Some v. Gonzales

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2227
JANE JEPKOECH SOME,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States; MICHAEL CHERTOFF, Secretary of the
United States Department of Homeland Security,
Respondents.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Hug,* Senior Circuit Judge,
and Howard, Circuit Judge.
Duane M. Hamilton on brief for petitioner.
Scott A. Hershovitz, Attorney, United States Department of
Justice, and Peter D. Keisler, Assistant Attorney General, on brief
for respondent.
May 15, 2006
*
Of the Ninth Circuit, sitting by designation.
Per Curiam. Jane Jepkoech Some (“Some”) petitions for review
of a Board of Immigration Appeals (“BIA”) decision finding that
Some is not eligible for asylum and denying Some withholding of
removal. We deny the petition.
Factual and Procedural Background
Some is a native and citizen of Kenya who last was admitted to
the United States on January 17, 2002. She was not authorized to
stay in the United States beyond July 16, 2002. In January 2003,
Some applied for asylum. In March 2003, the Immigration and
Naturalization Service (“INS”) issued Some a Notice to Appear,
charging her with being removable under 8 U.S.C. § 1227(a)(1)(B) on
the ground that she had remained in the United States for longer
than the time permitted. Some conceded removability in April 2003
and requested asylum, withholding of removal, and protection under
the Convention Against Torture.
In October 2003, an immigration judge (“IJ”) held a removal
hearing. At that hearing, Some testified that, since 1995, she had
been a member of the Eagles Group, a social group of about twenty
women who helped each other financially. Some and most of the
other Eagles Group members lived in Nairobi. Some testified that
the Eagles Group provided money, clothes, food, and supplies to a
school that was being built with the help of the Seventh Day
Adventist Church and local chiefs. She also testified that, in
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January 2000, she and a number of other Eagles Group members
visited a village with the area’s Masai chief to bring some girls
from the village to the school. The Eagles Group thought that
taking the girls to the school would prevent the girls from being
subjected to female genital mutilation and young marriages.
Some also testified that, after Masai villagers took the girls
from the school, she and other Eagles Group members went back to
the village and brought the girls back to the school. She claimed
that, around that time, she and almost all the other Eagles Group
members started receiving threatening letters. Most of those
Eagles Group members still live in Nairobi, and the school’s
enrollment has increased. Some does not claim that any of the
Eagles Group members have been hurt.
According to Some’s testimony, she continued to receive
letters threatening to kill her and her family, to rape her, and to
perform female genital mutilation on her. In fact, she testified
that threatening letters still were being delivered to her Nairobi
home at the time of her hearing before the IJ. Some did not place
any of these letters into the record or save them.
Some also testified that, in May 2000, members of the Masai
tribe jumped over the gate of her home and cut at the grates of her
house. She told a friend that they killed her dog when he tried to
bite them. Some escaped through her back door. After she called
her husband, he told her to come home and she returned there
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safely.
In addition, Some testified that, in January 2001, she and
others took gifts to the school. When they were returning from
delivering the gifts and were twenty miles from the school, some
people from the Masai and Mungiki tribes threw stones at one of
their cars, damaging the windshield.
The following month, Some briefly traveled to Uganda, but
returned to Kenya. In March 2001, Some traveled to the United
States, where her children were students and returned to her home
in Nairobi in August 2001. According to Some, in October 2001, she
again brought gifts to the school and people subsequently came to
her home again and left threatening notes.
Some also testified that, in December 2001, she visited family
in Turbo, which is about 400 kilometers from Nairobi. According to
her testimony, on about December 15, members of the Mungiki and
Masai tribes came with spears and daggers and threatened her and
tried to break into the home where she was staying. However, these
tribe members fled in their car when they saw other people coming
in response to the cries of Some and her family. Some and her
family remained in Turbo to celebrate Christmas.
In January 2002, Some traveled to the United States and
visited her children who were attending school there. She had a
return ticket and testified that her husband expected her to return
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to Kenya, but that she did not intend to return because she
believed her life was in danger and she would be raped and
circumcised.
After conducting the hearing and receiving evidence, the IJ
issued an oral decision denying Some’s application for asylum,
withholding of removal, and protection under the Convention Against
Torture. In the course of providing her decision, the IJ noted a
number of peculiarities and implausibilities and found that Some’s
testimony that her involvement in the school led to threats made
“very little sense.” The IJ also stated that she did
not believe the respondent’s testimony that she went to
her uncle’s home in Turbo and very shortly after arriving
there, 15 Masai warriors and Mogiki cult members showed
up, threatening to kill her. This incident bears no
contemporaneous relationship to any activity of this
respondent with respect to this girl’s school.
The IJ concluded that Some’s claims that people not of her
tribe threatened to kidnap, rape, genitally mutilate, and kill her
was “a phenomenal gross exaggeration” of any threat Some ever might
have received. The IJ ultimately found that “the respondent’s
claim that she had left Kenya because of subjective fears, given
that she traveled in and out of Kenya after coming here on two
prior occasions, lacks credibility.” The IJ further concluded
that, even if Some had subjective fears, those fears were not well
founded and she therefore failed to establish eligibility for
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asylum.
Some appealed the IJ’s decision to the BIA. The Government
did not file a brief in opposition to the appeal.1 In a written
order issued on July 13, 2005, the BIA affirmed the IJ’s decision
and dismissed the appeal. The BIA first stated that “although the
Immigration Judge did not make an explicit adverse credibility
finding . . . it is clear that she found the respondent not
credible given that she viewed the respondent’s threat as a
‘phenomenal gross exaggeration’ and concluded that her testimony
‘made little sense.’” The BIA also noted that the IJ concluded
“that the respondent’s motivation for leaving Kenya ‘lack[ed]
credibility’ given that she traveled back to Kenya – while
believing that her life was in danger there – on two prior
occasions after visiting the United States.”
The BIA then held that there was no clear error in the IJ’s
adverse credibility finding. In reaching this conclusion, the BIA
reasoned that Some had “not shown how her involvement with the pro-
women’s Eagles Group and the Seventh-Day Adventist School would
cause her to become a target for violence given that no other
Eagles Group member has apparently been harmed and that the school
1
Some claims that the Attorney General’s failure to file a
brief with the BIA bars him from filing a responding brief before
this court. There is no basis in law for this argument. If the
Attorney General were to raise new issues before this court, that
would be another matter, but that is not the case here.
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was endorsed by a Masai village chief and other local residents.”
The BIA also explained that the school’s enrollment continues to
expand and that most of the school officials and Eagles Group
members still reside in Kenya. In addition, the BIA emphasized
that, although Some claimed that she received over ten letters
threatening her and that she continues to receive such letters, she
did not produce any of them. The BIA then cited to the IJ’s
decision and concluded that, as a result of “these and other
implausibilities in the record,” the IJ did not clearly err in her
adverse credibility ruling.
The BIA went on to assess the case based on the assumption
that Some was credible. The BIA concluded that Some “failed to
present any reliable evidence demonstrating either past persecution
or an objectively reasonable well-founded fear of persecution on
account of any of the five enumerated grounds in the Act.” The BIA
therefore concluded that Some had failed to meet her burden of
proof for asylum and had failed to establish eligibility for
withholding of removal or for relief under the Convention Against
Torture.
Jurisdiction and Standard of Review
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We must
uphold the BIA’s determination that a person is not eligible for
asylum if that decision is supported by reasonable, substantial,
and probative evidence in the record considered as a whole. INS v.
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Elias-Zacarias, 502 U.S. 478, 481 (1992); Fesseha v. Ashcroft, 333
F.3d 13, 18 (1st Cir. 2003). This deferential standard requires
the petitioner to show that no reasonable factfinder could fail to
find the requisite fear of persecution. Fesseha, 333 F.3d at 18;
see also 8 U.S.C. § 1252(b)(4)(B)(2000) (“The administrative
findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”).
We also review adverse credibility findings under the
substantial evidence standard. Chen v. Gonzales, 418 F.3d 110, 113
(1st Cir. 2005). “If the adverse credibility decision is supported
by substantial evidence – that is, if we cannot say a finding that
the alien is credible is compelled – then the decision must be
affirmed.” Id. When an asylum applicant “produces testimony
showing a pattern of specific threats giving rise to a well-founded
fear of persecution, the IJ must, if she or she chooses to reject
that testimony as lacking credibility, offer a ‘specific, cogent
reason for [the IJ’s] disbelief.’” Gailius v. INS, 147 F.3d 34, 47
(1st Cir. 1998) (citation omitted).
Discussion
The Attorney General may grant asylum to an alien who is
otherwise inadmissible or deportable, but only if the alien is a
“refugee.” 8 U.S.C. § 1158(b)(1). A refugee is an alien “who is
unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, [her home] country
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because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
The burden is on the alien to prove refugee status. Fesseha, 333
F.3d at 18; 8 C.F.R. § 208.13(a).
A rebuttable presumption arises that an alien who has been
persecuted in the past has reason to fear similar persecution in
the future. Matter of Chen, 20 I&N Dec. 16, 18 (BIA 1989).
Persecution “requires more than occasional detention, and, indeed,
more than occasional instances of physical abuse.” Nelson v. INS,
232 F.3d 258, 265 (1st Cir. 2000). Thus, even assuming that the
alleged assaults and property damage occurred and were based on an
enumerated ground in connection with the Kenyan government, this
conduct would not be sufficient to compel a conclusion that Some
suffered past persecution.
There remain the alleged threats of rape, female genital
mutilation, and death. Although death threats may be sufficient to
find past persecution, those death threats must be credible. Un v.
Gonzales, 415 F.3d 205, 210 (1st Cir. 2005) (remanding for a
determination of whether threats rising to the level of persecution
were made).
Some argues that credibility should not even be an issue on
appeal because the IJ did not make an explicit adverse credibility
finding. This argument has no merit. Although it must be clear
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from the IJ’s decision that the IJ did, in fact, find the alien not
to be credible, an adverse credibility ruling “does not require the
recitation of unique or particular words.” de Leon-Barrios v. INS,
116 F.3d 391, 394 (9th Cir. 1997).
In the instant case, the IJ made it quite clear that she found
parts of Some’s testimony not to be credible. The IJ found, inter
alia, that Some’s description of the threats was a “phenomenal
gross exaggeration.” She also found that “the respondent’s claim
that she had left Kenya because of subjective fears, given that she
traveled in and out of Kenya after coming here on two prior
occasions, lacks credibility.” Thus, it is clear that the IJ found
that Some’s testimony was not credible with regard to the alleged
threats.
We hold that substantial evidence supports the adverse
credibility finding. First, if Some genuinely received credible
threats of rape, mutilation, and death, it seems unlikely that she
would return to her home, where she was receiving the threats.
Returning to the country of asserted persecution may undercut an
alien’s credibility concerning the alleged fear of persecution.
See Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003) (affirming
an adverse credibility finding, in part because the alien twice
returned to the country of persecution after trips abroad). After
she allegedly began receiving threats, Some twice left and returned
to Kenya and even returned to her home in Nairobi where she
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received the threats.2
Second, although Some claimed that she continued to receive
threatening letters even after applying for asylum and she must
have known that the threats were critical to her chances of success
in obtaining asylum, she did not produce even one of the
threatening letters, relying instead on her own testimony and
testimony from her family. Corroborating evidence of threats
generally is not required to establish an asylum claim if the
applicant’s own testimony is credible. Gailius v. INS, 147 F.3d
34, 45 (1st Cir. 1998). This is because refugees rarely are in a
position to offer direct corroboration of specific threats. Id.In a situation where corroborating evidence is available to the
alien, however, the failure to produce that evidence may be used to
support an adverse credibility finding. See Albathani, 318 F.3d at
373. Here, Some claimed that threatening letters still were being
delivered to her home following her application for asylum, but she
did not produce the letters themselves, choosing instead to have
her daughter testify and have her husband simply send his own
letter claiming that the threatening letters really did exist.
Although the evidence presented may corroborate part of Some’s
2
Although Some takes issue with the IJ’s factual findings
regarding exactly which countries Some visited and when, it is
indisputable that, after allegedly receiving the threats, Some
twice left Kenya and then returned to Kenya and to her home there.
On one of these trips, she visited the United States, did not
request asylum, and then returned to Nairobi.
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testimony, it is not the kind of corroboration one would expect.
Taking into account both Some’s return to her home and her
failure to produce the letters, we find that substantial evidence
supports the IJ’s adverse credibility finding. As a result, we
also find that there is substantial evidence to support the finding
that Some did not experience past persecution.
For similar reasons, we conclude that there is substantial
evidence that, independent of alleged past persecution, Some did
not have a well-founded fear of persecution.3 In examining whether
a person has a well-founded fear of future persecution, we
determine whether a reasonable person in the asylum applicant’s
position would fear persecution on a statutorily protected ground.
Khalil v. Ashcroft, 337 F.3d 50, 56 (1st Cir. 2003). Some visited
the school and the Masai village only a handful of times. In
addition, although most of the Eagles Group members received
threats and still live in Kenya, there is no evidence that any of
them have been harmed as a result of their involvement with the
3
The standard for withholding of removal is higher than the
standard for granting asylum, so a failure to meet the asylum
standard of a well-founded fear of persecution necessarily means
that the petitioner did not meet the withholding of removal
standard of a clear probability of persecution. Aguilar-Solis v.
INS, 168 F.3d 565, 569 n.3 (1st Cir. 1999). Similarly, Some has
not met the Convention Against Torture’s requirement that it is
more likely than not that the petitioner will be tortured. See 8
C.F.R. § 208.16(c)(2). Thus, Some’s failure to establish that she
is eligible for asylum necessarily means that she is not entitled
to withholding of removal.
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school. Thus, there is insufficient evidence to compel the
conclusion that a reasonable person in Some’s situation would fear
persecution.
The petition for review is denied.
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