Salifu v. INS

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1714
JAARAH SALIFU,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
John J. Loscocco and Barker, Epstein and Loscocco on brief for
petitioner.
Ellen Sue Shapiro, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, Frank
W. Hunger, Assistant Attorney General, Civil Division, and Richard M.
Evans, Assistant Director, on brief for respondent.
February 19, 1998
Per Curiam. Jaarah Salifu appeals a decision of the
Board of Immigration Appeals, which affirmed an immigration
judge's denial of her petition for asylum and withholding of
deportation. 8 U.S.C. 1158, 1253(h). We affirm.
Salifu, a native of Ghana, attempted to enter the United
States through John F. Kennedy Airport in New York on July 1,
1993. The Immigration and Naturalization Service paroled her
into the United States and began exclusion proceedings. At
an exclusion hearing on November 9, 1993, Salifu conceded
excludability but petitioned for asylum and withholding of
deportation, alleging that she feared persecution in Ghana on
the basis of her political opinion. Evidentiary hearings on
the petition were held before an immigration judge on March
30 and August 25, 1994.
Salifu's asylum affidavit states that she was a regional
organizing secretary of Ghana's New Patriotic Party, which
opposed the ruling junta in an election on November 3, 1992.
The next day, Salifu participated in a demonstration
protesting fraud in the election. The demonstrators were
dispersed by army and police officers, and a curfew was
imposed on the area. On November 6, police officers arrested
Salifu at home and took her to a police station. The
affidavit states that she was held for about two weeks,
during which time she was raped twice. Salifu claims that
the officers told her she was being held because of her
participation in the demonstration.
Salifu's affidavit states that a police officer told her
that she would be transferred to Accra, Ghana's capital, and
that many prisoners sent there never returned. The officer
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agreed to help Salifu escape and took her home. Her mother
suggested that she go to stay with her grandmother, which
Salifu did.
After three months with her grandmother, Salifu said
that she decided to contact a friend in Accra. The friend
took Salifu in and promised to help her escape from the
country. The friend obtained a passport for Salifu in the
name of Marian Bigelow and an airline ticket to the United
States. The friend also gave her an envelope containing some
photographs. During the flight, Salifu destroyed the
passport, as her friend had instructed.
Salifu was detained by an INS official upon arrival in
New York. The official searched her bag and removed the
envelope, which contained not only the photographs but also a
handwritten letter. Salifu claims she did not write the
letter, does not recognize the handwriting, and was unaware
that the letter was in her possession until it was found.
The letter narrates the experience of a New Patriotic Party
activist who was raped; the details are similar in some
respects, but not in others, to Salifu's statements in her
asylum affidavit.
The INS official then interrogated Salifu. She
requested an interpreter who spoke Twi, her native language,
but no interpreter was available. Salifu attempted to
converse with the officer in English, although she maintains
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her English was and remains very poor. The INS officer wrote
Salifu's answers out in affidavit form, which Salifu signed.
This "airport affidavit" was admitted into evidence at the
hearing, as were the letter and photographs found in Salifu's
possession and a memorandum that the INS officer wrote "to
file" after interviewing Salifu.
The immigration judge wrote a detailed opinion
concluding that Salifu's testimony was not credible. This
conclusion was based on Salifu's demeanor on the stand, her
inability or refusal to answer simple questions, and
inconsistencies between her live testimony, the airport
affidavit, and the affidavit filed in support of her asylum
petition. The immigration judge concluded that Salifu not
carried her burden of proving that she had a "well-founded
fear of persecution" on account of her political opinion.
Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990). On
appeal, the Board of Immigration Appeals affirmed the
immigration judge's decision.
Salifu's argument on appeal comprises an attack on the
factfinder's credibility assessments, which must be upheld as
long as they are "reasonably grounded in the record, viewed
as a whole." Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st
Cir. 1994). We think that the immigration judge was not
clearly erroneous in concluding that Salifu's testimony was
not convincing. As the judge noted, there were "sufficient
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inconsistencies in the testimony, asylum application, and
affidavitalone to warrant a negative finding of credibility."
Salifu argues that the Board violated the policy of our
decision in Cordero-Trejo v. INS, 40 F.3d 482 (1st Cir.
1994). In Cordero-Trejo, we reversed a denial of asylum,
noting that the immigration judge's adverse credibility
findings were not based on "any perspectives offered by the
unique vantage point of the factfinder, such as witness
demeanor, conflicting or confused testimony, etc., from which
credibility is typically assessed." Id. at 491. Rather, the
immigration judge in Cordero-Trejo discredited the
petitioner's testimony with criticisms that we thought either
patently unreasonable or directly refuted by documentary
evidence in the record. Nothing like that occurred here.
Salifu makes a related legal argument that her own lack
of credibility does not dispose of her claim that she has a
well-founded fear of persecution. Salifu quotes language
from Cordero-Trejo to the effect that an asylum applicant's
testimony must be evaluated in the context of documentary
evidence of the political situation in the applicant's home
country. Salifu is right that such information is relevant
to determine whether a petitioner's fear of persecution is
objectively "well-founded." But as a threshold matter, the
asylum petitioner must prove that she has an actual
subjective fear of persecution. INS v. Cardoza-Fonseca, 480
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U.S. 421, 430-31 (1987). The subjective element of an asylum
claim must be "established via the applicant's credible
testimony that his fear is genuine." Cordero-Trejo, 40 F.3d
at 491 (emphasis added). In this regard a petitioner's lack
of credibility can be dispositive, as it is here.
Salifu argues that the immigration judge erred in
admitting into evidence the handwritten letter and
photographs seized from her at the airport, as well as the
INS officer's "memorandum to file." Because the photographs
and memorandum do not appreciably strengthen the case against
Salifu, we believe their admission, if at all erroneous, was
harmless. Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d
848, 855 (1st Cir. 1998).
The handwritten letter, on the other hand, was damaging
to Salifu. Salifu's sole objection below was that the letter
was irrelevant. This objection is without merit. The letter
tended somewhat to increase the chance that Salifu was
"coached in her story" before leaving Ghana, and that the
story was untrue in material respects. On appeal, Salifu
asserts that there was no foundation for the letter,
specifically, that there was no independent proof that the
letter offered was the one found in her possession and that
it had not been altered. However, this objection was not
made at the time the letter was offered into evidence, so it
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is deemed waived. United States v. Benavente-Gomez, 921 F.2d
378, 385 (1st Cir. 1990).
Salifu makes other arguments regarding the definitions
of persecution and political opinion. Because the Board
correctly affirmed the immigration judge's conclusion
regarding credibility, we do not reach Salifu's additional
eligibility arguments. Because she does not qualify for
asylum, Salifu also does not meet the more demanding standard
for withholding of deportation. Alvarez-Flores, 909 F.2d at
4.
Affirmed.
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