Noumou Bah, Amadou 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UNPUBLISHED ORDER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 August 31, 2005*
Decided September 1, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-2118
AMADOU NOUMOU BAH,
Petitioner, Petition for Review of an Order of the
Board of Immigration Appeals
v.
No. A95-378-223
ALBERTO GONZALES,
Respondent.
ORDER
Amadou Noumou Bah fled his home country, Guinea, using a false Zambian
passport and applied for asylum five months after arriving in the United States,
claiming that he had been persecuted for his involvement with the opposition
political party known as the “Rally of the People of Guinea” (RPG). The IJ found
Bah’s testimony not credible and denied his application; the BIA summarily
affirmed. Bah argues that the IJ’s credibility finding is not supported by
substantial evidence and that the IJ improperly discredited his testimony by
focusing on his illegal entry into the United States. We deny his petition.
*
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. 04-2118 Page 2
Bah claimed that he joined the RPG in 1994 in the capacity as “group leader.”
In 1998 he claimed that he was persecuted when he was arrested for protesting the
government’s destruction of certain houses. His details are vague, but he described
the houses as “sort of owned by the opposition,” which presumably includes
opposition parties such as the RPG. Bah was not one of the homeowners whose
house was threatened. He testified that government officials held him accountable
for the protest because he was a known member of the RPG, and the RPG was
“helping the people actually save those houses.” During his six months in
detention, he claimed that he was “beaten” and “wasn’t given food,” but apparently
his family was permitted to bring him meals.
In 2000, two years after his release, he testified that he was arrested again,
this time for demonstrating against the majority party (Party for Unity and
Progress)—which he believed had rigged the outcome of a local election—and was
charged with “encouraging youths to protest against the government, destruction of
state property, and trying to create ethnicity.” He was held for a year without a
trial and testified that during this period he was “tied up. They would beat me up.
The party would just tie me up and leave me there as tied, and I would just sleep
overnight like that.” Bah was finally released after his employer and family bribed
the officials who were holding him.
After his release from prison in July 2001, Bah testified, his brother gave him
a false Zambian passport and visa with his picture but bearing a false name.
According to Bah, his brother also bribed someone at the airport to help facilitate
his departure from Guinea. Bah added that it was important for him to leave
Guinea shortly after being released from prison because, if he stayed, his family
was “afraid that [he] would be killed.” He did not testify about his own fear of
remaining in Guinea, but he noted in his asylum application that his life was in
danger there.
The IJ denied Bah’s petition for asylum, finding his testimony incredible.
The IJ did not believe that Bah was a political leader because he could not
adequately describe his duties as a “group leader” for the RPG. Nor did the IJ
credit Bah’s testimony that he was ever imprisoned; Bah did not testify that he
owned a house the government sought to destroy, did not contend that the RPG
were “active participants in the demonstration” against the government’s razing of
homes, and did not corroborate his claims that he participated in the
demonstrations against the 2000 elections. The IJ also pointed out discrepancies
between Bah’s testimony at the hearing about the harm he suffered in prison in
2001 and the account he set forth in his asylum application. Lastly, the IJ
discredited Bah’s overall testimony in part based on his use of a false passport to
enter the United States.
No. 04-2118 Page 3
On appeal, Bah reasserts that his prior arrests and detentions constitute
past persecution and that his claims are supported by “corroborative evidence,
country background and the testimony.” Bah argues that substantial evidence does
not support the IJ’s adverse credibility determination because the IJ improperly
focused on his unlawful entry into the United States rather than his testimony
about past persecution.
An asylum applicant has the burden of establishing eligibility by credibly
showing that he suffered past persecution or has a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b); Brucaj v. Ashcroft, 381 F.3d 602, 606-07 (7th
Cir. 2004). If the IJ finds that the applicant has not met his burden, we must
uphold the finding as long as it is supported by reasonable, substantial, and
probative evidence. Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).
Credibility determinations are questions of fact that we may overturn only under
extraordinary circumstances, specifically, when the determination is not supported
by “specific, cogent reasons” bearing a “legitimate nexus to the finding.” Id.(internal quotes not included).
Here, the IJ adequately supported his adverse credibility determination with
specific and cogent reasons. Specifically, the IJ questioned Bah’s claim of being a
“group leader” for the RPG who was persecuted for his political involvement. The IJ
properly found that Bah’s testimony was not sufficiently detailed or corroborated to
believe that he was an active participant in either the protests in 1998 or the
election demonstrations in 2000. All Bah testified to regarding his role as “group
leader” was his attendance at some RPG meetings and his counseling of youth to
help grow the RPG movement, and this testimony does not sufficiently show a level
of involvement with the RPG to establish that Bah was persecuted on account of his
political opinion. The IJ also questioned Bah’s credibility in light of his using a
falsified passport to gain entry into the United States; without more this would not
be a proper basis for an adverse credibility determination, see Kaur v. Ashcroft, 379
F.3d 876, 889 (9th Cir. 2004), but here the IJ noted this circumstance as one of
many factors that undermined Bah’s overall trustworthiness.
Lastly, for the first time on appeal, Bah argues that the IJ improperly
applied the “substantial evidence” standard in reviewing his asylum application and
instead should have applied the “clearly erroneous” standard. But as the
government asserts, Bah waived this claim because he did not first present it to the
BIA. 8 U.S.C. § 1252(d)(1); Abdelqadar v. Gonzales, 413 F.3d 668, 670-71 (7th Cir.
2005).
The petition for review is DENIED.