Mooge v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 9 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HAKIM ABDI MOOGE,
Petitioner,
v. No. 02-9590
(BIA No. A76-853-904)
JOHN ASHCROFT, Attorney General (Petition for Review)
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner seeks review of a Board of Immigration Appeals (BIA) order
affirming a decision of the immigration judge (IJ) denying his application
*
This order and judgment is not binding precedent, except under the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.
for asylum, withholding of deportation, and relief under the Convention Against
Torture. We have jurisdiction under 8 U.S.C. § 1252(a).
Petitioner claims to be a citizen and native of Somalia. Admin. R. at 168.
He entered the United States through Canada with a Kenyan passport on or about
March 21, 1998. Id. at 205-06. He did not have his own passport, and the name
on the passport was not his. Id. at 206. He timely filed his application for
asylum and withholding of deportation shortly after his arrival and was
subsequently charged by the Immigration and Naturalization Service (INS) 1
with
entering the United States without a valid immigrant visa or entry document,
passport, or other travel document, in violation of 8 U.S.C. § 1227(a)(1)(A). Id. .
at 285. He conceded removability, but requested asylum, withholding of
deportation, relief under the Convention Against Torture, and voluntary
departure. 2
Id. at 143. He also declined to designate a country of deportation.
Id. at 220.
1
“The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (‘USCIS’) within
the newly formed Department of Homeland Security [DHS].” Batalova v.
Ashcroft , 355 F.3d 1246, 1248 n.1 (10th Cir. 2004). We refer to the INS rather
than DHS.
2
On appeal, he does not address the IJ’s denial of withholding of
deportation, denial of relief under the Convention Against Torture, or the denial
of voluntary departure. We therefore deem these issues waived. See Tran v.
Trs. of the State Colls. in Colo. , 355 F.3d 1263, 1266 (10th Cir. 2004).
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Following a hearing, the IJ found petitioner removable as charged and
denied his applications for relief, ordering him deported to Somalia, or,
alternatively, to Kenya. Id. at 131-38. The BIA summarily affirmed that decision
without opinion. Id. at 2. Because petitioner has failed to carry the heavy burden
placed on applicants challenging adverse asylum determinations, we deny his
petition for review.
Standard of Review
This case hangs almost exclusively on the credibility of petitioner’s
testimony, much of which the IJ did not believe. 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).
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Background
Petitioner testified he was born on February 2, 1975, in Mogadishu,
Somalia. 3 Admin. R. at 168. He stated he was a member of the Midgan clan,
a small, minority tribe. Id. at 172. Prior to the civil war in Somalia, petitioner’s
father was a civil engineer employed by the government; his mother was a
homemaker. Id. at 171. According to petitioner, after the departure of the last
president, dictator Mohamad Siad Barre, in 1991, and the ensuing civil war, the
family fled Mogadishu frequently but always returned. Id. at 211-12. Petitioner
stated that in May of 1992 his parents were killed while he was out getting food
from the market. Id. at 173. He learned of the killings from a family friend. Id.
Petitioner stated that his younger brother witnessed the killings while hiding
under a bed. Id. at 173. Because of the widespread fighting and killings, he fled
the city with his younger brother and sister. Id. at 175. 4
While on the road, their car was stopped by members of the United Somalia
Congress, which is made up of the majority Hawiye clan. Id. at 175, 178.
3
He first recited this date as February 12, 1974. Admin. R. at 168. In
addition, the copy of his Somali identification card lists his birth date as
January 12, 1974. Id. at 208. When questioned by the IJ, petitioner reaffirmed
that he was born on February 12, 1974. Id.
4
He also testified, inconsistently, he was about sixteen (instead of eighteen)
when this happened. Admin. R. at 175. He later repeated the error in how old he
was when his parents were killed. Id. at 216.
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Petitioner testified that the men were taken to a detention center where they were
subjected to forced labor, beatings, and other mistreatment. Id. at 176-77. He
further claimed that a number of people were killed each day for no reason and
that he was beaten many times. Id. at 177. He spent twenty days at the camp,
until he was rescued by a friend of his mother’s who was able to buy his release.
Id. at 176-78. They continued their flight to Kismayo, Somalia, and later
to Kenya, id. at 180, where they stayed at a refugee camp near Nairobi.
Id. at 180-81.
Petitioner remained at the refugee camp approximately six years, even
marrying there. He was registered at the refugee camp, but his registration card
was also a meal ticket, and he gave it away when he left. Id. at 196-97. His
stated reason for leaving the camp was that the Kenyans were forcing some
refugees to return to Somalia. Id. at 197-99. He left his brother and sister with
the family friend who had helped them, id. at 198. He also left his wife of less
than a year. Id. at 199. He asserted he obtained the money necessary to fly to the
United States 5
from this same family friend. Id. at 200. After spending two days
in New York, he received an airplane ticket to Seattle, Washington. Id. at 203-04.
5
Petitioner flew to Toronto, Canada, and crossed into the United States by
car. Canadian immigration authorities accepted his passport, which he testified
carried his picture but not his real name. Admin. R. at 206.
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Immigration Decision
The IJ first found that the basis for petitioner’s asylum claim was his
ethnicity and the past persecution he and his family had suffered. Id. at 132.
The IJ noted the difficulties with relying on certain documentary evidence,
e.g. , petitioner had a “photo-substituted” Kenyan passport, which was sufficiently
reliable to be accepted for admission by immigration authorities in both Canada
and the United States. Indeed, the IJ found that the passport itself cast doubt on
petitioner’s claimed Somali citizenship, indicating that petitioner “may be, in fact,
Kenyan.” Id. at 133. The IJ also noted that petitioner’s Somalia identification
card could not be admitted into evidence because it was not accompanied by a
certified translation, the photograph on the I.D. card did not appear to be that of
petitioner, proper comparison was hampered because the original card was not
provided (only a copy), 6
and the birth date on the card did not match petitioner’s
stated birth date. Id.
Thus the IJ determined he was “forced to rely almost exclusively on
[petitioner’s] testimony in determining whether or not he has met his burden of
proof [as to asylum eligibility].” Id. at 134. The IJ further found specific
6
At the hearing there was some discussion, although not a fully satisfactory
explanation, of why petitioner had not brought the original I.D. card with him to
the hearing. Admin. R. at 161-65. The IJ also expressed some doubt that
petitioner was the same person the I.D. card’s photograph depicted. Id. at 163-64.
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inconsistencies in petitioner’s testimony, e.g. , petitioner’s inability to recite his
ancestry consistently 7
and his incorrect recitation of his age when his parents were
killed. Id. at 135, 216. The IJ found it improbable that petitioner’s family could
have survived the clan warfare in Mogadishu for sixteen months after Siad
Barre’s departure and noted that only when questioned about this by the IJ did
petitioner explain the many flights from Mogadishu during this time period. Id. at
135-36; 211-12. The court was also unpersuaded that petitioner had been living
in a refugee camp outside Nairobi when the address given on the asylum
application appeared to be a city street address. Id. at 136-37.
Based on the “implausibilities and inconsistencies” in petitioner’s
testimony, the IJ found “that testimony to be noncredible.” Id. at 137. With
“no other compelling pieces of evidence,” the IJ found petitioner had failed to
meet his burden of proof. Id.
Discussion
On appeal, petitioner raises the following issues:
1. Whether the IJ “erred in ruling as a matter of law” in determining
petitioner did not supply credible evidence to establish refugee
status.
7
Being able to recite one’s ancestors is important to the establishment of
tribal memberships. Admin. R. at 217-19. When asked to recite his ancestors,
petitioner gave varying answers on five occasions. Id. at 170, 216-17.
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2. Whether the BIA erred in applying the streamlining provisions of
C.F.R. § 3.1(a)(7) (now codified at 8 C.F.R. § 1003.1(a)(7)) to this
case and, if so, whether the error was prejudiced or a violation of
due process under the Fifth Amendment.
3. Whether the streamlining procedures of 8 C.F.R. § 3.1(a)(7) as a
whole violate due process.
A. Streamlining Procedures
Because the second and third issues are both related and governed by this
court’s recent decisions, we consider them together and first. The regulations
have been recodified, e.g. , 8 C.F.R. § 3.1(a)(7) is now 8 C.F.R. § 1003.1(a)(7).
We refer to the current version.
Petitioner argues that the BIA erred in applying the streamlining provisions
of 8 C.F.R. § 1003.1(a)(7) to this case. 8
We have upheld these provisions against
various challenges, both administrative and constitutional. See Yuk , 355 F.3d
at 1228-32 (upholding summary affirmance regulations as comporting with
due process and administrative law principles); Batalova , 355 F.3d at 1251-54
(upholding review by single BIA member); Sviridov , 358 F.3d at 726-27(upholding BIA’s procedures against claim that BIA failed to comply with
applicable regulations and denied petitioner due process).
8
The case was actually decided in accordance with 8 C.F.R. § 1003.1(e)(4).
See Admin. R. at 2. However, as a practical matter, the provisions of (a)(7)
and (e)(4) are in every material respect identical. See Batalova , 355 F.3d at
1254 n.10.
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Moreover, because we assume BIA members perform their jobs thoroughly,
absent any indication to the contrary, we assume the BIA member to whom the
appeal was assigned reviewed the record before deciding to adopt the IJ’s
decision. See Batalova , 355 F.3d at 1252. Finally, petitioner’s “administrative
objection–that this case was inappropriate for streamlined review in light
of significant errors in the IJ’s analysis–is undercut by our conclusion that the
IJ’s determination was in fact correct.” Ustyan v. Ashcroft , ___ F.3d ___,
No. 02-9596, 2004 WL 1091754, at *3 (10th Cir. Apr. 8, 2004). Hence,
petitioner’s challenge to the BIA’s procedures must fail.
B. Eligibility for Asylum
In order to obtain asylum, petitioner was required to prove first he is
a refugee within the statutory definition of 8 U.S.C. § 1101(a)(42)(A). Batalova ,
355 F.3d at 1254. 9
Then he must persuade the Attorney General, in his discretion,
to grant relief under 8 U.S.C. § 1158(b). Id. Here, as in Batalova , the IJ
determined petitioner failed to establish refugee status, and we therefore review
only that initial question. Id. In reviewing that decision, we must determine
whether the record substantially supports the determination that petitioner failed
9
The statute defines a refugee as a person outside any country of his
nationality who is “unable or unwilling to return to . . . that country 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).
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to establish refugee status, id. , or, instead, “is so decisively to the contrary that
a reasonable factfinder would have concluded petitioner is a refugee.” Vatulev
v. Ashcroft , 354 F.3d 1207, 1209 (10th Cir. 2003).
In line with our highly deferential standard of review, we do not question
the IJ’s credibility determinations “as long as they are substantially reasonable.”
Woldemeskel , 257 F.3d at 1192. Indeed, credibility is a factual finding, not to be
disturbed if “substantially reasonable and supported by specific, cogent reasons.”
Sviridov, 358 F.3d at 729 ; see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”). Upon careful review, we are
not compelled. See Ustyan , 2004 WL 1091754, at *2 (where IJ’s assessment not
contrary to what reasonable factfinder would be compelled to conclude, we may
not disturb IJ’s decision).
The IJ in this case supported his determination with the required specific
and cogent reasons. Petitioner’s claim that he improperly recited his ancestors at
the hearing because he was nervous and that the true purpose of the recitation
exercise by the Hawiye forces was to detect dialect (and thus clan membership)
simply asks us to weigh or reweigh the evidence, which we cannot do. See
Woldemeskel , 257 F.3d at 1192. The same holds for petitioner’s argument that
the IJ failed to address critical evidence, specifically a letter from a family friend
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submitted in corroboration of petitioner’s claim of persecution and Somalian
identity. See Aplt. Br. at 22-23; Admin. R. at 272-73. To the contrary, the IJ
found that “[t]here [were] no other compelling pieces of evidence which would
allow the [c]ourt to find that [petitioner] has met his burden of proof without
credible testimony in support of his application .” Admin. R. at 137 (emphasis
added). Moreover, “the [IJ] is not required to discuss every piece of evidence
when [he] renders a decision.” Hadjimehdigholi v. INS , 49 F.3d 642, 648, n.2
(10th Cir. 1995). There is nothing to support petitioner’s claim that the IJ did not
consider this evidence.
Conclusion
We have carefully examined the record and conclude that the IJ’s
credibility determinations are substantially reasonable. See Woldemeskel ,
257 F.3d at 1192. In addition, the IJ’s decision is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole” and will
be upheld for that reason. Id. at 1189 (quotation omitted). For these reasons, we
DENY the petition for review and AFFIRM the BIA’s decision.
Entered for the Court
David M. Ebel
Circuit Judge
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