Soumare, Oumar v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2405
O UMAR S OUMARE,
Petitioner,
v.
M ICHAEL B. M UKASEY,
Attorney General of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A97-119-672
____________
A RGUED F EBRUARY 26, 2008—D ECIDED M AY 8, 2008
____________
Before K ANNE, S YKES, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. Oumar Soumare, a native and
citizen of Guinea, petitions for review of a final order of
removal issued by an Immigration Judge (IJ) and affirmed
by the Board of Immigration Appeals (BIA). The IJ denied
Soumare’s application for asylum and withholding of
removal after determining that Soumare had not met
his burden of proof through credible testimony or cor-
roborating evidence. Because the record supports the IJ’s
adverse credibility determination and his decision to
require corroboration, we deny Soumare’s petition.
2 No. 07-2405
I. H ISTORY
Soumare entered the United States in March 2003 at
Miami, Florida. In July 2003, Soumare, who was not yet
in immigration proceedings, filed an application for
asylum and withholding of removal based on his political
opinion. In this first application, Soumare stated that in
1998 he was “harmed and mistreated” by members of the
Guinean ruling party because of his political activities.
Specifically, Soumare claimed that he and his family had
been “arrested[,] interrogated, convicted and sentenced”
for financing rebels, though they had not had done so.
In response to the application, an asylum officer inter-
viewed Soumare, see 8 C.F.R. § 1208.9, and after deter-
mining that Soumare was inadmissible, referred his
application to the Executive Office of Immigration Review,
see id. § 1208.14(c)(1). As a result, Soumare received a
notice to appear in September 2003, see id. § 1208.19,
which initiated removal proceedings against him be-
cause he was present in the United States without being
admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i).
During his immigration proceedings, Soumare con-
ceded that he was removable as charged in the notice to
appear, and in May 2004, Soumare, with the assistance of
his attorney, filed a new application for asylum and
withholding of removal. In this second application,
Soumare claimed eligibility for asylum based on his
political opinion, nationality, and membership in the
Rally for the Guinean People (“RPG”), the main demo-
cratic opposition political party in Guinea. Soumare’s
application did not identify RPG by its full name; rather,
he identified it only by the initials, “RPG.”
Soumare appended to his second asylum application
a type-written statement that elaborated the alleged
No. 07-2405 3
mistreatment he suffered at the hands of the ruling
Guinean authorities. The statement alleged that (1) in
1996, supporters of the ruling party “looted and de-
stroyed” Soumare’s father’s stores; (2) in 1998, his brother,
who managed the family businesses, was taken from the
family home and then detained, interrogated, and beaten
for one month, on the suspicion that the family financed
rebels with proceeds from their businesses—his brother
then fled to Senegal; (3) soon after the incident with his
brother, government officials arrested Soumare in the
middle of the night, and he too was detained, inter-
rogated, and beaten for one week thereafter; and (4) in
November 2001, Soumare was again arrested for sup-
porting RPG, and he was held until February 2003—during
this fifteen-month span Soumare was “severely beaten
and tortured” in prison in Conakry. Soumare did not
submit any other supporting documents with his asylum
applications.
In early December 2004, Soumare testified (through an
interpreter) before the IJ. At the outset, Soumare attested
that his asylum applications were complete and accurate,
and he and his counsel declined the IJ’s invitation to
correct or supplement the applications. Soumare then
testified about his asylum claim. He stated that he feared
returning to Guinea because he and his entire family,
including his father and brothers, were members of
RPG. Soumare claimed that he attempted to recruit mem-
bers for RPG on nights and weekends from 1995 to 2001,
and in exchange, RPG promised him a “good position” in
their new government once they took power. Soumare
could not state how many hours he spent recruiting for
RPG, or how many people he was able to recruit to the
party. When asked by the IJ what RPG stood for, Soumare
4 No. 07-2405
could not state the party’s name—he first uncertainly
called it the “Assembly or Reassembly, Popular of Guinea,”
then stated it was the “Assembly of the People of Guinea.”
Soumare also testified about the alleged persecution
that he and his family suffered as a result of their participa-
tion in RPG. Soumare explained that his family’s busi-
nesses were looted and vandalized by government offi-
cials. But in his hearing testimony, Soumare initially
claimed that the stores were vandalized in 1998, not in 1996
as he had written in his application. Soumare testified that
he took over managing his father’s businesses after his
brother fled to Senegal in 1998, and Soumare stated that
he closed the stores in 1998 to avoid further accusations
that the profits were being used to finance rebels. The IJ
attempted to clarify when the stores were looted by asking
Soumare whether he was managing the stores when the
looting occurred. However, this colloquy did not produce
a coherent answer.
Soumare’s testimony deviated from his written
asylum applications in other respects. Despite Soumare’s
statement in his first asylum application that he had been
“harmed and mistreated” because of his membership
in RPG in 1998, and despite the statement in his second
asylum application that he had been arrested, detained
for one week, and beaten in 1998, Soumare testified at
his hearing that only his brother was arrested in 1998;
he stated that the government did not bother him until
he was arrested in November 2001. Soumare reiterated,
in response to several questions at his hearing, that he
was arrested only once, on November 3, 2001, for
allegedly financing rebels. When asked on cross-exam-
ination about the inconsistency between his hearing
testimony and his asylum applications, Soumare did not
No. 07-2405 5
stand by the written statements in his applications;
rather, he stated that his applications must have been
incorrectly transcribed where they indicated that he had
been mistreated, arrested, and tortured in 1998. On cross-
examination, the government also asked Soumare about
the claim in his first asylum application that he and his
family had been “arrested, interrogated, convicted, and
sentenced” for financing rebels. In response, Soumare
testified he was never convicted and that he “never went
to court.” He testified that he was never formally charged
and never went before a judge.
During Soumare’s testimony, Soumare’s counsel tried to
introduce an RPG membership card into evidence to
corroborate Soumare’s story. Soumare had not provided
the card to his counsel until the date of the hearing.
Consequently, the card had not been filed ten days prior
to the hearing as required by the immigration court’s
local operating rules. See Sanchez v. Keisler, 505 F.3d 641,
645 (7th Cir. 2007). The IJ noted that the card had not
been timely filed, see 8 C.F.R. § 1003.31(c), that the card
had not been properly served upon the government
prior to the hearing, see id. § 1003.32(a), and that the card
was not in English and had not been translated by a
certified translator, see id. § 1003.33. Because of these
deficiencies, the IJ would not admit the card into the
record. However, the IJ allowed Soumare to testify about
the card.
After considering Soumare’s testimony and asylum
applications, as well as country reports on Guinea sub-
mitted by the government, the IJ issued a written decision
in September 2005. The IJ noted that Soumare’s hearing
testimony was not “particularly specific or detailed.” The
IJ then acknowledged that Soumare ratified his asylum
6 No. 07-2405
applications at the outset of his hearing, and “at least two
significant discrepancies became apparent.” First, Soumare
testified to only one instance of physical mistreatment,
in 2001, despite claiming in both of his asylum applica-
tions that he had also been mistreated in 1998; the IJ
rejected Soumare’s explanation that the applications had
been improperly transcribed because Soumare’s second
asylum application was prepared with the assistance of
his attorney, and “[n]o corrections were made at the
outset or during the hearing.” Second, Soumare testified
that he had never been convicted—or even appeared in
court—though his first asylum application stated that he
and his family had been convicted for financing rebels.
Soumare never explained this disparity between his
hearing testimony and his asylum applications. The IJ
noted that these inconsistencies were “significant inas-
much as they are directed towards the heart of his
claim . . . . Moreover, they do not assert new facts, rather
quite the opposite (e.g. they are retractions of statements
made in his application).”
The IJ concluded that, because of the inconsistencies,
Soumare had not met his burden of proof through cred-
ible testimony. After expressly making this finding, the
IJ stated that it would be reasonable to require corrobora-
tion from Soumare. The IJ found that Soumare had not
corroborated his claim, nor had Soumare explained the
absence of some form of corroboration, such as docu-
mentation relating to his family businesses. The IJ ex-
plained that Soumare’s unauthenticated and untranslated
RPG card, even if admitted into evidence, “would not
corroborate the primary aspects of his claim, nor does
the record support the conclusion that he reasonably
fears persecution solely by virtue of his RPG member-
No. 07-2405 7
ship.” Consequently, the IJ denied Soumare’s applications
for asylum and withholding of removal because Soumare
had failed to advance a credible claim for asylum, and
the IJ ordered Soumare removed to Guinea. In May 2007,
the BIA affirmed the IJ’s decision without issuing an
opinion. Soumare timely filed his petition for review
with this court in June 2007.1
II. A NALYSIS
In his petition for review, Soumare challenges the IJ’s
determination that he did not testify consistently and
credibly. Soumare also contends that the IJ improperly
required him to present corroborative evidence to sup-
port his testimony. Soumare claims that his uncorrobo-
rated testimony was sufficient to establish a well-founded
fear of persecution if he returns to Guinea, based upon
his past experience.
Because the BIA summarily affirmed without an opin-
ion, we review the IJ’s factual findings and analysis for
1
On the same day Soumare filed his petition for review
with this court, Soumare’s counsel also filed a motion to recon-
sider his claim with the BIA. Soumare’s motion to reconsider
raised the same objections to the IJ decision as Soumare does
here. In July 2007, we granted a motion by the Government
to hold this case in abeyance until the BIA decided Soumare’s
motion to reconsider. The BIA rejected Soumare’s motion to
reconsider in August 2007. Soumare never filed a new peti-
tion for review of his motion to reconsider, and never argued
that motion in his brief or at oral argument in this case. There-
fore, only the BIA’s affirmance of the original IJ decision is
before this court.
8 No. 07-2405
substantial evidence. Haxhiu v. Mukasey, 519 F.3d 685, 690
(7th Cir. 2008); Sina v. Gonzales, 476 F.3d 459, 461 (7th
Cir. 2007). With respect to an IJ’s credibility determina-
tion, we perform a highly deferential review, “in which
we ‘look for substantial evidence’ and ‘specific, cogent
reasons that bear a legitimate nexus to the IJ’s finding.’ ”
Sina, 476 F.3d at 461 (quoting Doumbia v. Gonzales, 472
F.3d 957, 963 (7th Cir. 2007)). Given the high level
of deference, “ ’[w]e will not overturn adverse credibility
determinations simply because the evidence might sup-
port an alternate finding.’ ” Song Wang v. Keisler, 505 F.3d
615, 620-21 (7th Cir. 2007) (quoting Kllokoqi v. Gonzales, 439
F.3d 336, 341 (7th Cir. 2005)). We will uphold adverse
credibility determinations unless the record compels a
different conclusion. See Tarraf v. Gonzales, 495 F.3d 525,
532 (7th Cir. 2007).
In order to establish his claim for asylum, Soumare bore
the burden of proving that he was unable or unwilling
to return to Guinea because of a well-founded fear of
persecution, on account of his political opinion, nationality,
or membership in a particular social group. See Sina, 476
F.3d at 461-62; Bejko v. Gonzales, 468 F.3d 482, 484 (7th Cir.
2006); see also 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a).
If Soumare cannot meet his burden of proof for his asylum
claim, it necessarily follows that he cannot make the “more
stringent” showing required to prove his withholding-of-
removal claim. Shmyhelskyy v. Gonzales, 477 F.3d 474, 481
(7th Cir. 2007).
Because the IJ expressly found that Soumare’s testimony
was not credible, Soumare needed to provide either a
convincing explanation of the discrepancies between his
testimony and asylum applications, or evidence corrobo-
rating his testimony, in order to meet his burden of proof.
No. 07-2405 9
See Aung v. Gonzales, 495 F.3d 742, 746 (7th Cir. 2007); Sina,
476 F.3d at 462; Capric v. Ashcroft, 355 F.3d 1075, 1086
(7th Cir. 2004). Before an IJ may deny a claim for insuf-
ficient corroboration, the IJ must (1) make an explicit
credibility finding; (2) explain why it is reasonable to
expect additional corroboration; and (3) explain why the
alien’s explanation for not producing that corroboration
is inadequate. See Tandia v. Gonzales, 487 F.3d 1048, 1054-
55 (7th Cir. 2007); Ikama-Obambi v. Gonzales, 470 F.3d 720,
725 (7th Cir. 2006). “[T]he importance of corroboration
depends in part on the degree of specificity and detail
in a petitioner’s story.” Gontcharova v. Ashcroft, 384 F.3d
873, 877 (7th Cir. 2004).
Based on the record, we believe that substantial evidence
supports the IJ’s finding that Soumare did not testify
credibly. Soumare’s testimony was not detailed, and it
contradicted his asylum applications. See Capric, 355
F.3d at 1085 (“A credibility analysis assesses the applicant’s
claim only for internal consistency, detail, and plausi-
bility, . . . .”). Soumare testified that he worked for RPG
for six years, but could not recall what the letters RPG
stood for, nor could he provide an approximation of how
many people he recruited for RPG or the names of any
individuals he recruited into the organization. Soumare
could not definitively state when his father’s store was
vandalized or whether he or his brother managed the
store at the time of the vandalism—even though Soumare
claimed that he and his family were targeted by the
Guinean regime because of suspicions that the income
from the family business was being redirected to the rebels.
Most crucially, Soumare testified to suffering only one
incident of physical mistreatment commencing on Novem-
ber 3, 2001. But both of his asylum applications stated that
10 No. 07-2405
he was mistreated in 1998; Soumare’s second application
detailed that in 1998 he was arrested, detained, and
tortured for a full week. Soumare also wrote in his
asylum applications that he and family members had
been “convicted and sentenced” for funding the RPG
rebels, but during his testimony he stated that he never
appeared before a judge or in a court. The IJ reasonably did
not credit Soumare’s explanation for his conflicting
testimony—that his application had been improperly
transcribed—because Soumare prepared his second asylum
application with the assistance of counsel. And, the IJ noted
that the discrepancies were not minor deviations; Soumare
retracted major events that went to “the heart of his claim.”
We completely understand why the IJ was skeptical when
Soumare recanted his previous allegations that he was
beaten and tortured for a full week in 1998, and when he
reneged on his claim that he and his family had been
convicted for their political activities.
After explicitly finding that Soumare had not met his
burden of proof through credible testimony, the IJ properly
demanded that Soumare corroborate his imprecise
story. See Eke v. Mukasey, 512 F.3d 372, 381 (7th Cir. 2008);
Aung, 495 F.3d at 746. But Soumare did not present any
corroborating evidence apart from an untimely filed,
untranslated RPG membership card. The IJ explained his
reasons for refusing to admit the card, and stated that
irrespective of its inadmissibility, the card could not
sufficiently corroborate Soumare’s testimony because the
record did not establish that he feared persecution based
solely on his RPG membership. The IJ noted that it was
reasonable to expect Soumare to produce some form of
corroboration, such as affidavits of third parties, or evi-
dence relating to the family-run business that resulted
No. 07-2405 11
in backlash from the Guinean regime. The IJ also ex-
plained that Soumare made no effort to explain the ab-
sence of corroborating evidence. We see nothing in the
record that leads us to doubt the IJ on these points.
The IJ outlined specific, cogent reasons that support his
adverse credibility determination, see Sina, 476 F.3d at
461, and he explained why corroboration was necessary
but absent, see Eke, 512 F.3d at 381. Because Soumare
failed to prove his asylum claim, his withholding-of-
removal claim fails a fortiori. See Shmyhelskyy, 477 F.3d
at 481.
III. C ONCLUSION
We therefore D ENY the petition for review.
USCA-02-C-0072—5-8-08