Kumah v. Ashcroft

Not for Publication in West's Federal Reporter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. 03-1648
FRANK KUMAH,
Petitioner,
v.
JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Saher J. Macarius and Law Offices of Saher J. Macarius on
brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Office of
Immigration Litigation, Civil Division, Department of Justice,
David V. Bernal, Assistant Director, Office of Immigration
Litigation, Civil Division, Department of Justice, and Russell J.E.
Verby, Office of Immigration Litigation, Civil Division, Department
of Justice, on brief for respondent.
July 14, 2004
Per Curiam. Frank Kumah is a native of Ghana who entered
the United States without permission in January 1994. In March
1999, the Immigration and Naturalization Service ("INS"), as it was
then known, began removal proceedings. Kumah requested asylum
based on an application and supporting affidavit that he had filed
in September 1994.
In April 2000, a hearing on Kumah's asylum application
was held at which he testified. In substance, he said that in 1992
he had become an organizer and regional secretary for the New
Patriotic Party, in opposition to the military government under
Jerry John Rawlings. Kumah participated in rallies and then, after
the November 1992 elections which Rawlings won, in protests which
were dispersed with violence. Kumah said that in December 1992 he
attended an evening party meeting in a school building and was then
arrested by police along with others and held for 12 days in bad
conditions.
Kumah also testified that after 12 days, he escaped
during a transfer to another prison, hid in the house of a friend
who helped him to escape from the country and then after about a
year arrived in the United States. A written statement from the
friend was offered stating that Kumah had arrived at his house
after detention, but giving the date of arrival as one day after
the date that Kumah gave for his arrest. Based on this and certain
-2-
other discrepancies, the immigration judge found Kumah's testimony
not credible and denied the asylum application.
The Board of Immigration Appeals ("Board") affirmed
without opinion pursuant to 8 C.F.R. § 1003.1(a)(7) (2004). Kumah
now seeks review in this court. On review, the immigration judge's
decision must stand if supported by substantial evidence, see
Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003); and
credibility judgments are ordinarily respected so long as the
immigration judge has "a specific, cogent reason for . . .
disbelief." Qin v. Ashcroft, 360 F.3d 302, 306 (1st Cir. 2004)
(quoting earlier precedents).
We think the credibility determination is sufficiently
supported, although just barely so. The immigration judge pointed
to a set of specific discrepancies including the unexplained
conflict in dates, inconsistent statements by Kumah himself as to
whether he was handcuffed on his arrest, and a supposed (although
debatable) discrepancy as to whether Kumah was arrested inside the
building or out. This is some, but hardly overwhelming, evidence
tending to discredit.
There might have been a misrecollection as to dates or
even a typographical error in the friend's statement, although
Kumah offered the statement along with his own testimony and was
free to explain the fairly obvious discrepancy. Whether Kumah was
handcuffed or not is a contradiction a little harder to explain but
-3-
is more of a detail than a central question like how long Kumah was
in custody. As to the issue of whether he was arrested inside or
outside the building, Kumah did explain why there should be no
inference of a contradiction although the immigration judge was not
compelled to accept the explanation. Nevertheless, these are not
details unrelated to the main story of persecution, and the
immigration judge did have the advantage of watching the witness
testify.
If the immigration judge disbelieved Kumah as to central
incidents, he was permitted, although not compelled, to disbelieve
the basic story. See Qin, 360 F.3d at 308; Yongo v. INS, 355 F.3d
27, 33 (1st Cir. 2004). This is so even though there was
background evidence as to conditions in Ghana in the early 1990s
making it clear that Kumah's party was the subject of harassment by
the Rawlings government and that there were arrests of party
supporters. On a cold record, the immigration judge's result is
somewhat surprising, but it is explained; the explanation is not
fanciful or unsupported by the record and some deference is due
immigration judges who not only see the witness but handle the very
large number of similar cases.
There is a hint in the immigration judge's decision that
he did not regard the claim of past persecution as very powerful
even if Kumah's description were true. Although Kumah claimed to
have been beaten several times during the breakup of rallies, such
-4-
random and anonymous brutality would not likely justify a fear of
future persecution for an individual; and the only violence that
Kumah described in prison was that he was beaten for refusing to do
assigned work on the prison farm. He testified that he understands
that there is now a warrant out for his arrest, but there is no
clear indication whether it is for political crimes or merely for
escaping from prison.
The background information as to events in Ghana which is
part of the record suggests that by the time of the hearing in
2000, political repression in Ghana had somewhat lessened and
Kumah's party had minority representation in Parliament, although
some abuses apparently continued. However, the immigration judge
did not rely upon changed circumstances but instead rejected
Kumah's story based on inconsistencies; and it is on this latter
basis that we uphold the result.
Kumah makes several other claims of error, but only two
require brief comment. First is the assertion that administrative
law principles required the Board to give reasons for its summary
affirmance. This argument has already been rejected by other
panels of this court. Yongo, 355 F.3d at 34-35; Albathani, 318
F.3d at 377-78. Finally, we reject Kumah's contention that
affirmance without opinion in his case was improper under 8 C.F.R.
§ 1003.1(a)(7)(ii). Assuming arguendo that the Board's decision to
affirm without opinion in particular matters is separately
-5-
reviewable, this case is a fact-specific credibility matter and
involved no new legal issues.
The petition for review is denied.
-6-