Marie Rose Charles v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 20, 2008
THOMAS K. KAHN
No. 07-14115
CLERK
Non-Argument Calendar
________________________
BIA No. A98-316-539
MARIE ROSE CHARLES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 20, 2008)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Marie Rose Charles petitions this court for review of the Board of
Immigration Appeals’ (the “BIA”) order of removal and denial of asylum relief.
For the reasons stated below, we deny the petition.
I. BACKGROUND
Charles, a native and citizen of Haiti, was admitted into the United States in
November 2003 as a non-immigrant visitor. On June 4, 2004, the Department of
Homeland Security initiated removal proceedings and issued her a Notice to
Appear charging that Charles had remained in the United States longer than
permitted. Charles conceded removability, but sought asylum, withholding of
removal, and protection under the U.N. Convention Against Torture (“CAT”). The
asylum claim is based on persecution Charles allegedly experienced on account of
her political beliefs while living and working as a school teacher in Haiti.
According to her asylum application statement and her testimony before the
Immigration Judge (the “IJ”), Charles joined the Mochrenha political party in
January of 2000. Mochrenha opposed then-President Aristide. Charles attended
Mochrenha meetings about twice a week for four to five months and worked for
Mochrenha as a translator for foreign visitors.
On May 9, 2000, Charles was attacked after leaving a Mochrenha meeting.
Some men approached Charles and her friend as they were getting into the friend’s
car and prevented the car from leaving. The men threw rocks at the two women
and broke the back windshield of the car. The men also beat both Charles and her
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friend. This incident left Charles’ face badly beaten and swollen. She now has a
medical pin in her arm as a result of being pulled out of the car. Charles identified
these men as members of Lavalas, a political group supporting Aristide’s
government. She did not report this incident to the police out of fear of retaliation,
but she testified that other Mochrenha members did report it to the police.
Following that attack, she ceased her involvement with Mochrenha for a few years.
In 2003, Charles again began participating in Mochrenha events. In October
2003, Charles attended a Mochrenha demonstration. Lavalas members broke up
the demonstration, beat demonstration attendees, and fired bullets into the air.
That night, Lavalas supporters came to Charles’ house, tied up her husband and
beat him, beat her, and touched her and one of her daughters in a sexual manner.
Again, Charles did not report this incident to the police out of fear and because of
her bad physical condition. The morning after the attack at their house, Charles
and her family left Port-au-Prince where they had been living and traveled to
Leogane, another area in Haiti where she had family. A month later she left Haiti
and came to the United States. She and two of her daughters have been staying
with friends here, and her husband and other daughter remain in Haiti.
Charles testified that her husband still feels quite scared. One day after
Charles had left for America, her husband arrived at the school where he is the
principal to find a group of people near the school who called out that he was “the
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husband of the lady that belong[ed] to Mochrenha.” He ran and hid in a nearby
building until 9:00pm that evening. Charles alluded to the fact that her daughter
and husband remain afraid and are living in hiding in Haiti, but her testimony is
somewhat unclear on this point.
In addition to her testimony, Charles submitted a Mochrenha membership
card, and a letter from a Mochrenha member verifying that Charles was a member
of that organization. The State Department Country Report for Haiti was also
submitted. The report noted that Aristide had been removed from office in
February 2004 and replaced by a new government, but that violence—including
political violence—continued in Haiti.
After the hearing, the IJ requested evidence corroborating Charles’
testimony. The IJ stated that he was giving Charles’ attorney “an opportunity to
basically submit some additional materials to help illustrate matters relating to
[Charles’] claim.” Specifically, the IJ requested documentation showing that
persons with elevated positions within the Mochrenha—such as Charles testified
she held—would have the increased risk that Charles believed them to have, and
documents indicating whether her husband and daughter in Haiti continue to
experience persecution even though Charles is no longer there. The IJ gave
Mochrenha one month to produce supporting documentation, but Charles failed to
submit the requested documents or any other corroborating evidence.
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The IJ denied Charles’ petition for asylum. The IJ found that Charles had
failed to satisfy her burden of proof by failing to submit the supporting documents
that he requested. The IJ found it particularly damaging to her claim that her
husband remained in Haiti, even though he holds a U.S. tourist visa, and that he
had returned to Haiti after visiting Charles in the U.S. The IJ also noted that the
membership card and letter submitted by Charles indicated she joined Mochrenha
in 2002 even though she testified that she had joined in 2000. The IJ
acknowledged Charles’ explanation that the membership card was actually a
renewal card and that the letter was mistaken, but continued to be bothered by the
discrepancy. The IJ denied Charles’ petition for asylum, withholding of removal,
and CAT relief, stating “there’s a litany of materials that are either inconsistent, or
lack foundation, lack evidentiary support, or otherwise point to the elements of
credibility that must be established as far as cases such as this are concerned.” The
IJ, however, made no explicit adverse credibility determination.
The BIA affirmed the IJ’s ruling, but issued its own written opinion rather
than adopting the IJ’s opinion. The BIA noted that the IJ seemed to question
Charles’s credibility, but failed to make an explicit adverse credibility finding. The
BIA stated that it would therefore “assume that any credibility determinations were
not dispositive.” The BIA agreed with the IJ that Charles failed to meet her burden
of proof for asylum due to inadequacies in her testimony and insufficient
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corroborating evidence. The BIA faulted Charles for failing to provide any
documentation corroborating fundamental aspects of her claim of past persecution,
despite the IJ giving her one month to do so. The BIA also stated that the material
facts underlying the 2000 and 2003 incidents could easily have been verified or a
corroborating statement obtained, as Charles had been in contact with people in
Haiti, and her husband even came to visit her in the United States. Furthermore,
the letter from the Mochrenha member did not state that membership in Mochrenha
put Charles at risk in Haiti or verify that she had been attacked leaving a meeting.
The BIA also noted that Charles avoided further confrontation with Lavalas
by relocating to another part of the country after the 2003 incident, and that she
could presumably do so again. In addition, the State Department report indicated
that conditions in Haiti had materially changed since Charles’s departure in 2003,
as Lavalas was no longer in power. Finally, the BIA reiterated that Charles’s
family remained in Haiti without harm. The BIA concluded that Charles failed to
meet her burden of proof for asylum, and thus, also failed to meet the higher
standard for withholding of removal. The BIA also denied relief under CAT as
Charles had not presented evidence establishing that it is more likely than not that
she will be tortured upon returning to Haiti.
II. STANDARD OF REVIEW
Here, the BIA issued a written opinion and did not expressly adopt the IJ’s
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opinion, and we, therefore, review only the BIA’s decision. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). This court reviews de novo the BIA’s legal
determinations. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001).
Factual determinations are reviewed under the highly deferential substantial
evidence test which requires this court to “view the record in the light most
favorable to the [BIA’s] decision and draw all reasonable inferences in favor of
that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en
banc). This court “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar, 257 F.3d at 1284 (quotation omitted). Findings of fact will be reversed
“only when the record compels a reversal; the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Adefemi, 386 F.3d at1027.
III. DISCUSSION
To establish asylum eligibility, the petitioner must, with specific and
credible evidence, establish (1) past persecution on account of a statutorily listed
factor, or (2) a “well-founded fear” that the statutorily listed factor will cause
future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. An
applicant for asylum who has established past persecution on a protected ground is
presumed to have a well-founded fear of future persecution on the basis of the
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original claim. 8 C.F.R. § 208.13(b)(1). “If [s]he cannot show past persecution,
then the petitioner must demonstrate a well-founded fear of future persecution that
is both subjectively genuine and objectively reasonable.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1257 (11th Cir. 2006).
Credibility
In order for there to be an adverse credibility finding, the IJ must make an
explicit and “clean determination” of credibility. Yang v. U.S. Att’y Gen., 418
F.3d 1198, 1201 (11th Cir. 2005). Here, as in Yang, the IJ’s references to
inadequacies in Charles’ testimony and proof, were insufficient to constitute an
explicit adverse credibility determination, and we, therefore, take Charles’
testimony as true. Id. The BIA stated that in the absence of an adverse
credibility determination by the IJ that it would “assume that any credibility
determinations were not dispositive.” This language has been used by this court.
See Id. This statement applies where issues of credibility are not dispositive in the
BIA’s decision such as where the applicant is ineligible for asylum even if his
testimony is true. But where credibility is one of the factors at issue in the
petitioner’s asylum application, and the IJ fails to make an explicit credibility
finding, the BIA must take the petitioner’s testimony as credible and true. Mejia v.
U.S. Att’y Gen., 498 F.3d 1253, 1254 n.2 (11th Cir. 2007).
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Failure to Support Her Claim of Past Persecution
As the asylum applicant, Charles carries the burden of proving statutory
“refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257 F.3d at 1284. “The
testimony of the applicant, if credible, may be sufficient to sustain the burden of
proof without corroboration.” 8 C.F.R. § 208.13(a); De Santamaria v. U.S. Att’y
Gen., 512 F.3d 1308, 1315 (11th Cir. 2008). The question here is whether credible
testimony requires corroboration.1 The IJ and the BIA determined that Charles’
testimony required corroborative evidence, and because Charles failed to produce
any such evidence even after being given one month to do so, the BIA found that
she had failed to carry her burden of proof in establishing past persecution.
We note that in the current REAL ID Act, Congress has stated that evidence
must be presented if requested. 8 U.S.C. § 1158(b)(1)(B)(iii) (“Where the trier of
fact determines that the applicant should provide evidence that corroborates
otherwise credible testimony, such evidence must be provided unless the applicant
does not have the evidence and cannot reasonably obtain the evidence.”). This
section of the REAL ID Act does not apply to Charles’ petition, however, because
1
The government argues that we are precluded from reversing the BIA regarding its
decision that corroborative evidence was readily available, citing the REAL ID Act § 101(e).
This statute states that “[n]o court shall reverse a determination made by a trier of fact with
respect to the availability of corroborating evidence . . . unless the court finds . . . that a
reasonable trier of fact is compelled to conclude that such corroborating evidence is
unavailable.” This appeal, however, does not raise the question of whether evidence was
availabile, but rather whether the petitioner’s credible testimony by itself establishes past
persecution. See Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1217 (11th Cir. 2007).
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it applies only to asylum applications made on or after May 11, 2005 and Charles
filed her application on April 21, 2004. We must, therefore, apply the law as it
stood prior to this statutory amendment.
A petitioner with credible, consistent, and detailed testimony may not be
denied asylum solely based on their failure to produce corroborative evidence.
Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1216-17 (11th Cir. 2007). On the
other hand, testimony that is vague, contains only generalities, or is inconsistent
does require corroborative evidence under the law of this Circuit. The “weaker the
applicant’s testimony . . . the greater the need for corroborative evidence.” Yang,
418 F.3d at 1201. Weak testimony is testimony that is not “believable, consistent,
and sufficiently detailed . . . so as to provide a plausible and coherent account of
the basis for [the petitioner’s] alleged fear.” Matter of Y-B-, 21 I. & N. Dec. 1136,
1137 (BIA 1998). In these situations the corroborating evidence is seen as a
“remedy” to the insufficient testimony. Id. at 1139. The BIA has routinely
requested corroborative evidence and denied asylum to petitioners with weak
testimony who failed to produce readily available evidence when requested to do
so. See e.g., Matter of Dass, 20 I. & N. Dec. 120, 124 (BIA 1989); In re M-D-, 21
I. & N. Dec. 1180, 1182 (BIA 1998) (“[W]e have explained that the introduction of
[corroborating] evidence is not ‘purely an option’ with the asylum applicant;
rather, corroborating evidence should be presented where available.”).
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If no corroborating evidence is available owing to the alien’s circumstances
or the conditions in their native country, this requirement is usually waived so long
as the petitioner provides a reasonable explanation as to why the evidence is
prohibitively difficult to obtain. See Matter of S-M-J-, 21 I.& N. Dec. at 1182-83
(holding that “where it is reasonable to expect corroborating evidence for certain
alleged facts pertaining to the specifics of an applicant’s claim, such evidence
should be provided . . . If the applicant does not provide such information, an
explanation should be given as to why such information was not presented”).
Although in this case, the testimony was not vague or non-specific, the BIA
noted other“inadequacies in her testimony,” including the fact that the two items of
evidence of her membership in Mochrenha stated that she joined the group in 2002
despite her testimony that she had been a member since 2000. Also, Charles
testified that her position in Mochrenha made her an ongoing target for political
attacks, and yet the State Department Country Report for Haiti did not mention
Mochrenha at all. The BIA was also suspicious of her story given her family’s
continued presence in Haiti, and her husband’s willingness to return to Haiti after
visiting her in the United States. The IJ determined that corroborative evidence
was necessary to verify the attacks, to learn about her family’s current safety status
in Haiti, and to confirm that involvement in Mochrenha put her at risk. The IJ
granted Charles one additional month to procure this evidence, but Charles
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provided no such evidence and no explanation that the evidence was unavailable.
Because Charles was given extra time to submit corroborating evidence and
because she failed to explain why she did not do so, we uphold the BIA’s
determination that she failed to carry her burden of proof that she experienced past
persecution.
Having failed to establish past persecution, Charles is not entitled to a
rebuttable presumption of a well-founded fear of future persecution and must prove
her well-founded fear in order to establish eligibility for asylum. Ruiz, 440 F.3d
at1257. Charles has not argued in her briefs to this court that she holds a well-
founded fear of future persecution and so has abandoned that argument. Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). Even if she had
presented such an argument, the record does not establish Charles’ well-founded
fear of future persecution if she returns to Haiti. First, the fact that Charles’
husband and daughter continue to reside in Haiti undermines her claim that she has
an objectively well-founded fear of future persecution should she return to Haiti.
Ruiz, 440 F.3d at 1259. Moreover, the BIA found that Charles could relocate to
another area of Haiti to avoid future persecution as she did temporarily after the
2003 attack, and the record does not compel us to conclude otherwise. 8 C.F.R.
§ 208.13(b)(3) (providing that in order to establish a well-founded fear of future
persecution, the petitioner must show that she could not avoid persecution by
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relocating to another part of his country where it is reasonable to expect her to do
so). Finally, the Country Report demonstrates that conditions in Haiti have
changed, and the Aristide-supporting Lavalas group is no longer in power.
Although the Country Report indicates that political violence continues in Haiti,
nothing in the record compels us to reverse the BIA’s finding that the conditions
have changed sufficiently to counteract her claim of fear of future persecution.
Thus, substantial evidence supports the BIA’s conclusion that Charles did not
establish an objectively reasonable possibility that she would suffer persecution if
she returns to Haiti.
Charles’ claim for asylum is denied because she failed to establish past
persecution or a well-founded fear of future persecution. Charles has also,
therefore, failed to establish satisfy the more stringent standard for withholding of
removal. See Adefemi, 386 F.3d at 1027.
Convention Against Torture
Charles contends that the BIA erred by inadequately addressing her claim
for relief under CAT. The BIA found that Charles “also failed to establish CAT
eligibility as she has not presented evidence establishing that it is more likely than
not that she will be tortured upon returning to Haiti.” The BIA appropriately
dismisses a claim where neither evidence nor argument relating to that claim were
presented to the agency. See Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,
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1242 (11th Cir. 2004) (noting that the burden of proof for a CAT claim lies with
the alien petitioner). We, therefore, uphold the denial of CAT relief.
IV. CONCLUSION
For the foregoing reasons, Charles’ petitions for asylum, withholding of
removal, and relief under CAT are DENIED.
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