Pierre Bossa v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
JAN 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PIERRE DAVID BOSSA, No. 18-70202
Petitioner, Agency No. A209-391-310
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 4, 2019
Seattle, Washington
Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.
Pierre Bossa, a native and citizen of Haiti, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal of the immigration
judge’s (“IJ”) decision denying Bossa’s application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252(a). We deny Bossa’s petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review the BIA’s credibility finding for substantial evidence. See Guo v.
Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). Under the substantial evidence
standard, the court treats the agency’s determination as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). The court
affords IJs particular deference in the area of adverse credibility determinations
because the IJ is, “by virtue of his acquired skill, uniquely qualified to decide
whether an alien’s testimony has about it the ring of truth.” Sarvia-Quintanilla v.
INS, 767 F.2d 1387, 1395 (9th Cir. 1985).
Substantial evidence supports the agency’s adverse credibility decision. The
IJ identified multiple inconsistences between Bossa’s testimony at his hearing
before the IJ, his prior sworn statement, and his statements in his initial interview.
Particularly, in his initial interview with a border patrol agent, Bossa stated he did
not fear returning to Haiti and that he would not be harmed if returned. At his
hearing, Bossa claimed fear based on sexual orientation and described incidents he
experienced in his native Haiti and in Brazil, where he lived for nearly two years
before arriving in the United States. Further, Bossa discuss an important incident
at a soccer game in his credible fear interview, but did not mention it in his written
asylum application, and then included information about this incident in his
2
declaration with more detail than he provided in the credible fear interview.
The IJ questioned Bossa about the inconsistencies, but he provided shifting
explanations. Bossa explained that he gave false information to the border patrol
agent because there were many other Haiti immigrants in the room and it was too
public, but later stated it was because he had difficulty with the interpreter. The IJ
pointed out that the sworn statement expressly notes the interview may be the only
opportunity for an alien to explain his fear of returning and that he did not mention
any concerns related to the interpreter at the time. Bossa first explained that no one
read had read him the notices but later stated that he had difficulty working with
the interpreter. The IJ did not find these explanations credible, noting that Bossa
had completed other portions of the form correctly. The IJ was not required to
accept Bossa’s explanations for these inconsistencies. See Zamanov v. Holder, 649
F.3d 969, 974 (9th Cir. 2011).
In affirming the IJ’s adverse credibility finding, the BIA relied on multiple
inconsistencies, particularly Bossa’s statements at the border that he did not fear
returning to Haiti and would not be harmed, in contrast to his claims in his hearing.
The BIA also found Bossa’s explanations for these inconsistencies unpersuasive,
including Bossa’s statements that he had difficulty working with the interpreter
because his interview was conducted in a language other than Creole, though Form
3
I-867A shows that his interview was conducted in Creole.
Though the BIA relied on multiple inconsistencies, the court must uphold
the determination if one basis is supported by substantial evidence. See Rizk v.
Holder, 629 F.3d 1083, 1088-89 (9th Cir. 2011). Substantial evidence supports the
BIA’s determination Bossa was not credible, therefore the record does not compel
reversal. See 8 U.S.C. § 1252(b)(4)(B). Bossa failed to establish past persecution.
Substantial evidence also supports the agency’s determination that Bossa
failed to demonstrate a well-founded fear of future persecution. See Lolong v.
Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). To establish a
well-founded fear of future persecution, the applicant must establish that his fear
“is both subjectively genuine and objectively reasonable.” Id. Bossa failed to
satisfy the subjective component by not testifying credibly. Id. at 1178-79.
Absent credible testimony or evidence, Bossa’s asylum and withholding of
removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Substantial evidence supports the BIA’s denial of CAT relief. Because
Bossa’s CAT claim is based on the same testimony that the IJ found not credible,
and because Bossa presented no other evidence of torture, his CAT claim fails as
well. See Farah, 348 F.3d at 1157.
PETITION FOR REVIEW DENIED.
4
Pierre Bossa v. William Barr, 18-70202
FILED
JAN 7 2020
D.W. NELSON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The majority affirms the Immigration Judge (IJ) and Board of Immigration
Appeals (BIA)’s adverse credibility finding on the basis of Bossa’s failure to
disclose his sexual orientation at the border patrol interview. In my view, neither
the IJ nor the BIA provided a specific and cogent reason to disregard Bossa’s
explanation regarding his fear of disclosing his sexual orientation in public during
the border patrol interview. See Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir.
2017). Accordingly, I will dissent.
Bossa explained that he did not express his fear of persecution to the border
patrol agent during the September 2016 interview because the interview was
conducted in a public location, with many other Haitians present, and he was afraid
to disclose his sexual orientation given the persecution he had experienced from
Haitians in the past. As Bossa later put it to the asylum officer, “I was worried and
afraid to give the reasons why I am afraid.” The IJ rejected that explanation as
“unconvincing,” but the IJ never provided a cogent reason to disbelieve it. The IJ
only suggested the explanation was somehow implausible given “the two-month
journey to reach the United States for protection.” If anything, Bossa’s reluctance
to publicly divulge his sexual orientation after a lengthy journey simply confirms
the intensity of his fear. Given the hostility he experienced from his family,
homophobia from Haitians in Haiti and Brazil, and particularly after being attacked
and injured by a mob in Haiti, it seems reasonable for Bossa to be afraid that if a
large group of Haitians found out that he was gay, he would be attacked. Cf.
Paramasamy v. Ashcroft, 295 F.3d 1047, 1053 (9th Cir. 2002) (“That a woman
who has suffered sexual abuse at the hands of male officials does not
spontaneously reveal the details of that abuse to a male interviewer does not
constitute an inconsistency from which it could reasonably be inferred that she is
lying.”). Because the “IJ fail[ed] to address [Bossa’s] explanation for a
discrepancy or inconsistency,” the adverse credibility finding is improper. Kaur v.
Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004).
In affirming the BIA, the majority relies on Bossa’s statements that he had
difficulty working with the interpreter during the border patrol interview, but the
record supports Bossa’s explanation. The BIA emphasized that Bossa’s sworn
statement “did not indicate that he had trouble understanding the interpreter.” Not
true. For example, Bossa repeatedly answered the border patrol’s open-ended
questions with a non-sensical “yes” or “no.” Such “unresponsive answers by the
witness provide circumstantial evidence of translation problems.” Perez-Lastor v.
I.N.S., 208 F.3d 773, 778 (9th Cir. 2000). The BIA also took issue with Bossa’s
contention that the border interview “was eventually conducted by someone else in
a language other than Creole.” The IJ and BIA doubted that a portion of the border
patrol interview was conducted by someone other than the telephonic interpreter in
2
light of a “presumption of regularity” they afforded the border proceedings. See
Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007). Initially, I doubt such a
presumption should extend to an apparent contractor with AT&T who offered
telephonic interpretation services, especially in light of the language difficulties
noted above. Cf. Del Norte Cty. v. United States, 732 F.2d 1462, 1468 (9th Cir.
1984) (“[C]ourts presume that public officers properly discharge their duties.”
(emphasis added)). In any event, Bossa’s consistent testimony on this point during
his credible fear interview, and his declaration and testimony before the IJ provides
“clear evidence” to overcome that presumption. Id.
The majority construes these as “shifting” rather than simply additional
explanations for Bossa’s omission. But it was not contradictory for Bossa to
consistently explain that—in addition to his fear of persecution—these language
barriers provided an additional impediment to him publicly disclosing his sexual
orientation. Bossa’s explanation for his omission is grounded in the same fear of
persecution on which his asylum application relies. Lacking a specific and cogent
reason to reject that explanation, the BIA’s adverse credibility determination is not
supported by substantial evidence. See Manes, 875 F.3d at 1263.
Accordingly, I DISSENT.
3