Kodjo Kegeh v. Jefferson B. Sessions, III , 865 F.3d 990 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2554
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Kodjo Kegeh, also known as Jean-Paul Christian Kegeh
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 7, 2017
Filed: July 31, 2017
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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Kodjo Kegeh applied for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). The Immigration Judge (IJ) denied all three
applications. Kegeh appealed to the Board of Immigration Appeals (BIA), which
affirmed the IJ’s decision. Kegeh petitions for review, arguing that the IJ and the BIA
erred in denying his applications. We deny the petition because Kegeh has failed to
meet his burden: to show that any reasonable adjudicator would be compelled to find
in his favor.
I.
Since 1969, the West African nation of Togo has been governed by a single
national political party. After the death of the previous president in 2005, Faure
Gnassingbe became president by military fiat. In April of that year, a presidential
election was held. Gnassingbe was elected president, but the election process was
marred by irregularities and violence. Under pressure from the international
community to change, President Gnassingbe and members of some opposition parties
signed the Global Political Agreement (GPA) in 2006. One opposition party, the
UFC, declined to join. Kodjo Kegeh was a member of the UFC.
Kegeh is a citizen and native of Togo, and his native language is French. He
was admitted to the United States as a nonimmigrant visitor on March 1, 2011, with
permission to remain here until August 31, 2011. He did not leave by that date and
has remained in this country ever since. In late 2011, he submitted applications for
asylum, withholding of removal, and protection under the CAT to the Department of
Homeland Security’s United States Citizenship and Immigration Services (USCIS).
Kegeh’s application was accompanied by an affidavit. His attorney helped him
prepare both documents. According to Kegeh, he prepared both documents in
French, and then his French was translated into English. The English translation was
then read back to him in French. Kegeh stated that he was aware of what was in his
application and affidavit.
In February 2012, an asylum officer from USCIS interviewed Kegeh. Later
that month, USCIS referred Kegeh to removal proceedings before an IJ after
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concluding that Kegeh lacked credibility and provided testimony inconsistent with
his affidavit. Removal proceedings then began pursuant to 8 U.S.C. § 1227(a)(1)(B).
A.
At hearings before an IJ, Kegeh testified that he represented the UFC at a poll
station during the April 2005 presidential election. After the voting closed and the
ballots were being counted, military forces appeared and violence broke out. Kegeh
testified that soldiers started beating people and using tear gas on them, but he did not
mention soldiers shooting or using real bullets.
When the election results were announced two days later, and Gnassingbe was
elected president, Kegeh and other members of the UFC protested. Kegeh testified
that the military came to the protest armed with guns but did not use them against the
protestors.
A short while later, Kegeh and others were kidnapped by the military. Soldiers
took him into a military barracks where he was subjected to severe physical abuse.
The next day, he and the others were driven out to a field. The beatings began again,
and Kegeh fell unconscious. He testified that the next memory he had was waking
up in a clinic with severe burns on his chest and torso. Kegeh avers that the military
set him and the others on fire after the beatings. Villagers found him barely alive and
took him to the clinic. In a 2012 letter purportedly from Kegeh’s wife but written by
a pastor in Togo, she confirms that Kegeh was beaten and burned in April 2005. At
the hearing, Kegeh began to lift his shirt to reveal the extent of his burns. The IJ
informed him that this was unnecessary as she already had pictures of the burns. She
also gave him the chance to describe his injuries for the record.
Following the 2005 events, Kegeh left Togo for two years, but then returned.
In 2010, new elections were held in Togo. Kegeh testified that he did not engage in
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any political campaigning before the 2010 elections. He testified that he was
involved in “pre-campaigning” to inform people of his party’s program. He left Togo
for the last time after an event preceding the 2010 elections. Kegeh testified that he
was at a soccer game when a police officer approached him and several others with
a “really juicy assignment.” The officer handed him four bags and asked the group
to take the bags to party headquarters in exchange for a large sum of money. Kegeh
opened the bags and found guns, grenades, and other military articles. He assumed
this was a plot by the military to frame him and other party members for possessing
dangerous weapons. He threw the bags away and fled the country. Kegeh testified
that soldiers came looking for him at his family’s home in Togo in 2012 and
physically assaulted his daughter.
B.
After two days of hearings, the IJ ruled against Kegeh on the ground that he
lacked credibility. This credibility finding was rooted in numerous inconsistencies
between Kegeh’s testimony and the record, the implausibility of certain events, and
a lack of corroborating evidence. The IJ found that the inconsistencies in Kegeh’s
story went directly to the underlying basis for his asylum claim.
For example, Kegeh had testified that no shooting occurred at the poll station
the day of the 2005 presidential election. But in his affidavit he claimed the military
used real bullets that day. When confronted about this discrepancy, Kegeh did not
remember saying in his affidavit that real bullets were used. The asylum application
of Francisco Anthony, a fellow member of the UFC who was granted asylum by
USCIS in 2010, also contradicted Kegeh’s testimony.1 Anthony, purportedly a friend
and someone Kegeh speaks with every other week, claimed that he worked at the
same poll station in 2005 as Kegeh. Anthony claimed that the military opened fire
1
Kegeh offered Anthony’s asylum statement to support his own asylum claim.
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on the crowd, killing one UFC member. Kegeh testified that there were no shots fired
on the crowd. Kegeh also testified that he did not see Anthony at the poll station and
has never discussed the events of that day with Anthony during their biweekly phone
calls.
Kegeh also testified that the military did not use guns at the protests of the
election results two days later. But in his affidavit he claimed that the military used
real bullets that day. When the IJ tried to clarify this discrepancy, Kegeh’s responses
were vague and evasive.
Turning to the events of 2010, Kegeh testified that he did not take part in any
political campaigning. His affidavit, however, states that he actively participated in
door-to-door campaigning and whatever else was asked of him for the campaign.
Also in his affidavit, Kegeh claimed that the ruling party was actively manipulating
the electoral committee. When asked at the hearing if the electoral committee was
being manipulated, Kegeh claimed he did not know what the electoral committee was.
Further questions about what Kegeh had meant by “electoral committee” led to
confusing and vague answers. Next, Kegeh testified that he was at a soccer game
when the police officer had approached him with the bags of guns. But his affidavit
stated that he was on the campaign trail, not at a soccer game. Kegeh explained that
it was actually a campaign soccer tournament.
The IJ also found Kegeh’s testimony regarding his relationship with Anthony
to be implausible. For one thing, the IJ found that, if Anthony’s asylum statement
was true, then it was implausible for Kegeh not to have heard gunshots or learned of
the death of a fellow UFC member after the 2005 election. The IJ expressed doubt
that Kegeh had never discussed these events with Anthony. The court lastly noted
inconsistencies with Kegeh’s claim that he never spoke with Anthony about the burns
he received at the hands of the military. Later testimony revealed a brief exchange
where Kegeh and Anthony did discuss the burns between themselves.
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The IJ noted other inconsistencies in Kegeh’s testimony. Kegeh, who claimed
that he had been to the UFC’s headquarters many times, could not give the street
name of the headquarters. Kegeh also testified that the GPA was signed in 2007; it
was signed in 2006. There was also a discrepancy as to when soldiers physically
assaulted his daughter: Kegeh testified that the attack occurred in 2012 while his wife
stated that it happened in 2010.
The IJ also made an adverse demeanor finding. She noted that Kegeh became
fidgety anytime his relationship with Anthony was discussed and anytime he was
asked about his asylum interview and affidavit. Kegeh grew visibly agitated
whenever confronted with an apparent discrepancy.
Finally, the IJ found that Kegeh had not provided corroborating evidence of his
claims. Kegeh failed to provide the original French affidavits or offer an adequate
explanation as to why the originals were not available. This led the IJ to give little
weight to Kegeh’s justifications for errors or inconsistencies.
II.
Kegeh appealed the IJ’s order to the BIA, who affirmed the IJ’s conclusions.
“Both immigration decisions will be reviewed together whenever the BIA adopts and
affirms the IJ’s decision, but also adds reasoning of its own.” Arevalo-Cortez v.
Lynch, 829 F.3d 1022, 1026 (8th Cir. 2016). “We review questions of law de novo,
and we will reverse findings of fact only if the evidence is so compelling that no
reasonable fact finder could fail to find in favor of the petitioner.” Ali v. Holder, 776
F.3d 522, 526 (8th Cir. 2015) (internal quotation marks omitted). If the decisions of
the IJ and BIA are supported by substantial evidence in the record, we will affirm.
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“Under our immigration law, [t]he Attorney General has discretion to grant
asylum to a refugee, defined as an alien who is unable or unwilling to return to [his]
home country because of past persecution or a well-founded fear of future persecution
on account of race, religion, nationality, membership in a particular social group, or
political opinion.” Fesehaye v. Holder, 607 F.3d 523, 526 (8th Cir. 2010) (first
alteration in original) (internal quotation marks omitted). As amended by the REAL
ID Act of 2005, federal law places the burden on the petitioner to provide credible,
persuasive, and sufficiently specific evidence in support of his petition. See 8 U.S.C.
§ 1158(b)(1)(B)(i)-(ii).
“All applications for asylum and withholding of removal require a threshold
determination of the applicant’s credibility.” Garcia v. Lynch, 655 F. App’x 511, 514
(8th Cir. 2016) (per curiam) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)). “The IJ is in the
best position to make credibility findings because [she] sees the witness as the
testimony is given.” Fesehaye, 607 F.3d at 527 (alteration in original) (internal
quotation marks omitted). As a result, we must defer to the IJ’s credibility
determinations when the IJ provides specific, cogent reasons for her disbelief. See
Onsongo v. Gonzalez, 457 F.3d 849, 852 (8th Cir. 2006); see also Yu An Li v.
Holder, 745 F.3d 336, 340 (8th Cir. 2014) (“Such findings are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” (internal
quotation marks omitted)). “The combination of an adverse credibility finding and
a lack of corroborating evidence for the claim of persecution means that the
applicant’s claim fails, regardless of the reason for the alleged persecution.”
Averianova v. Mukasey, 509 F.3d 890, 895 (8th Cir. 2007) (internal quotation marks
omitted).
Kegeh argues that the IJ erred in its credibility findings either because (1) he
explained the inconsistencies, (2) the inconsistencies did not go to the heart of his
right to asylum, or (3) they did not enhance his claim for asylum.
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First, Kegeh claims he has offered sufficient explanations for some of his
inconsistent testimony. Kegeh points out that he explained the inconsistency about
when the GPA was signed in his hearing. His attorney asked him on the second day
of the hearing when the GPA was signed, and Kegeh responded that it was signed in
2006 but that he did not hear about it until 2007, thus explaining the inconsistency.
Kegeh has also offered medical records purportedly showing that his daughter was
attacked in 2012 as he testified to at his hearing.
Second, Kegeh argues that several inconsistencies in his testimony do not go
to the heart of his asylum petition. These inconsistencies include the name of the
street where party headquarters was located, any campaigning Kegeh might have
done prior to the 2010 election, and the use of different terms for the campaign soccer
tournament. Kegeh contends that “[a]n adverse credibility finding must be based on
issues that go to the heart of the applicant’s claim [and] cannot be based on an
irrelevant inconsistency.” Marikasi v. Lynch, 840 F.3d 281, 287 (6th Cir. 2016)
(internal quotation marks omitted). These inconsistencies, Kegeh continues, cannot
form the basis of an adverse credibility finding against him.
Finally, Kegeh alleges that the remaining inconsistencies in his testimony
failed to enhance his claim for asylum, and therefore were immaterial. These
inconsistencies included whether the military used real bullets against UFC members,
his confusion about what the electoral committee was, his lack of knowledge about
the murder of a UFC member, and inconsistencies with statements made by Anthony
in his asylum application. Kegeh argues that “if discrepancies cannot be viewed as
attempts by the applicant to enhance his claims of persecution, they have no bearing
on credibility.” See Ceraj v. Mukasey, 511 F.3d 583, 591 (6th Cir. 2007) (internal
quotation marks omitted).
Kegeh’s arguments fall short of the standard set forth under current federal
immigration law. First, “even where an applicant’s explanations are plausible, an
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agency is not required to accept the explanations if an alternative explanation is
reasonable.” Nadeem v. Holder, 599 F.3d 869, 873 (8th Cir. 2010) (citing Rafiyev
v. Mukasey, 536 F.3d 853, 857 (8th Cir. 2008)). Second, immigration law now
permits an IJ to base her credibility determination on the consistency of a petitioner’s
testimony and other written statements in the record, “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”
Yu An Li, 745 F.3d at 341 (internal quotation marks omitted); see also Slyusar v.
Holder, 740 F.3d 1068, 1072 (6th Cir. 2014) (acknowledging that the REAL ID Act
reversed prior law that required an inconsistency reach the heart of the matter when
making a credibility determination). “[E]ven ancillary inconsistencies in a
petitioner’s testimony support adverse credibility findings.” Slyusar, 740 F.3d at
1073. And the “cumulative effect” of multiple inconsistencies, even if not directly
material to the petition, can support a reasonable fact finder’s adverse credibility
determination. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
Third, several of the inconsistencies in his testimony do, in fact, go to the heart of his
petition. Kegeh claims that he has suffered persecution in the past and has a well-
founded fear of future persecution because of his political activities. Yet his
testimony revealed significant inconsistencies as to his political activities. For
example, a member of his political party was murdered the day of the 2005
presidential election, but Kegeh was not aware of this and apparently has never
discussed the events of that day with others who were aware. Kegeh also
contradicted himself as to whether the soldiers used real bullets. In his affidavit he
spoke of an electoral committee in Togo, but at the hearing expressed confusion
regarding what the electoral committee was. Even the minor inconsistencies or lack
of knowledge exhibited by Kegeh, such as failing to know the party headquarters’s
street address or what kind of campaigning he did before the 2010 election, provide
a fact finder reasonable doubt concerning the credibility of his claim of persecution
for political activities. See Turay v. Ashcroft, 405 F.3d 663, 668 (8th Cir. 2005) (“[I]t
is essential that the victim’s political opinion motivates the persecution.”).
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“We conclude the IJ’s credibility finding was supported by specific, cogent
reasons for disbelief, and we cannot say ‘any reasonable adjudicator would be
compelled to conclude to the contrary.’” Thu v. Holder, 596 F.3d 994, 999 (8th Cir.
2010) (quoting 8 U.S.C. § 1252(b)(4)(B)). Kegeh’s remaining arguments center on
his extensive burns,2 which he contends constitute proof of torture. The IJ, however,
did not find Kegeh’s testimony credible, as discussed above. Further, Kegeh testified
that he was unconscious and then woke up with burns on his body. He could only
surmise as to how he got the burns. Neither he nor the burns, therefore, could provide
evidence for a torture claim. The only corroborating evidence Kegeh offered for his
torture claim was a letter from his wife. But the IJ gave little weight to that letter,
because it was written in French and Kegeh’s wife does not speak French. For this
specific, cogent reason, we cannot say the IJ erred in affording little weight to the
letter. See Fesehaye, 607 F.3d at 527-28. In the end, “substantial evidence supports
the denial of asylum.” Arevalo-Cortez, 829 F.3d at 1027.
III.
“When asylum, withholding removal, and CAT claims are based on the same
discredited testimony, the adverse credibility finding is fatal to all three claims.” Ali,
776 F.3d at 528 (internal quotation marks omitted). Accordingly, we deny Kegeh’s
petition for review.
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2
Kegeh complains the IJ prevented him from removing his shirt to reveal his
burns during the hearing. But, as stated previously, the IJ had pictures of the burns
taken by a physician. What she asked Kegeh to do was to describe his burns for the
official record, which lifting his shirt would have failed to accomplish. Because the
IJ considered all of the admitted evidence—including Kegeh’s medical reports and
photos— in making her decision, we see no error.
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