Moab, Dominic v. Keisler, Peter D. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2710
DOMINIC MOAB,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A97-333-672
____________
ARGUED FEBRUARY 16, 2007—DECIDED SEPTEMBER 13, 2007
____________
Before FLAUM, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. In August 2005, Dominic Moab,
a twenty-seven year-old Liberian man, applied for asylum,
withholding of removal and protection under the Con-
vention Against Torture (“CAT”). An immigration judge
(“IJ”) held an individual hearing on October 27, 2005. In
his decision, rendered on January 18, 2006, the IJ denied
all relief. Mr. Moab timely appealed to the Board of Im-
migration Appeals (“BIA” or “Board”). On June 1, 2006, the
Board dismissed his appeal. For the reasons set forth in this
opinion, we grant the petition for review, reverse the
decision of the Board and remand the case for further
proceedings.
2 No. 06-2710
I
BACKGROUND
A.
Mr. Moab is a native and citizen of Liberia. On June 21,
2005, he arrived at O’Hare International Airport in Chi-
cago, Illinois and sought admission to the United States. At
the time of his arrival, he did not possess valid documents,
but requested the opportunity to present an application
for political asylum on Form I-589; such a request is
also considered a concurrent application for withholding
of removal under the Immigration and Nationality Act.
While at the airport, and later in a credible fear interview,
Mr. Moab stated that he had left Liberia because of the
civil war in that country and because he feared that, had
he remained, he would have been killed as the result of a
familial land dispute. On his subsequent application for
asylum, Mr. Moab added that he feared returning because
he was homosexual and had suffered beatings in Liberia
because of his sexual orientation.
In discussing his fear of returning to Liberia, Mr. Moab
described a land dispute with a man named Ubuoma, a
member of Mr. Moab’s extended family. Mr. Moab’s
immediate family and Ubuoma both claimed ownership of
a particular tract of land outside the village. Mr. Moab
found his father shot and killed on that land. Subsequently,
Ubuoma threatened to kill Mr. Moab if he ever returned
and challenged Ubuoma’s ownership of the farm.
Mr. Moab also described three specific beatings that he
allegedly had suffered because of his homosexuality. The
first occurred while he was playing football in his native
Liberia. Between ten and twelve young men beat him and
called him a “devil,” a term, according to Mr. Moab,
No. 06-2710 3
employed in Liberia to describe homosexuals. The second
incident was similar and occurred while Mr. Moab was
selling melons at the market. He became embroiled in an
argument and was beaten by eight other men. The third
incident occurred while he was sitting under a mango tree
with his boyfriend, a man named Gabriel. Some men from
his local village saw Mr. Moab sitting with Gabriel under
the tree. One of the men proceeded to say: “Let’s go do
something with Dominic so he cannot have something
like sex with the boy.” A.R. 47. Soon after, a group of
boys from the village, twelve in number, proceeded to
beat Mr. Moab with sticks.
Mr. Moab claims that, because of these occurrences, he
left Liberia for Sierra Leone, then went to Libya and
finally to Italy. Then, using a false passport and travel-
ing through Spain, he attempted to enter the United States.
He did not seek asylum in the other countries that he
visited between his departure from Liberia and his arrival
in the United States.
At his hearing before the IJ, Mr. Moab was asked why
he had failed to mention his homosexuality to the
immigration officers at the airport or to the examining
official during his credible fear interview. Mr. Moab
responded, “[n]o, because of this homosexual, every-
where I go, people discover that I’m homosexual. It’s
different, so sometimes I want to keep it, but I can’t keep
it.” A.R. 217. When asked if he was lying, he stated,
“[b]ecause I tell the truth about my problem. That’s why
I am running, but my—the homosexual, I didn’t tell her
about that because . . . everywhere . . . that’s why I want to
see my lawyer before . . . .” A.R. 219.
4 No. 06-2710
B.
In denying relief, the IJ determined that Mr. Moab had
not presented a credible claim in support of his application
and, consequently, had failed to meet his burden of proof.
The IJ articulated five bases for this adverse credibility
finding: (1) an inconsistency between Mr. Moab’s initial
interviews, in which he based his application on a fear
of returning to Liberia because of the civil war and a
fear that his neighbor would kill him over a land dispute,
and his later contention that his application was based on
a fear of persecution; (2) a discrepancy between his
asylum application that simply contained a general de-
scription of persecution based on homosexuality and his
detailed hearing testimony in which he gave an account of
three specific beatings based on his sexual orientation;
(3) an inconsistency based on his failure to seek, over eight
years, asylum in Sierra Leone, Libya, Italy or Spain; (4) a
contradiction between Mr. Moab’s statement that he did
not disclose his homosexuality because he did not speak
English and his later testimony, in English, at the hearing;
and (5) a similar inconsistency between his early claim
that he did not disclose his sexual orientation because
he did not speak English and his later asylum applica-
tion in which he indicated that he was fluent in English.
After remarking on Mr. Moab’s lack of credibility, the IJ
went on to state that, in any event, the beatings that
Mr. Moab allegedly had experienced in his hometown
because he was homosexual did not rise to the level of past
persecution. The IJ also determined that Mr. Moab had
failed to demonstrate a well-founded fear of future perse-
cution. Therefore, the IJ determined that Mr. Moab had
failed to meet his burden of proof even if his testimony
were credible.
No. 06-2710 5
Mr. Moab then appealed the IJ’s decision to the BIA. The
Board dismissed the appeal in a brief opinion. The BIA
discussed the IJ’s findings in a single paragraph:
Based on the provisions of the REAL ID Act, the
Immigration Judge properly considered the question-
able additions the respondent made to his asylum
application and his inconsistent account of why he was
applying for asylum before the asylum officer. We agree
with the Immigration Judge that it appears that as the
respondent’s claim progressed, his alleged account of harm
became markedly more egregious. Consequently, we
cannot find that the Immigration Judge’s adverse
credibility finding is clearly erroneous. Inasmuch as
the respondent has failed to present a credible claim,
we will find that he failed to meet his burden of proof
for asylum.
A.R. 2 (emphasis supplied).
The BIA then went on to state that because Mr. Moab had
failed to meet his burden with respect to his application
for asylum, he likewise had failed to meet the higher
standard required to establish eligibility for withholding
of removal. The BIA also stated that Mr. Moab did not
establish credibly that, more likely than not, he would
be tortured and thus was not eligible for protection under
the CAT. Finally, the BIA determined that the IJ’s use of
a video conference to conduct the proceedings did not
deny Mr. Moab a fair hearing. The Immigration and
Nationality Act and the applicable regulations specifically
authorize conducting these hearings through a video
conference; therefore, the Board concluded, the use of
video equipment was not improper.
6 No. 06-2710
II
DISCUSSION
We begin our analysis by addressing a threshold matter
that frames the task ahead of us. We must determine
whether, in the context of this case, the decision of the
BIA is free-standing, or must be considered as simply
supplemental to that of the IJ.1 When the BIA issues its
own opinion rather than adopting or merely supplement-
ing the opinion of the IJ, this court’s task is to review
only the opinion of the BIA. Liu v. Ashcroft, 380 F.3d 307,
311 (7th Cir. 2004). Typically, when the BIA issues a
decision, that decision becomes the basis for review. Zheng
v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005). We also have
stated that “absent the BIA adopting the findings of the
IJ . . . we review the determinations, including the cred-
ibility determinations, of the BIA, not the IJ.” Begzatowski
v. INS, 278 F.3d 665, 669 n.5 (7th Cir. 2002). On the
other hand, where the BIA’s decision merely supple-
ments the opinion of the IJ, “the IJ’s opinion, as supple-
mented by the BIA’s opinion, becomes the basis for
review.” Liu, 380 F.3d at 311.
We think it is clear in this case that the opinion of the
Board is free-standing and, therefore, must be the exclu-
sive focus of our review. The Board clearly engaged in
an independent analysis of the case. The BIA did not
adopt, expressly or by implication, the IJ’s findings. It
1
When the BIA adopts expressly the reasoning of the IJ, we
review the IJ’s analysis. See, e.g., Pop v. INS, 270 F.3d 527, 529
(7th Cir. 2001). The BIA’s opinion in this case contains no
language of express adoption, and, therefore, this reasoning
does not apply.
No. 06-2710 7
simply stated that it agreed with the IJ’s determination
that, as his case progressed, Mr. Moab’s claim of harm
became more egregious. Nor did the Board supplement
the IJ’s opinion. Rather, it approved of what it believed
the IJ’s reasoning to have been and, on that basis, dis-
missed the petition.
We are reminded that we may uphold the BIA’s deter-
mination to deny Mr. Moab’s petition for asylum, with-
holding of removal and CAT relief, “if at all, on the
same basis articulated in the order by the agency
itself . . . .” Slusher v. NLRB, 432 F.3d 715, 729 (7th Cir. 2005)
(citing SEC v. Chenery, 318 U.S. 80, 87-88 (1943) (“Chenery
I”)). The Supreme Court of the United States has admon-
ished, in Chenery I, that we may not sanction an agency
decision based upon the post-hoc rationalizations of
appellate counsel for the agency’s decision. Chenery, 318
U.S. at 87-88; see also Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168-69 (1962) (“Chenery requires that
an agency’s discretionary order be upheld, if at all, on
the same basis articulated in the order by the agency
itself.”). When Chenery I was again before the Supreme
Court in SEC v. Chenery Corp., 332 U.S. 194 (1947) (“Chenery
II”), the Court stated succinctly the fundamental rule of
administrative law discussed in Chenery I:
[A] reviewing court, in dealing with a determination
or judgment which an administrative agency alone
is authorized to make, must judge the propriety of
such action solely by the grounds invoked by the
agency. If those grounds are inadequate or improper,
the court is powerless to affirm the administrative
action by substituting what it considers to be a more
adequate or proper basis.
8 No. 06-2710
Id. at 196 (Chenery II). Therefore, if the BIA based its
conclusion upon an improper basis, we are powerless to
affirm that judgment.
The IJ premised his adverse credibility finding upon
five different aspects of Mr. Moab’s testimony, discussed
above. The bases for the IJ’s adverse credibility findings
resulted essentially from Mr. Moab’s failure to mention
his homosexuality when he appeared pro se at his air-
port and credible fear interviews, his submission of an
application for asylum that was not as detailed as his oral
testimony nor as the affidavit he had submitted in sup-
port of his application and the fact that the IJ found,
generally, that Mr. Moab’s testimony lacked sufficient
detail. The BIA simply stated that it “agree[d] with the
Immigration Judge that it appears that as [Mr. Moab]’s
claim progressed, his alleged account of harm became
markedly more egregious.” A.R. 3. The BIA also stated
that it agreed with the IJ that Mr. Moab had failed cred-
ibly to establish that he would more likely than not be
tortured if removed to Liberia.
We review the denial of a petition for asylum, withhold-
ing of removal and CAT protection for substantial evi-
dence. Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004).
We must therefore uphold a BIA’s decision if it is “sup-
ported by reasonable, substantial, and probative evidence
on the record considered as a whole.” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (internal citations and quotation
marks omitted). We shall overturn the BIA’s determina-
tion only where the evidence “compels” a contrary con-
clusion and not merely because we might have decided
the case differently. Capric, 355 F.3d at 1086.
The BIA premised its determination to dismiss Mr.
Moab’s appeal on the fact that, in its view, Mr. Moab’s
No. 06-2710 9
account of alleged harm became more egregious as his
case progressed. We believe the BIA misapprehended
the basis of the IJ’s opinion, failed to address any other
issues, and, therefore, is unsustainable. In our view,
while Mr. Moab failed to mention that he feared to re-
turn to Liberia due to his homosexuality at his airport
and credible fear interviews, his subsequent testimony
merely included mention of additional harms, rather
than any sort of increased egregiousness in the descrip-
tion of the harms themselves.
The BIA stated that Mr. Moab’s claim demonstrated
“increased egregiousness” because he had failed to men-
tion his homosexuality in his airport and credible fear
interviews. Mr. Moab explained his fear of returning to
his home country and requested asylum while at O’Hare
International Airport, and was detained subsequently
and charged with inadmissibility by the Department of
Homeland Security. He then had a credible fear inter-
view conducted by an asylum officer who determined
that a credible fear of persecution had been established. As
previously mentioned, Mr. Moab did not mention his
sexual orientation as contributing to this fear during
either interview.
We have stated that “airport interviews . . . are not
always reliable indicators of credibility.” Dong v. Gonzales,
421 F.3d 573, 579 (7th Cir. 2005). We analyzed these prelim-
inary interviews at some length in Balogun v. Ashcroft, 374
F.3d 492 (7th Cir. 2004), and favorably cited to a list of non-
exclusive factors set forth by the Second Circuit in
Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004).
In Ramsameachire, our colleagues on the Second Circuit set
forth the following factors for consideration in determin-
ing the reliability of an asylum applicant’s preliminary
interview:
10 No. 06-2710
First, a record of the interview that merely summarizes
or paraphrases the alien’s statements is inherently
less reliable than a verbatim account or transcript.
Second, similarly less reliable are interviews in which
the questions asked are not designed to elicit the
details of an asylum claim, or the INS officer fails to ask
follow-up questions that would aid the alien in devel-
oping his or her account. Third, an interview may be
deemed less reliable if the alien appears to have been
reluctant to reveal information to INS officials because
of prior interrogation sessions or other coercive experi-
ences in his or her home country. Finally, if the alien’s
answers to the questions posed suggest that the alien
did not understand English or the translations pro-
vided by the interpreter, the alien’s statements should
be considered less reliable.
Id. In Balogun, we stated additionally that where an
“applicant has a reasonable fear of governmental authority
(perhaps because the applicant recently has been sub-
jected to governmental abuse or coercion) . . . evasive
answers on the question of fear of persecution would not
be a reliable indicator of a true lack of fear.” Balogun,
374 F.3d at 505.
Considering the aforementioned factors, we note that
the record of Mr. Moab’s credible fear interview is “not a
verbatim transcript of [the] interview.” A.R. 264. Addition-
ally, because the record contains no transcript of the air-
port interview or credible fear interview, it is unclear
what, if any, follow-up questions were posed to Mr. Moab
during the course of these interviews. We also think it
reasonable that Mr. Moab would not have wanted to
mention his sexual orientation for fear that revealing
this information could cause further persecution as it had
in his home country of Liberia.
No. 06-2710 11
Taking into consideration our precedent regarding the
reliability of airport interviews, we cannot say that the
BIA’s determination that Mr. Moab’s claim became mark-
edly more “egregious” is based upon substantial evidence.
Mr. Moab’s asylum application is consistent with his
hearing testimony. In both his application for asylum
and at his hearing he discussed his fear to return to Liberia
as predicated upon the civil war, the land dispute in his
home country and the persecution he had suffered as a
result of his sexual orientation. Furthermore, Mr. Moab’s
account of the bases for his asylum request never became
more “egregious”; rather, he simply added an additional
harm: persecution based upon his sexual orientation.2 The
BIA’s determination that Mr. Moab’s account of harm
became more egregious, on this record, is not supportable.
Because we find that the BIA’s decision is not supported
by substantial evidence, we remand this case to the
Board for more plenary treatment.
2
In order to receive a grant of asylum, a refugee must demon-
strate a statutory eligibility for asylum and then demonstrate
that discretion should be exercised in his favor. INS v. Cardoza-
Fonseca, 480 U.S. 421, 443 (1987). One available method by which
a refugee may establish statutory eligibility for asylum is to
show that he has a well-founded fear of persecution based upon
membership in a particular social group. The Board of Immigra-
tion Appeals has recognized explicitly that homosexuality
qualifies as a “particular social group.” See Matter of Toboso-
Alfonso, 20 I & N 819, 822-23 (1990). The Attorney General
designated this decision to serve as “precedent in all proceed-
ings involving the same issue or issues.” Attorney General
Order No. 1895 (June 19, 1994).
12 No. 06-2710
Conclusion
Because the BIA’s determination is premised upon an
unsustainable basis, we grant the petition for review and
reverse the order of the Board of Immigration Appeals. The
petitioner may recover his costs in this court.
PETITION FOR REVIEW GRANTED
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-13-07