Diouwara, Zakaria v. Gonzales, Alberto R. ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 5, 2005*
Decided May 5, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 03-4185
ZAKARIA DIOUWARA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A95-390-939
ALBERTO R. GONZALES,
Attorney General of the United States
Respondent.
ORDER
Mauritanian citizen Zakaria Diouwara petitions pro se for review of the Board of
Immigration Appeals’ summary affirmance of an immigration judge’s adverse
credibility finding and denial of his application for asylum. The immigration judge
found Diouwara not credible largely because his oral testimony was inconsistent
with statements in his written application. We deny the petition for review.
Diouwara entered the United States in September 2001 on a temporary business
visa, and overstayed. At his asylum hearing, he explained that he did not
originally intend to stay, and that he came to “look at the market” for computers,
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 03-4185 Page 2
telephones, and copy machines, but that shortly after he arrived, he received
information that caused him to fear for his safety if he returned to Mauritania. He
testified that his mother called to say that the police had been to his house looking
for him, and that they said they had a “surprise” for him. She also said that they
had arrested his brother. Diouwara subsequently applied for asylum alleging
persecution on the basis of political opinion.
In his asylum application, Diouwara wrote that he feared he would be subject to
torture because of his connection to his brother-in-law who was reporting the
Mauritanian government’s human rights violations to Amnesty International; he
also claimed that his entire family was “seen as the enemy of the government due to
its connection with Americans.” He did not contend that he himself had engaged in
political activity, or been subject to arrest or detention, even in answer to questions
on the application that specifically asked about these things.
However, at the hearing before the IJ, he testified that he and his father and all
of his brothers were members of Action for Changement, a political party that
opposed the government, and that he had been arrested seven times in connection
with these activities. He also insisted that the Mauritanian government’s desire to
persecute his family arose more from vindictiveness toward his father for political
and racial reasons than from his brother-in-law’s political activities. When asked
why he had not mentioned his own political involvement or his arrests in his
written application, Diouwara said that the friend of his brother-in-law who
translated his application left out many details that Diouwara had intended to be
included. Diouwara also said that his brother-in-law’s friend assured him that he
would be able to explain things in more detail when he went before the immigration
court. Furthermore, Diouwara claimed that he mentioned to an immigrations
officer some of the things he left out of the application, but was told to reserve his
allegations for court.
The IJ noted the discrepancies between Diouwara’s asylum application and his
oral testimony and determined that Diouwara was not credible because his
explanations for the omissions in the application were not persuasive. The IJ went
on to conclude that, even if Diouwara were credible, he did not meet his burden of
establishing his eligibility for asylum. Among other things, he did not submit any
evidence to corroborate his alleged political participation with the Action for
Changement organization. The BIA affirmed this decision in a summary opinion.
Because the BIA did not attempt any independent analysis, we review the IJ’s
opinion directly. Tolosa v. Ashcroft, 384 F.3d 906, 908 (7th Cir. 2004); Krouchevski
v. Ashcroft, 344 F.3d 670, 671 (7th Cir. 2003). Our standard of review is a highly
deferential one: we ask whether substantial evidence supports the IJ’s
determination. Tolosa, 384 F.3d at 908. We will uphold the IJ’s decision as long as
No. 03-4185 Page 3
it is “‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole,’” id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)), which means that we may not overturn the decision unless no reasonable
factfinder could reach the same conclusion, Krouchevski, 344 F.3d at 673.
Moreover, we give “great deference” to the IJ’s judgment in matters of credibility.
Tolosa, 384 F.3d at 909. We will not disturb a credibility determination if it is
supported by “‘specific, cogent reasons’” with a “‘legitimate nexus to the finding.’”
Krouchevski, 344 F.3d at 673 (quoting Ahmad v. INS, 163 F.3d 457 (7th Cir. 1999)).
In this case, the issue of credibility is decisive. Since it is Diouwara’s burden to
show that he qualifies for asylum, he must convince the IJ of the truth of his claim;
otherwise, his case is doomed, see Uwase v. Ashcroft, 349 F.3d 1039, 1042 (7th Cir.
2003); Krouchevski, 344 F.3d at 673. Diouwara’s discursive brief, however, fails to
challenge any of the IJ’s findings, except to generally charge that the friend of his
brother-in-law who translated his application “did not interpret accurately [his]
history.” Indeed, he devotes most of his brief to alleging new facts, which in many
instances are inconsistent with statements he made in the asylum application and
at the hearing.1 But we may not entertain evidence that is not contained in the
administrative record. See 8 U.S.C. § 1252(b)(4); Podio v. INS, 153 F.3d 506, 511
(7th Cir. 1998).
The IJ’s adverse credibility finding is adequately supported by the record. As
the IJ noted, there are specific discrepancies between Diouwara’s statements in his
asylum application and his hearing testimony, namely, the omission in his
application of any allegation concerning his own political affiliation or his record of
arrests and detentions. Such inconsistencies cannot be considered “trivial,” see
Tolosa at 909; Capric v. Ashcroft, 355 F.3d 1075, 1089-90 (7th Cir. 2004) (finding
support for an adverse credibility determination in “inconsistencies go[ing] to the
heart of [the petitioner’s] claim”). Nor can Diouwara’s testimony at the hearing be
1
To cite only a few salient examples: he told the IJ that he was arrested for the
first time in 1995 when he joined the Action for Changement party, but he now claims
to have been arrested as early as 1986; he told the IJ he was only beaten the first time
he was arrested and thereafter held briefly without questioning and released, but in
his appellate brief he claims to have been interrogated and tortured; Diouwara told the
IJ that his father had been sick for two years before he died, but Diouwara now says
that his father died within a month of his release from a detention during which he
was beaten and starved; and he told the IJ he had taken over his father’s business and
was making enough money to send the children to private schools, but in his appellate
brief he says that the government took all his family’s possessions and destroyed his
home.
No. 03-4185 Page 4
understood as merely amplifying his previous statements, cf. Ememe v. Ashcroft,
358 F.3d 446, 453 (7th Cir. 2004). The IJ was entitled to treat “new factual
assertions” in that testimony as “substantial evidence that the applicant is not a
reliable and truthful witness,” see Oforji v. Ashcroft, 354 F.3d 609, 614 (7th Cir.
2003). Similarly, given his concerns about Diouwara’s credibility, the IJ was
entitled to conclude that Diouwara needed to corroborate his claims concerning his
own political activity and arrests. See Capric, 355 F.3d at 1086.
Because we uphold the IJ’s adverse credibility finding, we need not reach his
alternative holding that Diouwara failed to establish eligibility for asylum. We
DENY the petition.