Henri Ba v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRI ANTOINE BA, No. 13-70876
Petitioner, Agency No. A079-267-329
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2019
Pasadena, California
Before: O’SCANNLAIN, PAEZ, and OWENS, Circuit Judges.
Henri Antoine Ba, a Senegalese citizen from the country’s southern region
of Casamance, petitions for review of the Board of Immigration Appeals’ (BIA’s)
denial of his application for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. §
1252(a). For the reasons explained below, we grant the petition and remand for
further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The government argues that our jurisdiction is limited in light of the
Immigration Judge’s (IJ’s) determination—in the context of Ba’s subsequent
application for adjustment of status—that the statutory terrorism bar applies to
Ba’s asylum application. We disagree. Under 8 U.S.C. § 1158(b)(2)(D), we
cannot review the Attorney General’s determination that an applicant is ineligible
for asylum because of the statutory terrorism bar. See Bellout v. Ashcroft, 363 F.3d
975, 977 (9th Cir. 2004). But no such determination was made here. The BIA and
IJ denied Ba asylum on the basis of Ba’s credibility and declined to decide whether
the terrorism bar applied. Thus, 8 U.S.C. § 1158(b)(2)(D) does not limit our
review of the agency’s denial of Ba’s asylum application.1
2. Substantial evidence does not support the adverse credibility
determination underlying the denial of Ba’s application for asylum. See Diaz-
Jimenez v. Sessions, 902 F.3d 955, 958 (9th Cir. 2018).
The BIA and IJ both relied on discrepancies in Ba’s account regarding his
role with a regional separatist movement, Mouvement des Forces Démocratiques
de Casamance (“MFDC”). For pre-REAL ID Act claims like Ba’s asylum
application, “[i]t is well settled in our circuit that minor inconsistencies that do not
go to the heart of an applicant’s claim for asylum cannot support an adverse
1
We express no views on the applicability of the statutory terrorism
bar, which the government may assert on remand.
2
credibility determination.” Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005).
But the discrepancies regarding whether Ba sold MFDC membership cards or
encouraged others to join the organization are “neither substantial nor go to the
heart of [Ba’s] claims of past persecution.” Morgan v. Mukasey, 529 F.3d 1202,
1207 (9th Cir. 2008). For example, Ba’s account of the persecution he experienced
involved witnessing a summary execution after being pulled off a bus due to his
Diola ethnicity. See generally Ndom v. Ashcroft, 384 F.3d 743, 748 (9th Cir. 2004)
(describing government persecution against ethnic Diola in Casamance). Ba’s
inconsistent testimony regarding his role with the MFDC “reveal[s] nothing about
[his] fear for [his] safety.” See Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.
2004); see also Guan v. Barr, 925 F.3d 1022, 1035 (9th Cir. 2019). To be sure, the
record supports Ba’s explanations for these inconsistencies, including that Ba
struggled with English, memory issues, and the effects of Post-Traumatic Stress
Disorder consistent with torture. But because these inconsistencies do not go to
the heart of Ba’s claim of past persecution in any event, they do not support the
adverse credibility determination here. See Yan Xia Zhu v. Mukasey, 537 F.3d
1034, 1043 (9th Cir. 2008).
The BIA and IJ also pointed to the several letters Ba offered in support of his
application. The letters—from Ba’s mother and two people Ba described as father
figures—generally support Ba’s account. Specifically, the letters note that Ba was
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targeted by authorities, had witnessed confrontations with soldiers, faced “constant
harassment” by state authorities, would likely be killed by summary execution,
torture, or imprisonment if Ba returned, and that the situation in Casamance only
worsened after Ba’s departure. But the IJ found it to be significant that none of the
letters discussed Ba’s arrest fifteen years earlier. Initially, “[s]upplying
corroborating affidavits . . . has never been required to establish an applicant’s
credibility.” Lopez-Reyes v. I.N.S., 79 F.3d 908, 912 (9th Cir. 1996). And the IJ’s
opinion about what the letters should have contained—especially Ba’s uncle’s
letter, entitled “Re: Expression of New Year’s Wishes” and which did not discuss
Ba at all—constitutes “impermissible speculation and conjecture” that cannot
support an adverse credibility determination. Ge v. Ashcroft, 367 F.3d 1121, 1124
(9th Cir. 2004).
In sum, the inconsistencies upon which the BIA relied do not go to the heart
of Ba’s claim of past persecution and the independent evidence Ba provided
supports rather than contradicts his account. Accordingly, we hold that the adverse
credibility finding was not supported by substantial evidence. Having held that the
adverse credibility finding is not supported by substantial evidence, we will grant
the petition for review and remand to the BIA for a determination of whether Ba is
eligible for asylum, withholding of removal, or CAT relief. See Yan Xia Zhu, 537
F.3d at 1045–46.
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Petition for review GRANTED and REMANDED.
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FILED
Ba v. Barr, No. 13-70876 JAN 17 2020
MOLLY C. DWYER, CLERK
O’SCANNLAIN, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Since I would dismiss Henri Antoine Ba’s petition with respect to his request
for asylum and deny his petition with respect to his requests for withholding of
removal and relief under the Convention Against Torture (CAT), I must respectfully
dissent from the court’s disposition.
I
I believe that we lack jurisdiction to review the denial of Ba’s asylum
application. The Board of Immigration Appeals’ (BIA’s) affirmance of the
Immigration Judge’s (IJ’s) determination that Ba is subject to the terrorism bar, 8
U.S.C. § 1182(a)(3)(B), forecloses his eligibility for asylum, id. § 1158(b)(2)(A)(v).
Such determination simply is not subject to judicial review. Id. § 1158(b)(2)(D).
The majority contends that we retain jurisdiction because the IJ determined
that the statutory terrorism bar applied “in the context of Ba’s subsequent application
for adjustment of status,” not his initial application for asylum. Maj. at 2.
Respectfully, I suggest that the majority is mistaken. Ba did not go through two
separate sets of proceedings—one for the asylum, withholding of removal, and CAT
relief, the other for adjustment of status. He was the subject of only one set of
proceedings, which the BIA reopened upon Ba’s request. Furthermore, there is
nothing more for the BIA to decide regarding Ba’s eligibility for asylum. Once the
IJ found that Ba was subject to the terrorism bar, he was automatically ineligible for
asylum. No additional finding was required.
II
For the same reason, I would also deny his petition with respect to his requests
for withholding of removal and CAT relief in the form of withholding. Once an IJ
determines that an alien is covered by the terrorism bar, such alien is automatically
ineligible for withholding of removal, 8 U.S.C. §§ 1227(a)(4)(B), 1231(b)(3)(B)(iv),
and CAT protection in the form of withholding, 8 C.F.R. § 1208.16(d)(2). Because
the IJ determined (and the BIA affirmed) that Ba engaged in terrorist activities, he
was automatically made ineligible for these other forms of relief.
III
Even though Ba is subject to the terrorism bar, he is still eligible for CAT
relief in the form of deferral. 8 C.F.R. § 1208.17; see also Haile v. Holder, 658 F.3d
1122, 1125–26 (9th Cir. 2011) (“Aliens who have engaged in terrorist activities are
precluded from seeking several forms of relief from removal, including asylum,
withholding, and CAT protection in the form of withholding, but remain eligible for
deferral of removal under the CAT.”). With respect to such form of relief, I would
deny Ba’s petition because substantial evidence supports the adverse credibility
determination and the independent record evidence does not compel the conclusion
that Ba is more likely than not to be tortured if he returns to Senegal.
2
A
Because this is a pre-REAL ID Act case, an adverse credibility determination
must be based on a material discrepancy that goes to the heart of the applicant’s
claim. Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005). The majority contends
that the discrepancies in Ba’s testimony regarding his involvement with the
Mouvement des Forces Démocratiques de Casamance (MFDC) do not go to the heart
of his claims of past persecution. Maj. at 3. Once again, I respectfully suggest that
the majority is mistaken.
Ba’s claims of past persecution stem from the conflict in the Casamance. The
MFDC is a participant in that conflict. If the IJ found that there was reason to doubt
Ba’s testimony about his membership in a group that is a party to the conflict, then
it was reasonable for the IJ to question the credibility of Ba’s testimony about
persecution that he allegedly suffered in that same conflict. See Enying Li v. Holder,
738 F.3d 1160, 1162 (9th Cir. 2013) (holding that “an IJ may use the maxim falsus
in uno, falsus in omnibus . . . to find that material inconsistencies in testimony
regarding one claim support an adverse credibility determination on another claim
in a pre-REAL ID Act case”). For example, one of Ba’s claims of past persecution
is that he was injured by Senegalese soldiers in 1982 while participating in a protest
for Casamance independence. If the IJ found that Ba was not truthful about his
membership in a group that supports Casamance independence, then it was
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reasonable for the IJ to doubt Ba’s claim that he was injured in a protest for that very
same cause.
Granted, it is possible that Ba participated and was injured in a protest for
Casamance independence but was not an active member of the MFDC. However,
we do not reverse the BIA’s factual findings based on the mere possibility of error.
We review factual findings, including adverse credibility determinations, for
substantial evidence. Lianhua Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014).
Here, the evidence does not compel the conclusion that the BIA’s adverse credibility
determination was erroneous. On the contrary, in light of the material inconsistencies
in Ba’s testimony about his membership in the MFDC, the BIA’s findings were
eminently reasonable.
B
Nor does the record evidence, standing alone, compel the conclusion that Ba
is more likely than not to be tortured if he returns to Senegal. Shrestha v. Holder,
590 F.3d 1034, 1048–49 (9th Cir. 2010).
For example, Ba offers up medical evaluations to prove that he was the victim
of torture. But while these evaluations state that Ba has had symptoms consistent
with torture, they do not establish that he was tortured, much less that he is more
likely than not to be tortured in the future.
4
Ba presents several letters in support of his application. Unlike the majority,
however, I do not think this evidence is helpful to Ba’s case. Maj. at 3–4. Ba’s uncle
describes his own torture and imprisonment but says nothing about Ba’s experiences.
Ba’s mother discusses her concerns about ongoing harassment from Senegalese
authorities, but she does not suggest that Ba is likely to be tortured if he returns. The
letter from Abbot Augustin Diamacoune Senghor appears to offer the most support
to Ba’s claims: It says that Ba is likely to be imprisoned, tortured, or executed if he
goes back to Senegal. However, the author of the letter was the Secretary General of
the MFDC—the same terrorist organization of which Ba has inconsistently claimed
to have been a member, hardly compelling evidence.
Finally, although the country reports included in the administrative record
suggest that Senegal is a troubled place where torture and other human rights abuses
have occurred, they do not compel the conclusion that Ba, specifically, is more likely
than not to be tortured if he returns.
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