Koffi Mamana v. John Ashcroft ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2403
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Koffi Mamana, *
*
Petitioner, *
* Petition for Review of an Order
v. * of the Board of Immigration Appeals.
*
1
Alberto Gonzales, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: October 11, 2005
Filed: February 8, 2006
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Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Koffi Mamana petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming without opinion the decision of an Immigration Judge
(“IJ”) denying his application for asylum, withholding of removal, and protection
under Article III of the Convention Against Torture. We deny the petition.
1
Alberto Gonzales is substituted for his predecessor pursuant to Federal Rule
of Appellate Procedure 43(c).
Mamana, a native and citizen of Togo, arrived in the United States on
September 16, 2000, on a visitor’s visa. He was authorized to remain until December
16, 2000, but when he stayed in the United States beyond that date, the former
Immigration and Naturalization Service (“INS”) commenced removal proceedings
against him pursuant to 8 U.S.C. § 1227(a)(1)(B). In response, Mamana applied for
asylum, withholding of removal, and protection under the Convention Against
Torture, claiming that if he were returned to Togo, he would be persecuted on account
of his political opinion.
In support of his claims, Mamana testified that in October 1993, he joined the
Union Forces for Change (“UFC”), an opposition movement against General
Eyadema, the president of Togo since 1967. He was a private businessman in Togo,
repairing refrigeration equipment and selling used cars. Mamana claimed that in
March 1999, the current prime minister, Agbeyome Kodjo, who was then the director
of the port in Togo’s capital city, contacted him and asked him to help in a legislative
election by giving a speech. Mamana testified that when he refused, government
officials arrested him, took him to a house belonging to Kodjo, took off his clothes,
and threatened him with death if he did not comply with their commands. He said that
in May 1999, Kodjo made a second demand for him to read a motion at a political
rally. Mamana testified that after he refused again, four armed military men went to
his house looking for him, but that he was not home. Mamana said he then went into
hiding until a friend, who was a nephew of President Eyadema, helped to get him a
passport so that he could leave Togo in September 2000. According to Mamana, his
“second in command” took care of the business from after Mamana left Togo, until
the business closed in April 2001.
Mamana testified that between October 1999 and March 2000, his wife received
three subpoenas from the government, which directed Mamana to appear in
connection with a judicial investigation. Mamana assumed that the subpoenas were
designed “so that I should come in order to be killed.” (J.A. at 108). Mamana also
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provided an offer of proof in lieu of the testimony of Schadrach Dobley, stating that
Dobley knew Mamana in Togo, that Mamana was a member of the UFC, that many
atrocities had been committed in Togo, and that Dobley knew that President Eyadema
would want Mamana killed.
The IJ rejected Mamana’s application for asylum, withholding of removal, and
protection under the Convention Against Torture, finding that Mamana’s account was
not credible. The IJ found implausible and “not . . . believable at all” Mamana’s
assertion that he, a man with no “public reputation” and “no capacity to influence
others to persuade them to support the president’s party,” would be approached by the
government to assist with electioneering. The IJ further found unbelievable
Mamana’s claim that a high government official such as Mr. Kodjo, a member of a
party that had been in power for decades, would be dispatched to seek the election
assistance of Mamana, who did not even hold a position in the opposition party. In
addition to these observations, the IJ found that Mamana did not have “any proof from
any reliable source” that the events of March and May 1999 occurred. The IJ
concluded that the subpoenas ostensibly served on Mamana’s wife were of “dubious
authenticity,” but that even if they were authentic, the documents merely summoned
Mamana for questioning and did not endanger his life.
The IJ thought it “inconsistent” that Mamana would go into hiding from the
government between May 1999 and September 2000, but that a nephew of the
president would help him obtain a passport to leave the country. And the IJ
disbelieved Mamana’s claim that although he went into hiding in May 1999, he
continued to run his business up until the time he left the country, saying that this
course of action did “not sound like what a wanted man would do.” In summary, the
IJ found that “none of this has even either the sound, the substance, or the ring of
plausibility.” (J.A. at 70-71). The BIA affirmed the IJ’s decision without opinion.
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We lack jurisdiction to consider Mamana’s claim that the BIA should not have
employed the affirmance-without-opinion procedure in his case, Ngure v. Ashcroft,
367 F.3d 975, 981 (8th Cir. 2004), and we treat the IJ’s findings as the final decision
of the agency, see 8 C.F.R. § 1003.1(e)(4); Dominguez v. Ashcroft, 336 F.3d 678, 679
n.1 (8th Cir. 2003). We review the IJ’s factual determinations under the substantial
evidence standard, Turay v. Ashcroft, 405 F.3d 663, 666 (8th Cir. 2005), and an IJ’s
adverse credibility findings “are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Id. at 668 (internal quotation omitted).
We will set aside the decision of the BIA only if the petitioner demonstrates that the
evidence was so compelling that no reasonable factfinder could fail to find in favor
of the petitioner. Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004).
The Attorney General has discretion to grant asylum to a refugee, 8 U.S.C.
§ 1158(b)(1), and a refugee is defined as an alien who is unwilling to return to his
home country because of “(1) past persecution or (2) a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To establish a well-founded
fear of future persecution, the alien must show that he subjectively fears persecution,
and that there is credible, direct, and specific evidence that a reasonable person in the
alien’s position would fear persecution if returned to the alien’s native country.
Francois v. INS, 283 F.3d 926, 930 (8th Cir. 2002).
Mamana argues that he demonstrated a well-founded fear of future persecution
based largely on the incidents of March and May 1999 about which he testified. He
contends that the IJ may not disregard his testimony based only on a conclusion that
it did not have “the sound, the substance, or the ring of plausibility,” without citing
specific inconsistencies between the petitioner’s testimony and other evidence in the
record.
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We conclude that the IJ’s adverse credibility determination was supported by
substantial evidence. Our court has held that an IJ may properly base a credibility
finding on the “implausibility” of an alien’s testimony, as long as the IJ gives specific
and convincing reasons for disbelief. E.g., Ombongi v. Gonzales, 417 F.3d 823, 825-
26 (8th Cir. 2005); Begna v. Ashcroft, 392 F.3d 301, 304 (8th Cir. 2004); Rucu-
Roberti v. INS, 177 F.3d 669, 670 (8th Cir. 1999) (per curiam). We are satisfied that
the IJ gave satisfactory reasons for disbelieving Mamana’s testimony, and we do not
believe that a reasonable factfinder would be compelled by the record to credit the
disputed testimony, particularly in the absence of any corroboration, or what the IJ
called “proof from any reliable source.” See Nyama v. Ashcroft, 357 F.3d 812, 817
(8th Cir. 2004).
The IJ cited Mamana’s lack of a public reputation or prominent position in the
opposition party as reason to disbelieve his claim that a high-ranking government
official in the well-entrenched governing party of Togo would seek out Mamana to
give a speech on behalf of the government’s party. A reasonable adjudicator, in the
absence of corroborating evidence, could find this assertion implausible, just as we
found it reasonable for an IJ in Rucu-Roberti to deem it implausible that guerillas
would threaten an alien based on “minor” political activities. 177 F.3d at 670. The
IJ here also found unbelievable Mamana’s assertion that he went into hiding as a
result of the alleged threats by government officials, because the testimony on this
important point was internally inconsistent. At one stage, Mamana testified that after
his encounter with government officials in May 1999, he continued to run his business
until departing the country in September 2000. (J.A. at 115). Later, he testified that
he was “in hiding” when subpoenas were delivered to his wife in February 2000 and
March 2000, and said that he “didn’t work anymore” while he was in hiding. (J.A. at
119). The IJ reasonably found that Mamana “did not provide a satisfactory answer”
to the question of how he ran a business while in hiding, (J.A. at 65), and in fact,
Mamana gave inconsistent testimony about whether he was running a business or in
hiding between May 1999 and September 2000. See Begna, 392 F.3d at 304
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(upholding IJ’s decision that alien’s testimony was implausible, in part because
“during the time he claimed to be in hiding he continued to work in the family
business”).
While Mamana now contends that the IJ was wrong to discount Mamana’s
testimony because the government did not oppose his request for asylum, this
contention does not accurately characterize the government’s position before the
administrative tribunal. At the evidentiary hearing, counsel for the government
merely stated that “if credibility is found, then [there is] a well-founded fear [of
persecution].” (J.A. at 137) (emphasis added). The IJ made an adverse credibility
determination, and although the government’s attorney perceived a “back bone” and
“general unwaveringness” in Mamana’s answers, the government never conceded the
credibility of the testimony. The IJ believed firmly that Mamana’s rendition of events
was incredible, and this was a reasonable conclusion in light of the record as a whole.
We therefore uphold the denial of Mamana’s application for asylum. Because
Mamana failed to satisfy the relatively lower burden of proof on his asylum claim, his
claims for withholding of removal and for protection under the Convention Against
Torture (which are based on the same grounds asserted in support of his alleged
refugee status) fail as well. Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005);
Regalado-Garcia v. INS, 305 F.3d 784, 788 (8th Cir. 2002).
The petition for review is denied.
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