Hanna Aziz v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1767
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Hanna Aziz, also known as *
Zahra Mohammed Almosawai, *
*
Petitioner, * Petition for Review of an
* Order of the Board of
v. * Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: December 11, 2006
Filed: March 1, 2007
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Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Hanna Aziz petitions for review of a final order of the Board of Immigration
Appeals (BIA) affirming an Immigration Judge’s (IJ) denial of her application for
asylum, withholding of removal, protection under the Convention Against Torture
(CAT), and cancellation of removal pursuant to battered spouse provisions added to
the Immigration and Nationality Act (INA) by the Violence Against Women Act
(VAWA). For the reasons stated below, we deny Aziz’s petition.
I. Factual and Procedural Background
Aziz was born to a Shi’ite family in Diwania, Iraq, on June 27, 1969. In 1989,
she married Idriss al-Nabi (now a lawful permanent resident of the United States) who
fathered her three children. In 1997, al-Nabi petitioned for a visa (I-730) on Aziz’s
behalf, which was denied. In 1998, Aziz departed Iraq and lived in Jordan for roughly
two years. While pregnant with her eldest child in 2000, she traveled to Syria and
then flew to Chicago. Aziz thereafter adopted the fictional identity of “Zahra
Almosawi” and presented a Saudi Arabian passport with that name to gain entry into
America. On October 31, 2000, “Almosawi” filed an asylum application. After
Department of Homeland Security charged her with entering the United States without
admission or parole by an Immigration Officer, “Almosawi” conceded she was
removable. In asylum-related proceedings and filings, she submitted fraudulent
evidence and made flatly dishonest statements to support her contentions that if
returned to Iraq she (1) would be subject to an “honor killing” because she had had
an extra-marital affair1 and (2) would be subject to torture and persecution by Saddam
Hussein (hereinafter “Hussein”), who had already persecuted her and her family.2
1
She submitted false medical documents relating to “Almosawi’s” first
pregnancy and a fabricated marriage document stating that “Almosawi” had married
an Iraqi in Syria (a man who, in actuality, does not exist). Similarly, she falsely
testified that she was not married to al-Nabi, that he was not the father of her eldest
child, and that her husband in Iraq had learned of an affair.
2
She submitted seven fraudulent affidavits in which the affiants state that they
knew “Almosawi” and her family in Iraq. The affidavits furthermore assert that it is
common knowledge that members of her family had been persecuted and killed in Iraq
by Hussein’s regime. She herself testified that Hussein’s regime had killed her father,
imprisoned her two brothers (whom she thought might have died while in custody),
detained her twice for not following Hussein politically, subjected her to threats of
torture, and ransacked her home.
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After the government exposed her deception by introducing her original I-730
visa application, Aziz acknowledged that she had lied and recanted her prior
testimony. She then revealed what she claimed to be her “real” history. She
continued to maintain that her father had been killed by Hussein’s regime, that her
brothers had been arrested, and that she had been detained twice. Nevertheless, her
story of Iraqi persecution changed: she admitted that her two brothers had been
released from detention. She sought to withdraw her untruthful asylum application
and, at her final hearing, she filed an application for VAWA cancellation, alleging that
she was a subservient woman who made false statements and filed false evidence at
the behest of her dominating husband. She argued that this amounted to constructive
abuse. She acknowledged, however, that she did not fear him, and she stated that he
never threatened or harmed her. The IJ found Aziz’s asylum application frivolous and
denied all of her requested petitions for relief.
II. Discussion
We review the IJ’s decision directly where, as here, the BIA adopts and affirms
it. Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir. 2005).
Aziz alleges that the IJ erred by (1) finding her asylum petition frivolous,3 (2)
improperly denying her asylum petition without fully considering her past persecution
and well-founded fear of future persecution, (3) pretermitting and denying her
application for VAWA cancellation, (4) failing to withhold removal under the INA
and under CAT, and (5) denying her due process.
3
Although Aziz never explicitly challenged the IJ’s frivolousness finding in her
petitioner’s brief, we will construe her VAWA argument alleging that she had
essentially been forced to file a fraudulent application and submit perjured testimony
as constituting a challenge to the required intent element of a frivolousness finding.
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1. Frivolous Application
If the Attorney General determines that an alien made a frivolous application
despite having received notice of, inter alia, the consequences of so doing, the alien
“shall be permanently ineligible for any benefits under this chapter, effective as of the
date of the final determination on such application.” 8 U.S.C. § 1158(d)(6). Although
the INA does not define “frivolous,” regulations promulgated under the Act describe
a frivolous application as one in which the IJ, after first being satisfied that the
applicant had been provided with an opportunity to account for discrepancies and
implausible aspects of the application, finds that “any of its material elements is
deliberately fabricated.” 8 C.F.R. § 208.20; see also Kifleyesus v. Gonzales, 462 F.3d
937, 944 (8th Cir. 2006) (describing the elements for a finding of frivolousness). We
look to whether substantial evidence supported an IJ’s finding of a frivolous
application. See Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (applying
the standard).
The IJ’s determination that Aziz’s asylum application was frivolous is
supported by substantial evidence. When confronted with evidence of her deception,
Aziz admitted that she had lied to the IJ and had submitted fraudulent evidence. The
deception and fabrication were presented to materially bolster her claim that she
would be subject to an honor killing if returned to Iraq. Finally, when she filed her
asylum application, an interpreter informed her – and Aziz provided her signature
indicating that she understood – that she would be permanently ineligible for any
benefits under the INA if she knowingly made a frivolous application for asylum.
While Aziz now admits her involvement in the deceit, she challenges the
frivolousness determination by alleging that her actions were compelled by her
husband and therefore lacked the requisite deliberateness. The IJ, however,
determined that “[t]he respondent and her husband [were] working together to
perpetrate the fraud that was brought before this Court on the asylum application.”
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With respect to the deliberateness determination, we are constrained by the IJ’s
finding as to credibility and his rejection of Aziz’s claim that her husband
overpowered her will, as these findings were supported by substantial evidence.4 See
Kifleyesus, 462 F.3d at 945 (dealing with a similar issue). Accordingly, substantial
evidence supports the overarching conclusion that Aziz filed a frivolous asylum
application. This renders Aziz ineligible for either asylum or VAWA cancellation, as
both are INA benefits. Nevertheless, Aziz may still be eligible for withholding of
removal or CAT relief. 8 C.F.R. § 208.20 (stating that the frivolous application
penalty “shall not preclude the alien from seeking withholding of removal”); see also
Liu v. United States Dep’t of Justice, 455 F.3d 106, 112 n.2 (2nd Cir. 2006) (noting
that an applicant may still benefit from non-INA relief).
2. Withholding of Removal
The government will not grant withholding if the alien does not “establish that
it is ‘more likely than not that the alien would be subject to persecution on . . .
[grounds including those of political and religious identity].’” Tawm v. Ashcroft, 363
F.3d 740, 744 (8th Cir. 2004) (quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)).
This requires that the probability of persecution be objectively ascertainable and clear.
Id. “We defer to the IJ’s determination of the petitioner’s credibility if the
determination is supported by a specific, cogent reason for the IJ’s disbelief.” Zhuang
v. Gonzales, 471 F.3d 884, 889 (8th Cir. 2006). The burden of proof for withholding
4
Aziz contends, inter alia, that a psychological report on record indicates that
she was functioning under duress and therefore was susceptible to her husband’s
influence. Even overlooking the fact that the diagnosis applied to“Almosawi” and not
Aziz, it describes a woman so anxious and depressed about her potential removal that
it more strongly suggests that she would take any action to avoid it. Furthermore,
contrary to her contention that her husband made her dissemble, Aziz acknowledged
in her own testimony that she loved the United States and that she had lied only in
order to remain in America.
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of removal is higher than that required for asylum. See Francois v. INS, 283 F.3d 926,
932-33 (8th Cir. 2002).
The record amply supports the IJ’s assessment that Aziz lacked credibility and
submitted false evidence, a finding that undermines her proof of past persecution and
the genuineness of her fear of future persecution. The Iraq condition report and
articles on the record note the increase in violence against women who do not closely
adhere to Islamic strictures following Hussein’s overthrow. They also mention
Hussein’s (and current loyalists’) tendency to persecute certain Shi’ites, perceived
political opponents, and relatives of such individuals. Nevertheless, other than Aziz’s
own statements, which the IJ had justifiably found not to be credible, no evidence
directly supports her suggestion that she would be persecuted as a woman and only
fraudulent affidavits support the suggestion that she might be targeted by Hussein
loyalists as a Shia relative of previously targeted political dissidents. Accordingly,
Aziz failed to meet her burden.
3. Convention Against Torture
CAT relief requires a showing that the petitioner is “more likely than not” to
suffer torture if she returned to Iraq. 8 C.F.R. § 208.16(c)(2). We review the agency’s
denial of relief to determine whether the evidence was “so compelling that a
reasonable factfinder must have found the alien entitled to relief under the
Convention.” Ngure v. Ashcroft, 367 F.3d 975, 992 (8th Cir. 2004).
Aziz maintains that the IJ’s denial of CAT relief must be remanded because the
IJ failed to analyze the evidence supporting her CAT claim. We disagree. In response
to the IJ’s contention that no credible evidence in the record supports a CAT claim,
Aziz does not specify any particular evidence that the IJ failed to consider or
adequately address. Instead, she appears to mistakenly rely wholly on our prior
conclusion that “[a]n IJ’s adverse credibility determination and adverse decisions on
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. . . withholding of removal are not determinative of the CAT claim,” Esaka v.
Ashcroft, 397 F.3d 1105, 1111 (8th Cir. 2005), to support her contention that the IJ
should have treated her statements and discredited evidence as worthy of more
extensive consideration when analyzed under CAT. Contrary to this position,
however, Aziz’s credibility remains relevant even under CAT analysis. Even if the
IJ’s prior credibility finding should not alone be determinative, an “IJ can properly
consider a claimant’s discounted credibility when determining whether he or she will
be subjected to torture.” Id.
Aziz provided no credible evidence establishing past torture or suggesting
future torture. See id. at 1111-12 (finding that in the absence of credible evidence of
past torture, a general conditions report could not suffice to demonstrate that petitioner
is more likely than not to suffer torture); see also Desna v. Gonzales , 454 F.3d 896,
899 (8th Cir. 2006) (“Because her CAT claim is based on the same discredited
testimony, the BIA properly concluded that the adverse credibility finding is also fatal
to that claim.”). Nothing in the IJ’s decision or the evidence itself leads us to
conclude that the IJ failed to consider evidence or allowed the taint of its prior
credibility determination to prevent it from applying appropriate weight to the
evidence when considering it under the CAT standard. Accordingly, Aziz presented
nothing so compelling that a reasonable factfinder must consider it more likely than
not that she would be tortured.
4. Due Process
Finally, Aziz contends that her due process rights were violated by the IJ’s
refusal to grant a continuance on her VAWA claim and allow her and her husband to
testify further on the issue. To succeed on a due process claim “an alien must prove
that he was actually prejudiced by the lack of process afforded to him.” Briones-
Sanchez v. Heinauer, 319 F.3d 324, 327 (8th Cir. 2003). No prejudice has been
shown. Aziz and her husband destroyed their own credibility by demonstrating their
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willingness to say and do anything to prevent Aziz’s removal. In light of the evidence
already in the record that Aziz willingly deceived the court of her own volition, their
providing further testimony would not have altered the result.
We affirm the BIA and deny Aziz’s petition for relief.
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