Muhammad v. Holder

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1705
MUHAMMAD HANIF,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Syed Zaid Hassan on brief for petitioner.
Kevin J. Conway, Trial Attorney, U.S. Department of Justice,
Civil Division, Stuart F. Delery, Principal Deputy Assistant
Attorney General, and Richard M. Evans, Assistant Director, on
brief for respondent.
July 22, 2013
KAYATTA, Circuit Judge. In his 2008 application for
asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (CAT), Muhammad Hanif claimed that he
had left Pakistan due to political persecution he had suffered at
the hands of police as a result of his membership in an out-of-
power political party, Jamaat-e-Islami ("JI"). In the hearing that
followed, he told a different story, portraying the police as
having aided JI's recruiting efforts and as having failed to assist
him when he was beaten by JI members. And a few years earlier, at
a hearing before the Canadian Immigration and Refugee Board, Hanif
testified that he left because he was actually beaten by the police
themselves.
In light of the variation between Hanif's three accounts,
the Immigration Judge (IJ) who reviewed the 2008 application did
not credit Hanif's testimony. As a result, after holding that the
asylum application was time-barred, she rejected his claims for
withholding and CAT relief. The BIA affirmed, and Hanif now seeks
review, challenging only the withholding of removal ruling and
doing so only on the ground that the IJ's adverse credibility
determination was improper. For the reasons set forth below, we
deny his petition.
I
Muhammad Hanif, a native and citizen of Pakistan, left
Pakistan for the United Kingdom in 1998. He soon traveled to
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Canada, where he unsuccessfully sought refugee status. In the year
2000, he entered the United States without inspection. On
November 15, 2006, the Department of Homeland Security served Hanif
with a Notice to Appear, charging that he was removable as an alien
present in the United States without admission or parole, see 8
U.S.C. § 1182(a)(6)(A)(i), as an alien not in possession of a valid
visa or entry document, see id. § 1182(a)(7)(A)(i)(I), and as an
alien who had sought to procure a visa through fraud, see id.
§ 1182(a)(6)(C)(i).
Hanif conceded removability on the first two grounds, but
in an attempt to avoid removal, on January 18, 2008, he filed an
application for asylum, withholding of removal, and CAT relief.
See 8 U.S.C. § 1158 (asylum); id. § 1231(b)(3)(A) (withholding); 8
C.F.R. § 1208.16 (CAT). In his application, he wrote that he had
left Pakistan due to political persecution that he suffered as a
treasurer of JI, an out-of-power political party. Specifically, he
claimed, on February 14, 1998, the police attacked the party's
office and injured several members. He fled and went into hiding
before eventually leaving the country, though police continued to
search for him. When his cousin assumed the position of treasurer,
the cousin was arrested and tortured. Hanif claimed that, due to
his affiliation with JI, he feared being arrested and tortured if
he returned to Pakistan.
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That was the story Hanif told in his application. But in
his appearance before the IJ on December 14, 2009, Hanif explained
his basis for relief differently. In this version, the police
assumed the role of JI enforcers, rather than JI antagonists.
Hanif testified that he feared persecution from the police not on
account of his JI membership, but instead because he voiced
objections to JI efforts at jihad. He claimed that he became
involved with the party solely due to its provision of social
services to Pakistan's poor, and that when he learned a separate
branch of the party was involved with sending local youths to join
"mujahideen" in "jihad" against non-Muslims, he became
disillusioned. At a party meeting on February 14, 1998, Hanif
claimed, he spoke against jihad and was beaten by other members of
the party. He complained to the police and named those who had
beaten him, but when police brought the attackers in for
questioning and the attackers claimed that Hanif was "becoming a
non-Muslim," the police released the attackers and detained Hanif
overnight without providing food.
Hanif further testified that the police released him the
following day, but only after he agreed to support JI. During the
time he was imprisoned, JI's offices had been damaged in protests
related to oil development, but had not been attacked by the
police. Following his release, Hanif went into hiding. Party
members contacted his family members and attempted to contact him
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as well in an attempt to convince him to rejoin the party and
promote jihad. They also filed an investigatory complaint against
him with the police in order to pressure him into rejoining, and
the police began surveilling him. Eventually, Hanif left the
country, but his cousin, the new JI treasurer, has since been
arrested as part of a crackdown on anti-government protests. Hanif
claimed that he feared that "they"--an ill-defined group of "jihadi
organizations"--would have him arrested and killed if he returned
to Pakistan.
On July 15, 2010, after considering Hanif's application
and testimony, the IJ denied each of the three forms of relief
Hanif requested. First, she concluded that his asylum application
was untimely, because it was not filed within one year of entering
the United States, see 8 U.S.C. § 1201(a)(42)(A), as an asylum
application must be unless an applicant can demonstrate changed or
extraordinary circumstances, id. Hanif filed his application more
than seven years after entering the United States, and--despite
Hanif's arguments to the contrary--the IJ concluded that the arrest
of his cousin did not constitute a changed circumstance. Hanif
does not challenge this ruling in his petition for review.
Second, the IJ denied Hanif's request for withholding of
removal. Withholding is available when an applicant demonstrates
that in the proposed country of removal, it is more likely than not
that his or her "life or freedom would be threatened" on account of
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one of the statutorily protected asylum grounds. 8 U.S.C.
§ 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). An applicant has the
burden of establishing the credibility of his or her application.
8 C.F.R. § 1208.16(b).
Hanif's testimony and application were, as we have seen,
"extremely inconsistent," and the IJ concluded that Hanif was not
a credible witness. Indeed, in addition to the two conflicting
grounds--persecution for his commitment to JI and persecution for
his opposition to JI--on which Hanif had sought relief in this
action, the IJ noted that Hanif had presented a third account when
seeking refugee status in Canada. In this third version, presented
to the Canadian Immigration and Refugee Board, the police actually
beat Hanif themselves.
The IJ noted that "[o]ther than his presence in Pakistan
and membership in the Jamaat-e-Islami party, [Hanif's] claims have
been different in each instance." Hanif blamed the inconsistency
on translation errors, but the IJ rejected that explanation on the
twin grounds that Hanif had received the help of professional
translators and that he had gone into great detail in each of his
conflicting accounts. Ultimately, she found that "the Respondent
has provided thoroughly inconsistent versions of past events, and
those differences are further magnified by implausible testimony
and documentary submissions." Because the burden rested on Hanif
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to demonstrate that he had suffered past persecution, the IJ denied
relief.
Finally, the IJ denied Hanif's request for CAT
protection, which requires an applicant to demonstrate that it is
"more likely than not that he or she would be tortured" by or with
the acquiescence of the government in the proposed country of
removal. 8 C.F.R. § 1208.16(c)(2). The IJ concluded that, even if
she accepted Hanif's claim that he would be arrested if he returned
to Pakistan, he had not demonstrated that he "would be targeted for
torture or death."
Hanif did not seek BIA review of the IJ's denial of his
request for CAT relief, but he did seek review of the IJ's denials
of asylum and withholding of removal. The BIA affirmed the IJ's
rejection of Hanif's asylum application--a determination that Hanif
does not now challenge--and went on to affirm the rejection of
Hanif's withholding application, as well. In so doing, the BIA
noted that "the Immigration Judge's adverse credibility
determination is predicated upon inconsistencies between the
respondent's testimony, written application, and testimony before
the Canadian Refugee Board which are present in the record and
which provide specific, cogent reasons upon which to base an
adverse credibility determination."
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II
Hanif now seeks review of the BIA's order affirming the
IJ's denial of his application for withholding. In particular, he
argues that he adequately explained the inconsistencies regarding
his I-589--the form on which he applied for withholding--by stating
that "someone else filled out the relevant forms for him, albeit
[he] reviewed it." He also notes, without citation, that "[a]ny
other inconsistency regarding the incidents with the political
group was clarified during his testimony."
III
To state the standard of review is to decide this case.
After all, "[w]e accept an IJ's findings of fact, including
credibility determinations, as long as they are supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.
2007) (quotation omitted); see also 8 U.S.C. § 1252(b)(4)(B)
("[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary."). We reverse only in cases in which the evidence
"points unerringly in the opposite direction." Pan, 489 F.3d at 85(quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004)).
When the BIA adopts an IJ's decision and also discusses
some of the bases of that decision, we review both decisions.
E.g., Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir. 2007). In this
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case, the IJ's thorough opinion provides clear grounds on which we
must deny Hanif's petition. The IJ discredited Hanif's testimony
on the grounds that it "was extremely inconsistent with the claims
in his I-589 and his testimony before the Canadian Refugee Board."
She based that finding on the fact that "[o]ther than his presence
in Pakistan and membership in the Jamaat-e-Islami party, [Hanif's]
claims have been different in each instance." She further found
that the inconsistencies were not justified by the fact "that
[Hanif] did not speak English well," noting that Hanif "had the
benefit of a translator before the Canadian authorities, and his I-
589 contained explicit details such that this Court cannot see how
a translation error could have been the cause."
Moreover, the IJ noted "numerous other, more minor
inconsistencies" that suggested that Hanif was not credible. In
particular, Hanif "initially stated that he filled out his asylum
application himself, yet when confronted by inconsistencies between
the application and his testimony he stated that another person
filled out the application out for him." In short, the IJ relied
not only on the basic inconsistencies going to the very heart of
Hanif's claim, as she was entitled to, see 8 U.S.C.
§ 1158(b)(1)(B)(iii), but also on significant shortcomings
regarding Hanif's explanations of why he could not get his story
straight. Hanif sets forth no argument as to why she was not
entitled to do so. Rather, he simply says she was wrong.
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IV
Seen in the best possible light, therefore, Hanif's
argument amounts to a proposal that we adopt a requirement that
immigration judges credit inconsistent testimony so long as the
witness providing it explains the inconsistency. Bound as we are
to defer to the agency's factual determinations, we cannot adopt
such a rule.
The single factual finding that Hanif challenges is
adequately supported by the administrative record. Accordingly, we
deny the petition for review.
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