Kivumbi v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 23 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ALEX KIVUMBI,
Petitioner,
v. No. 03-9538
(No. A75-374-412)
JOHN ASHCROFT, (Petition for Review)
Respondent.
ORDER AND JUDGMENT *
Before HARTZ , McKAY , and PORFILIO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Petitioner seeks review of a decision of the Board of Immigration Appeals
(BIA) dismissing her appeal from the denial of her application for asylum,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
withholding of removal, and relief under the Convention Against Torture Act.
We have jurisdiction, and we deny the petition for review.
Petitioner is a native and citizen of Uganda. In her asylum application, she
claimed she was a member of the Uganda Human Rights Activists, that as a
photojournalist she took photographs of human rights abuses, and that her mother,
brother and husband were murdered by Ugandan soldiers. Admin. R. at 313.
She further claimed that in July of 1995, she was “detained without trial,”
tortured, and raped by Ugandan soldiers. Id. at 314. Petitioner entered the United
States in December of 1995 as a B-1 visitor. Her authorized stay expired in
November of 1997. Id. at 147.
Following a hearing, the immigration judge (IJ) denied asylum, withholding
of removal and relief under the Convention Against Torture Act, but granted
voluntary departure. Id. at 51. The BIA summarily affirmed the IJ’s decision
without opinion. Id. at 2.
In her petition for review, petitioner raises the following issues:
A. Whether an applicant for asylum who followed the misguided
instructions of a lay advisor from her native country and
submitted an application which contained inaccuracies and
exaggerations may be allowed to retract those statements and
offer testimony which is accepted as credible.
B. Whether it is appropriate and consistent with Due Process
rights for an Immigration Judge to attach significant weight to
the written assessment of an asylum officer who is not subject
to cross-examination.
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C. Whether an applicant who has made prior false statements
must submit corroboratory evidence to meet her burden of
proof, regardless of whether obtaining such evidence is
reasonably possible or not.
D. Whether summary dismissal of Petitioner’s appeal was
appropriate under the regulations governing Board of
Immigration Appeals procedures and, if so, whether these
procedures violated her Due Process rights.
Petitioner’s Br. at 7-8.
When the BIA summarily affirms the IJ, we review the judge’s decision as
if it were the BIA’s. See Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235 (10th Cir.
2003). We do not weigh the evidence, nor do we evaluate the credibility of
witnesses. Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004) (citing
Woldemeskel v. INS , 257 F.3d 1185, 1189 (10th Cir. 2001)). In addition, the
BIA’s factual findings “are conclusive unless the record demonstrates that any
reasonable adjudicator would be compelled to conclude to the contrary.”
Tsevegmid , 336 F.3d at 1235 (quotation omitted). The IJ must give “specific,
cogent reasons” for a determination that petitioner lacks credibility. Sviridov v.
Ashcroft , 358 F.3d 722, 727 (10th Cir. 2004).
From the outset, the parties have agreed that this case rests almost
exclusively on petitioner’s credibility, and the IJ simply did not believe her
testimony. She submitted no evidence in support of her claims other than the
several versions of the events underlying her claim of past persecution.
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The IJ carefully and thoroughly outlined the many discrepancies and
inconsistencies in petitioner’s story as described in her application, the asylum
interview and her hearing testimony. Admin. R. at 143-51. Moreover, petitioner
admits she “altered her story,” Petitioner’s Br. at 19, but suggests that the IJ gave
the asylum officer’s assessment report weight “grossly disproportionate to its
probative value.” Id. at 20. Contrary to petitioner’s argument, however, the IJ
gave appropriate consideration to her hearing testimony, her asylum application,
and the asylum officer’s assessment as support for his findings that petitioner
had been “giving false testimony throughout her history in the United States.”
Id. at 48.
Petitioner offers vague and generalized excuses for not having obtained
corroboratory evidence in support of her application, id. at 21-22, but expresses
no specific reasons she did not (or could not) do so. She claims to have “offered
reasonable explanations for the inconsistencies in her narrative,” id. at 22, but
again provides no specific citations to those inconsistencies or to her
explanations. Simply claiming that some “are the type of inconsistencies which
can readily be explained due to confusion,” id. at 20, is insufficient. Because the
IJ found as a factual matter that petitioner was not credible and no reasonable
adjudicator would be compelled to conclude to the contrary, see 8 U.S.C.
§ 1252(b)(4)(B), these findings are conclusive.
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Finally, petitioner argues that the BIA erred in summarily affirming the IJ’s
decision. This argument is foreclosed by recent Tenth Circuit authority. See
Sviridov , 358 F.3d at 726-27; Batalova v. Ashcroft , 355 F.3d 1246, 1253-54
(10th Cir. 2004); Yuk , 355 F.3d at 1230-32. Petitioner also maintains that review
by a single board member was inappropriate in this case. It makes no difference
whether the BIA acted through a single member, since we can directly and fully
review the IJ’s decision, which the BIA adopted. See Batalova , 355 F.3d at 1253
n.8. As indicated above, our review reveals no error in the IJ’s decision. Thus,
the BIA appropriately streamlined this case. See Sviridov , 358 F.3d at 727
(holding this court can review Board member’s decision to streamline).
The petition for review is DENIED.
Entered for the Court
John C. Porfilio
Circuit Judge
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