
1992).
We deny the Petition for Review.
/1 It is unclear from the record whether Malek was
last admitted to the United States at Chicago,
Illinois or New York, New York.
/2 Malek was admitted to the United States as a non-
immigrant visitor for pleasure and authorized to
remain in the U.S. for a period of six months.
Malek, however, remained in the U.S. without
authority from the INS.
/3 Malek’s application for asylum and withholding of
deportation stated that they were detained for
two months.
/4 The BIA noted that the record reflected that Mrs.
Malek may have had difficulty understanding and
speaking English, but neither she nor Malek ever
requested an interpreter. Malek did not raise the
issue on his appeal to the BIA.
/5 Because Malek fails to demonstrate that he should
have been granted asylum, he necessarily fails to
satisfy the more stringent requirements for
withholding of deportation. See Boykov v. INS,
109 F.3d 413, 418 (7th Cir. 1997).