Bassene v. Holder ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALPHONSE CHARLES BASSENE, No. 07-75022
Petitioner,
Agency No.
v. A076-389-204
ERIC H. HOLDER, JR., Attorney ORDER AND
General, AMENDED
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 12, 2012—Pasadena, California
Filed July 23, 2013
Amended September 23, 2013
Before: Harry Pregerson and William A. Fletcher, Circuit
Judges, and Lawrence L. Piersol, Senior District Judge.*
Order;
Opinion by Judge Pregerson
*
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
2 BASSENE V. HOLDER
SUMMARY**
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ decision denying on adverse credibility
grounds asylum, withholding of removal, and protection
under the Convention Against Torture to a native and citizen
of Senegal.
The panel held that the Board erred by drawing an
adverse inference from the low level of detail about
persecution provided in petitioner’s mistakenly filed N-400
citizenship application, which was not designed to elicit
information about persecution. The panel further held that
substantial evidence did not support the Board’s finding of
inconsistencies between petitioner’s N-400 application and
his later filed I-589 asylum application. The panel remanded
for further consideration taking petitioner’s testimony as
credible.
COUNSEL
Nene Thiaba Mour Samb (argued), Samb and Associates,
LLC, Minneapolis, Minnesota, for Petitioner.
Marion E. Guyton (argued), Trial Attorney, Office of
Immigration Litigation Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BASSENE V. HOLDER 3
ORDER
The Opinion filed on July 23, 2013 is amended as
follows:
On slip opinion page 9, line 18, remove the following
text:

On page 9, line 18, insert the following text:

OPINION
PREGERSON, Circuit Judge:
Alphonse Charles Bassene (“Bassene”), a native and
citizen of Senegal, petitions for review of the Board of
Immigration Appeals (“BIA”) decision denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”).
4 BASSENE V. HOLDER
Bassene sought lawful status in the United States by
mistakenly filing an N-400 citizenship application instead of
filing an I-589 asylum application. He attached a one-page
statement to his citizenship application explaining that he had
expected to see questions asking if he had been persecuted for
his ethnicity or political beliefs in Senegal, because these
were the reasons he was seeking refuge in the United States.
After Bassene’s N-400 citizenship application was denied, an
Immigration and Naturalization Services Officer directed him
to file an asylum application. In his I-589 asylum
application, Bassene answered questions about the political
and ethnic persecution he experienced in great detail. The
answers in Bassene’s I-589 application were consistent with
the testimony he gave at his removal hearing. The
Immigration Judge (“IJ”) found that Bassene was not
credible, however, because Bassene had not supplied the
same level of detail about persecution when he filled out his
mistakenly filed N-400 citizenship application. The BIA
affirmed.
We hold that substantial evidence does not support the
BIA’s adverse credibility finding. The IJ should not have
drawn an adverse inference from the low level of detail about
persecution provided in Bassene’s N-400 citizenship
application, which is not designed to elicit information about
persecution. The BIA erred when it adopted the IJ’s flawed
reasoning. The BIA also erred when it found that Bassene
was not credible on the ground that his citizenship and
asylum applications were inconsistent. We have jurisdiction
under 8 U.S.C. § 1252. We grant the petition for review,
vacate the BIA’s adverse credibility finding, and remand to
the BIA to determine whether Bassene is eligible for asylum.
BASSENE V. HOLDER 5
BACKGROUND
A. Bassene’s Removal Proceedings
The facts of Bassene’s case compel us to conclude that
the BIA’s adverse credibility finding is not supported by
substantial evidence. At his August 29, 2006 removal
hearing, Bassene testified about the ethnic and political
persecution he experienced while living in Senegal. Bassene
grew up in southern Senegal’s Casamance region, in the town
of Zinguinchor. Bassene testified that if he returns to Senegal
he will be persecuted because of his Diola ethnicity and his
affiliation with the armed wing of the Movement of the
Democratic Forces of the Casamance (“MFDC”). The armed
wing of the MFDC is a separatist organization that demands
independence for southern Senegal’s Casamance region and
has been in an armed conflict with the Senegalese military
since the early 1980s.
1. Bassene’s Diola ethnicity
Bassene and his family are Diola, a minority ethnic group
in Senegal. Bassene is recognizable as Diola because of his
family name. From 1990 to 1997, Bassene attended the
University of Dakar on a government scholarship. Bassene
testified that in the capital city of Dakar, the Diola people are
not well-respected because they have a reputation for being
instigators of rebellion. Bassene contends that he was a top
university student studying Spanish and was set to receive a
scholarship to study abroad in Spain, but was replaced with
a non-Diola student at the last minute and had to remain in
Senegal.
6 BASSENE V. HOLDER
2. Bassene’s affiliation with the MFDC
In 1986, when Bassene was eighteen years old, his family
was forcefully recruited into financially supporting the
MFDC. Six gunmen from the movement’s armed wing
intruded into his family’s home in the late evening hours.
After Bassene’s mother and sisters were moved to another
location within Bassene’s family’s home, the gunmen
demanded that Bassene and his father join the MFDC to help
gain greater prosperity for the region. Bassene’s father
initially refused. The gunmen said if Bassene’s father wanted
to live, his family needed to be involved with the MFDC in
some way. Bassene’s family opted to contribute about $6 per
month to the MFDC. Bassene’s mother and two sisters, who
still live in Senegal, continue to pay this contribution under
threat of retaliation. The Bassenes were issued a family card
to demonstrate their affiliation with the armed wing of the
MFDC. The MFDC also has a distinct and legal political
wing. Bassene testified that he is sympathetic to the peaceful
objectives of the MFDC’s political wing. He once
participated in a large event organized by the political wing
of the MFDC in 1992, whose purpose was to restore peace in
Senegal.
Several of Bassene’s family members have been killed or
have lost their homes because of the conflict between the
armed wing of the MFDC and the Senegalese government.
Two of Bassene’s male cousins joined the armed wing of the
MFDC in 1991. After a Senegalese military raid in 1993, the
area where the men were camping was burned, they were
arrested by the military, and they were never heard from
again. Bassene’s aunt’s village was burned and she lost her
home as a result of the conflict between the Senegalese
government and the MFDC’s armed wing. As of 2001, over
BASSENE V. HOLDER 7
a hundred civilians have been extrajudicially executed or
“disappeared by” the Senegalese military, and dozens have
been deliberately or arbitrarily killed by the armed wing of
the MFDC.
In 1992, Bassene was detained, arrested, and beaten by
the Senegalese military because of his affiliation with the
MFDC’s armed wing. Bassene was traveling home from
school on the Thursday before the Easter holiday. While
passing through a checkpoint, Bassene was detained and
searched by the Senegalese military. After the soldiers found
Bassene’s MFDC card, they escorted Bassene to a small
building for questioning. Bassene told the soldiers that he
was a student and that he had been forced to carry the MFDC
card.
The soldiers took Bassene to jail and placed him in a cell
with five other men. The soldiers beat Bassene and made
derogatory comments about his Diola heritage. There was no
running water in the cell. It was not until the following
morning, on Friday, that the men were given some food and
allowed to go to the bathroom. The soldiers questioned
Bassene for an additional six hours that day.
On Saturday morning at 2:00 a.m., the soldiers placed a
call to the University of Dakar. The University confirmed
that Bassene was a full-time student. Bassene paid a $30 fine
and was subsequently released. At the time of his release,
Bassene’s face was bleeding and swollen from being pushed
into a wall by a soldier. The soldier escorting Bassene out of
jail threatened him, saying the next time he was caught by the
military, “that will be the end of it.”
8 BASSENE V. HOLDER
Bassene fears that if he returns to Senegal he will be
arrested and interrogated regarding his whereabouts for the
past nine years. Bassene also believes that if he returns to
Senegal, the MFDC’s armed wing will attempt to recruit him
again. He does not believe the Senegalese government will
be able to protect him from the MFDC’s armed wing.
3. Bassene’s immigration proceedings in the United
States
Bassene was legally admitted to the United States on
November 27, 1997, on a J-1 cultural exchange visa. Bassene
came to the United States from Senegal to participate in an
internship program in hotel management. His visa expired a
year-and-a-half later on June 29, 1999. Bassene wanted to
stay in the United States legally. He feared returning to
Senegal because he had been arrested, detained, beaten, and
threatened by the Senegalese military. An American college
student who was an acquaintance of Bassene’s advised
Bassene to apply for United States citizenship. As a result,
Bassene mistakenly believed that he could obtain lawful
status in the United States based on his fear of persecution in
Senegal by filing an N-400 citizenship application.
On November 1, 1999, Bassene filed an N-400 citizenship
application. The N-400 citizenship application requests
information from the applicant setting forth his or her
eligibility for citizenship, including lawful permanent
residency status and compliance with immigration laws.
Question 15 asked if Bassene had been arrested for “breaking
or violating any law or ordinance.” Bassene checked a box
indicating that he had never been arrested for those reasons.
Part 9 of the citizenship application asked Bassene to list his
affiliations with “organization[s].” Bassene did not disclose
BASSENE V. HOLDER 9
his membership in the armed wing of the MFDC because he
was forced to be a member of the organization.
Bassene attached a one-page statement to his N-400
citizenship application to convey that he feared returning to
Senegal because he expected to see a question about
persecution in his home country. In the one-page statement,
Bassene elaborated, in general terms, on the turbulent
situation in his home region of Casamance. Bassene’s N-400
application for citizenship was denied on July 20, 2000, and
Bassene requested a hearing on the denial.
On February 15, 2001, Bassene met with an Immigration
and Naturalization Service officer. The officer conducted a
de novo review of Bassene’s N-400 citizenship application
and found Bassene ineligible for naturalization. The officer
told Bassene that he could apply for asylum. The officer gave
Bassene an I-589 asylum application; a list of the countries
whose nationals were eligible for asylum, withholding of
removal, or CAT relief; and a list of free legal services.
On March 8, 2001, Bassene submitted his I-589 asylum
application that he completed without the assistance of
counsel. In his asylum application, Bassene provided detailed
accounts of the night in 1986 when his family was forced to
join the armed wing of the MFDC. Bassene also described
his 1992 arrest by the Senegalese military.
Several years later, on August 29, 2006, Bassene
appeared before the IJ in San Diego at his removal hearing.
10 BASSENE V. HOLDER
Bassene conceded removability and asked for asylum,
withholding of removal, and relief under CAT.1
B. The IJ Grants the Exceptional Circumstances
Exception for Asylum
At the removal hearing, the Department of Homeland
Security (“DHS”) argued that Bassene was ineligible for
asylum because he filed his application after the one-year
period designated by statute. See 8 U.S.C. § 1158(a)(2)(B).
Bassene submitted his citizenship application almost two
years after he arrived in the United States, and about six
months after his J-1 visa expired. Bassene argued that he was
exempted from the one year filing period under the
“extraordinary circumstances” exception because he filed the
N-400 citizenship application less than six months after his J-
1 visa expired. See 8 U.S.C. § 1158(a)(2)(D). The IJ agreed.
The IJ also decided to treat Bassene’s mistakenly filed N-400
citizenship application as a quasi-asylum application.
C. The IJ Finds that Bassene is Not Credible
At the removal hearing on August 29, 2006, the IJ asked
Bassene why he had not disclosed that he was arrested by the
Senegalese military in the one-page statement he attached to
his N-400 citizenship application. Bassene responded: “I
was arrested. I don’t know why I didn’t (indiscernable) but
I was.” Moments later, the IJ notified Bassene’s attorney that
1
We apply pre-REAL ID Act standards because Bassene filed his
application for relief on November 1, 1999, which was before May 11,
2005, the effective date of the REAL ID Act. See Sinha v. Holder,
564 F.3d 1015, 1021 n.3 (9th Cir. 2009) (applying the pre-REAL ID Act
standard).
BASSENE V. HOLDER 11
the biggest problem in Bassene’s case was credibility.
Bassene’s attorney argued that the purpose of the one-page
statement attached to the N-400 citizenship application was
to “tell our Government that [Bassene] might not be filing the
correct form but [Bassene] didn’t want to go back to his
country.” In its closing argument, DHS admitted that
Bassene was credible, stating: “The government feels that
overall he has been a very credible witness.” Nonetheless,
DHS declined to stipulate to Bassene’s credibility.
D. The IJ and BIA Decisions
On August 29, 2006, the IJ denied Bassene’s claim for
asylum, withholding of removal, and relief under CAT. The
IJ denied asylum and withholding of removal because he
found that Bassene was not credible. The IJ concluded that
the one-page statement Bassene attached to the N-400
citizenship application showed that he submitted the
application to “convey to the United States Government the
basis of his fear to allow him to stay in” the United States.
The IJ stated that he was willing to excuse minor omissions
from the N-400, but he was not willing to excuse Bassene’s
omission “that he was arrested and detained for two or three
days[,] and mistreated and interrogated by the Senegalese
military.” The IJ also denied relief under CAT.
The BIA adopted the IJ’s adverse credibility finding and
also found that Bassene failed to meet his burden of proof for
relief. The BIA noted two alleged inconsistencies between
Bassene’s N-400 citizenship application and his I-589 asylum
application: (1) Bassene did not mention his arrest by the
Senegalese military and explicitly denied being “arrested,
imprisoned, or fined” in his N-400 citizenship application;
12 BASSENE V. HOLDER
and, (2) Bassene “failed to reveal his alleged membership in
MFDC” in his N-400 citizenship application.
STANDARD AND SCOPE OF REVIEW
Credibility determinations are reviewed for substantial
evidence. Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir.
2011). Under the substantial evidence standard, an adverse
credibility finding is “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
Id. (internal quotation marks omitted). The BIA gives
deference to an IJ’s credibility finding because the IJ is in the
best position to assess the trustworthiness of the applicant’s
testimony. See Mendoza Manimbao v. Ashcroft, 329 F.3d
655, 661–62 (9th Cir. 2003). Where, as here, the BIA
summarily affirms an IJ’s decision and does not expressly
conduct a de novo review we may “look to the IJ’s oral
decision as a guide to what lay behind the BIA’s conclusion.”
Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007).
DISCUSSION
A. The Lack of Detail in Bassene’s Mistakenly Filed N-
400 Citizenship Application Does Not Support the
BIA’s Adverse Credibility Finding
The IJ and BIA drew an adverse inference from the
omission of Bassene’s arrest and detention by the Senegalese
military from his N-400 citizenship application. However,
the N-400 citizenship application was not designed to elicit
information about persecution. “[T]he IJ had no reason to
‘expect’ to be told of ‘persecution and assaults’ on [Bassene
or his] family” in Bassene’s mistakenly filed N-400
citizenship application. Joseph v. Holder, 600 F.3d 1235,
BASSENE V. HOLDER 13
1242–43 (9th Cir. 2010) (internal quotation marks omitted)
(reversing adverse credibility finding that relied on
differences between bond hearing testimony and removal
hearing testimony).
In short, the IJ concluded that Bassene was not credible
because he did not include evidence of political and ethnic
persecution in his N-400 citizenship application, information
that would have been relevant had he filed an I-589
application for asylum. That Bassene filed an initial N-400
citizenship application that “was not as complete as might be
desired” of an I-589 asylum application “cannot, without
more, serve as a basis for a finding of lack of credibility.’”
Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir.
2005) (quoting Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.
1996)) (internal quotation marks omitted). Bassene provided
information on the ethnic and political persecution he
experienced in Senegal in the I-589 asylum application that
he was later instructed to file.
Moreover, the IJ speculated that because Bassene was an
educated person, he should have known to mention his arrest
and detention by the Senegalese military in his mistakenly
filed N-400 citizenship application. But “[s]peculation and
conjecture cannot form the basis of an adverse credibility
finding.” Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000).
We hold that the lack of detailed information related to an
asylum claim provided in a non-asylum proceeding, when
consistent with the requirements of the proceeding, cannot on
its own result in an adverse credibility finding. We also hold
that an IJ may not make an adverse credibility finding based
solely on speculation that an asylum applicant should have
been capable of providing more detail related to an asylum
claim in an earlier non-asylum proceeding.
14 BASSENE V. HOLDER
Bassene filed the N-400 citizenship application pro se.
We are guided by the principle that “asylum forms filled out
by people who are unable to retain counsel should be read
charitably, especially when it comes to the absence of a
comprehensive and thorough account of all past instances of
persecution.” Smolniakova, 422 F.3d at 1045 (internal
quotation marks omitted). We recently stated that
“[o]missions [in I-589 asylum applications] are not given
much significance because applicants usually do not speak
English and are not represented by counsel.” Kin v. Holder,
595 F.3d 1050, 1056 (9th Cir. 2010). We give Bassene’s
omission of his arrest and detention even less weight because
he completed an N-400 citizenship application, rather than an
I-589 asylum application, and properly complied with the
requirements set forth in his N-400 citizenship application.
The I-589 asylum application would have at least prompted
Bassene to provide information on political and ethnic
persecution, whereas the N-400 citizenship application did
not.
Bassene’s mistakenly filed N-400 citizenship application
is akin to early-stage asylum proceedings like bond hearings,
airport interviews, and asylum interviews. The differences in
detail between statements made during less formal
proceedings and later formal proceedings may not be used to
undermine an applicant’s credibility. In Joseph v. Holder, for
example, we “rejected [an] adverse credibility finding[] that
relied on differences between statements a petitioner made
during removal proceedings and those made during [a] less
formal, . . . unrecorded [bond hearing].” 600 F.3d at 1243.
We reasoned that an IJ’s credibility finding during a removal
hearing may not rely on statements made by the applicant
during less formal proceedings. Id. at 1244.
BASSENE V. HOLDER 15
In so holding, Joseph relied on precedent explaining that
airport interviews and asylum interviews do not require the
same level of detail as later formal proceedings. See
Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003)
(holding that petitioner’s omission during an airport interview
of specific details of torture that were revealed later at the
removal hearing did not support a negative credibility
finding); Singh v. INS, 292 F.3d 1017, 1021–24 (9th Cir.
2002) (holding that an adverse credibility finding could not
rest solely on the fact that an applicant provided less detail in
his statements at the airport than he did at his subsequent
hearing); see also Singh v. Gonzales, 403 F.3d 1081, 1087
(9th Cir. 2005) (holding that a contradiction between a
petitioner’s asylum interview, where the interview was not
recorded and notes were taken by hand, and removal hearing
testimony was not substantial evidence to justify an adverse
credibility finding). The lack of detail in Bassene’s
mistakenly filed but properly completed N-400 citizenship
application, does not on its own undermine Bassene’s
credibility in his asylum proceeding.
The lack of detail in Bassene’s N-400 citizenship
application and speculation that Bassene was capable of
providing information on political and ethnic persecution
does not “bear a legitimate nexus to the [BIA’s] finding” that
Bassene is not credible. Salaam v. INS, 229 F.3d 1234, 1238
(9th Cir. 2000) (per curiam) (internal quotation marks
omitted).
16 BASSENE V. HOLDER
B. The Purported Inconsistencies between Bassene’s N-
400 Citizenship Application and His I-589 Asylum
Application Do Not Support the BIA’s Adverse
Credibility Finding
When taking both of Bassene’s applications together,
Bassene’s N-400 citizenship application was not inconsistent
with his I-589 asylum application. The BIA believed that the
two applications lacked “sufficient consistency” because
Bassene failed to disclose his arrest and detention by the
Senegalese military and his forced membership in the MFDC
in his N-400 citizenship application. Viewing the purported
inconsistencies “in light of all the evidence presented in the
case” reveals that the applications were not inconsistent.
Kaur v. Gonzales, 418 F.3d 1061, 1066 (9th Cir. 2005). In
Bassene’s N-400 citizenship application, Bassene correctly
answered that he had not been arrested for unlawful conduct
for “breaking or violating any law or ordinance.” Here,
Bassene was arrested because the Senegalese military
incorrectly identified him as a member of the MFDC’s armed
wing. Bassene was also truthful in declining to list his forced
membership in the MFDC in his N-400 citizenship
application. Bassene agreed to carry an MFDC membership
card and pay a tax to the MFDC only after six gunmen
entered his home and forcefully recruited him and his father.
For these reasons, the claimed inconsistency between the
two applications is not supported by substantial evidence. In
addition, Bassene appropriately answered his N-400
citizenship application.
BASSENE V. HOLDER 17
CONCLUSION
The BIA has not evaluated Bassene’s eligibility for
asylum based on his fear of persecution in Senegal. We grant
Bassene’s petition for review, vacate the BIA’s adverse
credibility finding, and remand the case to the BIA for further
consideration and investigation in light of our ruling that the
petitioner is credible. Guo v. Ashcroft, 361 F.3d 1194,
1203–04 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12,
16 (2002)).
PETITION GRANTED; REVERSED and
REMANDED.