Saeed v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 9, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MUNA BEKHIT MOHAMED SAEED,
Petitioner, 05-9528
v. (BIA No. A96 290 004)
ALBERTO GONZALES, United States (Petition for Review)
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before TYMKOVICH, and BALDOCK, Circuit Judges, and FIGA,** District Judge.
Petitioner Muna Saeed seeks review of a Board of Immigration Appeals’s (“BIA”)
final order of removal. The BIA affirmed the Immigration Judge’s (“IJ”) order denying Ms.
Saeed’s claim for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and deny the
petition for review.
*
This order and judgment is not binding precedent, except under the doctrines of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.
**
The Honorable Phillip S. Figa, United States District Judge for the District of
Colorado, sitting by designation.
BACKGROUND
Ms. Saaed, an Eritrean citizen, was born in Ethiopia in a city now part of Eritrea. Ms.
Saeed contends that in 1967, at age three, she and her mother and two brothers fled Eritrea
for Sudan. That followed the sudden disappearance of her father, who was a member of the
Eritrean Liberation Front (“ELF”), an Eritrean “armed opposition group” according to the
State Department. In Sudan, the family became members of ELF. Her brothers left to fight
for ELF in 1979 and Ms. Saeed has not heard from them since that time.
Ms. Saeed claims while living in Sudan, she attended weekly ELF meetings, after
joining at age 13. She further contends that within weeks of each other in 1998, she received
a threatening letter from a political party currently in control of Eritrea that opposes ELF, she
went into hiding for nearly a month, and her mother died. Ms. Saeed thereafter secured work
in Saudi Arabia. However, she first returned to Eritrea, under cover, to obtain a passport
with the help of a man she hired. She eventually traveled to Saudi Arabia and worked as a
housemaid.
Ms. Saeed asserts that the family employing her treated her as a slave, and that she
was raped by the patriarch of the family. The family brought her to the United States in
February 2002 via New York. She escaped from the family and traveled by bus to Colorado,
where relatives of a friend from Saudi Arabia were living. Ms. Saeed then applied for
asylum, contending that if she were to return to Sudan or Eritrea, she would be tortured,
imprisoned or would lose her life.
Meanwhile, Ms. Saeed overstayed her authorization to remain in the United States as
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a non-immigrant visitor, and on April 1, 2003, the Immigration and Customs Enforcement
Service (“ICE”) began removal proceedings against her. On May 1, 2003, she appeared
before an IJ and conceded her removability but sought asylum, withholding of removal and
protection under CAT. A hearing was held on July 29, 2003, after which the IJ determined
that Ms. Saeed was not a credible witness and did not meet her burden for asylum or
withholding of removal. The IJ also denied her application for relief under CAT and ordered
her removed to Eritrea, a decision affirmed by the BIA on March 25, 2005, when it dismissed
her administrative appeal.
Ms. Saeed filed the instant Petition for Review on April 22, 2005. She contends that
the IJ improperly based his credibility determination on unsupported personal opinion and
minor inconsistencies in the record, that she meets the definition of a refugee, and that the
IJ was mistaken when he found that she had fled persecution 31 years earlier when she and
her family fled Eritrea. Rather, she claims that her flight from persecution occurred when
she left Sudan where she was threatened because of her ELF activities.
LEGAL STANDARDS
The two-step inquiry for disposition of an asylum application requires the applicant
to first show she is a refugee and suffered past persecution or has a well-founded fear of
future persecution. Second, the Attorney General has discretion to grant asylum but is not
required to do so. Elzour v. Ashcroft, 378 F.3d 1143, 1149 (10th Cir. 2004). Persecution is
defined as "the infliction of suffering or harm upon those who differ (in race, religion, or
political opinion) in a way regarded as offensive." Baka v. INS, 963 F.2d 1376, 1379 (10th
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Cir. 1992). Asylum may be granted if the IJ finds that the applicant seeking asylum meets
the definition of refugee within 8 U.S.C. §§ 1101(a)(42)(A) and 1158(b)(1). An applicant
for asylum must show that the persecution she fears is on account of race, religion,
nationality, membership in a particular social group, or political opinion. 8 U.S.C. §
1101(a)(42)(A). If a petitioner can show that she was persecuted in the past, then there is a
rebuttable presumption of future persecution. 8 C.F.R. § 1208.13(b)(1); Yuk v. Ashcroft,
355 F.3d 1222, 1233 (10th Cir. 2004). If not, a petitioner can meet her burden by showing
a reasonable possibility of persecution, a showing which includes a subjective and an
objective component. See Yuk, 355 F.3d at 1233.
To establish eligibility for withholding of removal, as in this case, an alien must
demonstrate a clear probability of persecution under a more likely than not standard, which
is more stringent than the well-founded fear of persecution standard in the asylum context.
Elzour, 378 F.3d at 1149. Therefore, an alien who fails to satisfy asylum eligibility
requirements necessarily fails to qualify for withholding of removal. Uanreroro v. Gonzales,
443 F.3d 1197, 1202 (10th Cir. 2006). An applicant for CAT protection is entitled to a
withholding of removal if it is shown that he or she more likely than not will be tortured in
the country to which the alien is to be sent. Id.Where as here, the BIA does not render its own opinion but simply affirms the IJ’s
decision, this Court reviews the IJ’s decision as if it were the BIA’s. Wiransane v. Ashcroft,
366 F.3d 889, 897 (10th Cir. 2004). The standard of review for an administrative finding of
fact is whether "any reasonable adjudicator would be compelled to conclude to the contrary."
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8 U.S.C. § 1252(b)(4)(B). This Court must uphold the administrative findings if they are
"supported by reasonable, substantial and probative evidence on the record as a whole."
Wiransane, 366 F.3d at 897 (quoting Krastev v. INS, 292 F.3d 1268, 1275 (10th Cir. 2002)).
In other words, this Court may not reverse the IJ’s determination that Ms. Saeed failed to
credibly establish past persecution or a well-founded fear of future persecution unless it finds
that a reasonable factfinder would be compelled to make the opposite determination. INS
v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); 8 U.S.C. § 1252(b)(4)(B).
ANALYSIS
Here, the IJ found that inconsistencies in Ms. Saeed’s testimony precluded him from
giving her the benefit of the doubt, and he determined that she lacked credibility and failed
to show past persecution or a well-founded fear of future persecution. Specifically, he found
the evidence inconsistent as to her membership in ELF. She testified that she joined ELF at
age 13, but a letter from the organization reflects that she joined at age 26. The IJ determined
that her explanation for this discrepancy–that she only started paying dues when she was an
adult–did not make sense, as she had been an adult for several years.
The IJ also found that Ms. Saeed offered vague testimony as to her membership in
ELF subgroups or committees. When finally asked specifically whether she was a member
of a women’s subdivision of ELF, she said yes and gave a name of the subgroup. However,
the name differed from the name listed in the letter from the organization confirming her
membership.
Further, Ms. Saeed gave conflicting testimony as to the date she received the
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threatening letter while in Sudan. She testified before the IJ that it was in 1998, but her
affidavit listed 1996 as the date of receipt. In response to questions by the government
attorney, she changed her testimony and said that it was in 1996, but later acknowledged that
she did receive the letter in 1998 and explained the date on the application must be a mistake
based on her inability to read and write English. The IJ conceded that “[n]ot all people
remember dates and that has to be forgiven, but everyone remembers the year that a parent
died. That was 1998 and one would think that clearly she would remember that because she
left the country within weeks of her mother’s death and within weeks of that same letter.”
Such a determination is not the application of a personal standard by the IJ but a candid
factfinder assessment of why the IJ thought the petitioner lacked credibility on a key point.
The IJ also discredited Ms. Saeed’s credibility on the basis that she testified she was
forced to live in hiding, but voluntarily took a bus to cross the border back into Eritrea and
obtained a passport there. The IJ found it difficult to believe “that a person would do this if
she really was a person who was singled out by the government and known to be a political
activist.” Such a finding is not unreasonable as a matter of law.
Based on the foregoing, the IJ’s decision to deny Ms. Saeed’s application is
“supported by reasonable, substantial, and probative evidence on the record as a whole.”
Krastev, 292 F.3d at 1275. The IJ’s determination that Ms. Saeed lacked credibility is based
on evidence in the record, as detailed above, as is his determination that she failed to
sufficiently establish past persecution or a well-founded fear of future persecution. The
record before this Court does not compel a contrary conclusion. See Elias-Zacharias, 502
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U.S. at 483-84. The inconsistencies in petitioner’s testimony, taken collectively, are not
necessarily “minor” as she contends.
PETITION DENIED.
Entered for the Court,
Phillip S. Figa
District Court Judge
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