Sow, Thierno Y. v. Gonzales, Alberto R. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 14, 2006
Decided June 27, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4042
Petition for Review of an Order of the
THIERNO YOUSSOUF SOW, Board of Immigration Appeals
Petitioner,
No. A79-325-079
v.
ALBERTO R. GONZALES,
Respondent.
ORDER
Thierno Youssouf Sow, a native and citizen of Guinea, entered the United
States in June 2001. He filed for asylum, withholding of removal, and protection
under the Convention Against Torture, claiming he suffered persecution based on
his political activity as a member of the Rally for the People of Guinea (RPG), a
political party opposed to the ruling government. An Immigration Judge (“IJ”)
denied relief, finding Sow’s testimony was not sufficient to establish that he had
been persecuted. The Board of Immigration Appeals (“BIA”) affirmed. We deny
Sow’s petition for review.
Sow belongs to the Fulani ethnic group and worked as a merchant. At his
hearing, Sow testified that he joined the RPG in 1993. He explained that RPG
members opposed the presidency of Lansana Conte, a member of the ruling Party of
Unity and Progress, but he provided little detail about his activities with RPG.
No. 05-4042 Page 2
Sow testified that he was arrested twice for protesting on behalf of the RPG
party and its presidential candidate, Alpha Conde, but at his hearing gave
inconsistent testimony regarding the dates of his arrests. Sow testified that he was
arrested the first time in 1998 for protesting Conde’s arrest the day after the
presidential election. But when the IJ questioned Sow at a later point in the
hearing, he testified that he was arrested in December 1996 and detained until
March 1997. The IJ followed up by asking Sow whether he was sure about the
dates of his arrest and release, and Sow repeated the same dates, adding that he
was arrested a second time in September 1998. Later Sow testified that he was
arrested the first time in 1998, and again in 2000 after Conde was sentenced to
prison; this testimony is consistent with Sow’s asylum application and the 2001
State Department Country Report, which says that Conde was arrested on
December 15, 1998, and sentenced to prison on September 11, 2000.
Sow testified about both of his detentions but provided little detail regarding
the conditions he endured on either occasion. He testified that after his first arrest
he was detained at a military camp, where he was beaten and confined in a small
cell with other protesters. The guards told Sow they would release him if he signed
a document saying Conde was bringing rebels into the country. Sow was detained
at this camp for three months. He testified he was released because he had been
stabbed in the leg by “a military guy” and was “suffering so much.” After his second
arrest he was taken to the same camp, beaten, and accused of plotting against the
government. Two months later he was released.
Upon Sow’s release, his captors took away his merchant’s license and closed
his store. Sow tried to retrieve his license and merchandise but was unable to do
so. He then decided to leave Guinea, so he paid to use another man’s passport. Sow
testified that he left because he was warned that if he was arrested again, he would
be jailed and probably killed.
In support of his application Sow submitted three RPG membership cards for
the years 1999, 2000, and 2001. The IJ questioned why he did not submit
additional materials. Sow said he did not bring with him any medical records, and
he did not have any formal papers charging him with a crime. The IJ asked Sow
whether he knew that the RPG had a branch in New York and whether he obtained
any documentation from that office regarding his membership; Sow responded that
he had heard about the office but had not visited it and did not know that
documents were necessary. Sow’s attorney requested a continuance so that Sow
could obtain information from the New York office, but the IJ denied the request.
The IJ denied Sow’s application, finding his testimony was not credible for
several reasons: (1) he gave inconsistent answers regarding the dates of his
detentions; (2) he provided only vague information regarding the goals of the RPG
No. 05-4042 Page 3
or his activities with the party; (3) he gave little detail regarding the conditions of
his detentions or his claim that he was stabbed; (4) he used fraudulent documents
to enter the United States; (5) he did not leave Guinea immediately after his release
from detention; and (6) he did not provide any evidence to corroborate his
testimony. The IJ believed that portions of Sow’s testimony were “memorized” and
“not factually true” because he became “confused” about the dates of his
imprisonment and his testimony was “not sufficient, standing alone, to establish the
credibility of his underlying facts.” The IJ said documents concerning Sow’s RPG
activities or his injury while detained, or affidavits from his family would have been
particularly helpful to corroborate his testimony. The IJ also determined that
because Sow had limited involvement with the RPG and because Conde and many
of his supporters have been pardoned, he would not face persecution if returned to
Guinea.
The BIA affirmed in a short order, determining that Sow’s “discrepant
answers” regarding the date of his first arrest “amply” supported the IJ’s adverse
credibility finding.
Where the BIA affirms an IJ’s order, the IJ’s decision constitutes the final
decision of the BIA. Giday v. Gonzales, 434 F.3d 543, 547 (7th Cir. 2006). We will
affirm the BIA’s decision if it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Margos v. Gonzales,
443 F.3d 593, 597 (7th Cir. 2006). We may overturn an IJ’s credibility
determination only under extraordinary circumstances, when the determination is
not supported by “specific, cogent reasons that bear a legitimate nexus to the
finding.” Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006).
In his brief, Sow challenges only two of the six reasons given by the IJ for
finding him not credible. This is problematic for Sow because the four unchallenged
reasons, if supported by the record, would be enough for this court to uphold the
credibility determination. Id.; see also Krouchevski v. Ashcroft, 344 F.3d 670, 672-
73 (7th Cir. 2003) (upholding IJ’s credibility determination where petitioner focused
on only one of three reasons given for determination). However, because the
reasons challenged by Sow are also supported by the record, we address only those
two arguments.
Sow first argues that the IJ should have found him credible because his
misstatements regarding the dates of his imprisonment did not go to the heart of
his claim. He admits that he “stumbled in his testimony about his first arrest,” but
argues that overall he was “quite firm in his testimony that the election and his
arrest occurred in 1998.”
No. 05-4042 Page 4
Adverse credibility determinations should be based not upon easily explained
discrepancies but rather upon issues that go to the heart of an applicant’s claim.
See Giday, 434 F.3d at 551. Where an IJ finds testimony not credible, the petitioner
must provide a convincing explanation of any discrepancies. Balogun v. Ashcroft,
374 F.3d 492, 500 (7th Cir. 2004). Sow does not explain why he twice stated that
his first arrest was in 1996. And, contrary to his assertions, Sow’s misstatements
do go to the heart of his claim. In order to credit Sow’s claim that he was
persecuted on account of his political opinion, Sow’s arrest and detention must have
occurred in 1998, when Conde was arrested, not in 1996. See Pop v. I.N.S., 270 F.3d
527, 531 (7th Cir. 2001) (inconsistency of dates valid basis for adverse credibility
determination where petitioner testified that persecution occurred two years earlier
than shown by documentary evidence). As a result, the IJ did not err in relying on
Sow’s inconsistent testimony about the dates of his detention as part of his adverse
credibility determination. See Balogun, 374 F.3d at 504 (accepting IJ’s
determination that petitioner was not credible where IJ “justifiably set [his]
misrepresentations against the backdrop of the whole record”).
Sow next argues that the IJ erred when he denied Sow’s claim based on his
failure to provide corroborating evidence. He notes that evidence is not required
when a petitioner relies primarily on personal experiences not subject to
verification, and argues that he was in no position to gather evidence while he was
“fleeing the country after the second of his horrendous terms of imprisonment.”
“The testimony of the applicant, if credible, may be sufficient to sustain the
burden of proof without corroboration.” 8 C.F.R. § 208.13(a). So long as a
petitioner’s testimony is specific, detailed, and convincing, corroborating evidence is
not required. See Dawoud v. Gonzales, 424 F.3d 608, 612 (7th Cir. 2005).1 It is
appropriate, however, to ask for corroboration “in the common situation when the IJ
has some doubt about an applicant’s credibility.” Id. at 613. For example, an IJ
may require corroboration when he determines the petitioner’s testimony is
incredible or not sufficiently specific or detailed. See Balogun, 374 F.3d at 500. The
corroboration requirement must be employed reasonably, and an IJ cannot require
corroboration of immaterial facts or evidence when it is not reasonably accessible.
Id. at 502-03; In re S-M-J-, 21 I. & N. Dec. 722, 725, 1997 WL 80984 (BIA 1997).
1
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, signed into law
on May 11, 2005, allows an IJ to require a credible applicant to provide corroborating
evidence in certain circumstances, id. § 101(a)(3)(B)(ii); see Dawoud, 424 F.3d at 613.
However, this act does not apply to Sow because he filed his asylum application before
May 11, 2005. Pub. L. No. 109-13 § 101(h)(2); see Dawoud, 424 F.3d at 613.
No. 05-4042 Page 5
Here, the IJ was justified in seeking corroboration. The IJ found that
additional evidence was necessary because Sow’s testimony was vague and he
provided few details regarding his activities for the RPG or his detentions.
Although Sow asserted at oral argument that his testimony was not vague or
lacking in detail, he did not raise this argument in his brief and thus it is waived.
Asere v. Gonzales, 439 F.3d 378, 381 (7th Cir. 2006). In addition, evidence material
to Sow’s involvement with the RPG and his claims of persecution was reasonably
accessible. Sow does not argue that the evidence the IJ sought—documents or
affidavits from his wife and sister who live in Guinea, medical records regarding his
treatment after he was stabbed in detention, and documents from the RPG’s office
in New York—was not material to his claim, did not exist, or that the IJ was
unreasonable in expecting him to provide these types of documents. Finally,
contrary to Sow’s assertions, he did not flee Guinea immediately after his release
from detention and thus had adequate time to gather documents to support his
asylum claim. Sow was detained for two months, beginning in September 2000, but
testified that he did not leave Guinea until June 2001, approximately six months
after his release.
Finally, Sow argues that the BIA erred in not examining whether his past
persecution created a presumption that he was eligible for asylum or whether the
punishment he suffered was so unconscionable that he qualified for a favorable
exercise of discretion pursuant to Matter of Chen, 20 I. & N. Dec. 16, 19, 1989 WL
331860 (BIA 1989) (holding that persons who “suffered under atrocious forms of
persecution” should not be expected to repatriate even if there is little threat of
future persecution). But because the IJ did not find that Sow had experienced past
persecution, there is no presumption that he will be persecuted in the future. And
Sow has not shown that he experienced an atrocious form of persecution that would
support a favorable exercise of discretion from the BIA.
Because the IJ’s conclusion that Sow did not experience persecution is
supported by substantial evidence and because Sow has not shown that he is
eligible for asylum based on his fear of future persecution or a favorable exercise of
discretion, we DENY his petition for review.