Roscoe George Campbell 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[DO NOT PUBLISH]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
SEPTEMBER 20, 2007
Nos. 06-12390 THOMAS K. KAHN
06-13724 CLERK
07-10632
Non-Argument Calendar
________________________
BIA Nos. A79-479-795 & A79-479-796
ROSCOE GEORGE CAMPBELL,
HELEN GARNELL CAMPBELL,
DENARIS TENEKO KELLY,
KEDEISHA GEORGETT CAMPBELL,
KAYNEISHA OSHLA CAMPBELL,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 20, 2007)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Roscoe Campbell,1 a native and citizen of the Bahamas, through counsel, has
filed for review of the Board of Immigration Appeals’ (“BIA’s”) denial of his
application for withholding of removal, 8 U.S.C. § 1158 and 1231(b)(3), and
protection under the Convention Against Torture (“CAT”), 8 C.F.R.
§ 1208.16(c)(2), and his motions for reconsideration and to reopen the BIA’s
denial of the same claims.2 On appeal, Campbell first challenges the IJ’s adverse
credibility finding.3 Second, Campbell argues that the BIA erred in affirming the
IJ’s decision because the IJ’s findings were skewed by prejudgment, personal
speculation, bias, and conjecture which rose to the level of violating his rights to
due process and to present evidence. Third, Campbell argues that the BIA abused
1
Campbell indicated that his spouse and three children were included in his asylum
application. We recently held, however, that the withholding of removal statute does not create
derivative rights for the spouse of a petitioner. See Delgado v. United States Att’y Gen., 487
F.3d 855, 862 (11th Cir. 2007).
2
In July 2007, we granted Campbell’s motion to consolidate all three of his petitions for
review.
3
The parties agree that we lack jurisdiction to review the denial of Campbell’s untimely
asylum application. See Dakane v. United States Att’y Gen., 371 F.3d 771, 773 n.3 (11th Cir.
2004) (the statutory limit for filing a petition for review in an immigration proceeding is
“mandatory and jurisdictional,” and it is not subject to equitable tolling); see also Stone v. I.N.S.,
514 U.S. 386, 395, 405, 115 S. Ct. 1537, 1545, 1549 (1995) (holding that the filing deadline for
review is not suspended or tolled by a motion to reopen). In addition, because Campbell does
not challenge the BIA’s denial of his motion for reconsideration of his asylum application, we
deem any claims in that regard abandoned. See Sepulveda v. United States Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that
issue is abandoned.”).
2
its discretion by failing to reopen his removal proceedings in light of the previously
unavailable evidence. Last, Campbell argues that the BIA abused its discretion and
violated his right to due process by failing to address an argument in his motion to
reopen, specifically, that the publication of his asylum claim in the media placed
him at greater risk of harm from the Royal Bahamas Defense Force (“Defense
Force”), and, therefore, his removal proceedings should be reopened.
I.
Where the BIA issues a decision, we review only that decision, except to the
extent that it expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Id. Although, here, the BIA did not
expressly adopt the IJ’s opinion, because the BIA referred to the IJ’s reasoning and
found it, at least in part, to be supported by substantial evidence, we review the
BIA and IJ’s decisions.
We review factual determinations, including credibility determinations,
using the substantial evidence test. Forgue v. United States Att’y Gen., 401 F.3d
1282, 1286 (11th Cir. 2005). We will affirm if the decision “is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. (quoting Al Najjar, 257 F.3d at 1284). “[W]e review the record
evidence in the light most favorable to the agency’s decision and draw all
3
reasonable inferences in favor of that decision. Id. (quoting Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)). To conclude that the IJ’s or
BIA’s decision should be reversed, we “must find that the record not only supports
that conclusion, but compels it.” Fahim v. United States Att’y Gen., 278 F.3d
1216, 1218 (11th Cir. 2002) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 480
n.1, 112 S. Ct. 812 (1992)). “[T]he mere fact that the record may support a
contrary conclusion is not enough to justify a reversal of the administrative
findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
“In considering a petitioner’s claim for withholding of removal, the IJ must
determine credibility in the same manner as in asylum cases.” Niftaliev v. United
States Att’y Gen., 487 F.3d 834, 838 (11th Cir. 2007). Thus, the IJ must make an
explicit credibility determination. See Yang v. United States Att’y Gen., 418 F.3d
1198, 1201 (11th Cir. 2005). In this case, the IJ explicitly found Campbell’s
testimony not credible.
“Once an adverse credibility finding is made, the burden is on the applicant
alien to show that the IJ’s [or BIA’s] credibility decision was not supported by
‘specific, cogent reasons’ or was not based on substantial evidence.” Forgue, 401
F.3d at 1287. “The trier of fact must determine credibility, and [we] may not
substitute its judgment for that of the [IJ or ] BIA with respect to credibility
4
findings.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 818 (11th Cir.
2004).
“Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments.” Ruiz
v. United States Atty. Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). In Ruiz, we
concluded that the IJ offered “specific, cogent reasons” for his adverse credibility
finding when it had not found plausible the applicant’s testimony. Id. In addition,
inconsistencies between a petitioner’s testimony and other record evidence
supports an adverse credibility finding. Dailide v. United States Att’y Gen., 387
F.3d 1335, 1343 (11th Cir. 2004). While “an adverse credibility determination
alone may be sufficient to support the denial of an asylum application,” such
finding “does not alleviate the IJ’s duty to consider other evidence produced by an
asylum applicant.” Forgue, 401 F.3d at 1287.
The burden of proof for an applicant seeking withholding of removal is
higher than the burden imposed on an asylum applicant. Al Najjar, 257 F.3d at
1292-93. With respect to the aliens who timely seek the later, they may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General and
the Secretary of Homeland Security have discretion to grant asylum if the alien
meets the INA’s definition of a “refugee.” See INA § 208(b)(1), 8 U. S. C. §
1158(b)(1).
5
A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, 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.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory “refugee” status. See Al Najjar, 257 F.3d at 1284.
An alien is entitled to asylum if he can establish, with specific and credible
evidence: (1) past persecution on account of his membership in a particular social
group or other statutorily listed factor, or (2) a “well-founded fear” that his
membership in a particular social group or other statutorily listed factor will cause
future persecution. 8 C.F.R. § 208.13(a)-(b); Al Najjar, 257 F.3d at 1287. If a
petitioner demonstrates past persecution, he is presumed to have a well-founded
fear of future persecution unless the government can rebut this presumption by
showing a fundamental change in circumstances in the country or the ability to
avoid future persecution by relocating within the country. 8 C.F.R § 208.13(b)(1).
If 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. See Al Najjar, 257 F.3d at 1289. The subjective component can be
6
proved “by the applicant’s credible testimony that he or she genuinely fears
persecution,” while the objective component “can be fulfilled either by establishing
past persecution or that he or she has a good reason to fear future persecution.” Id.
(quotation omitted).
Although the INA does not expressly define “persecution” for purposes of
qualifying as a “refugee,” see INA § 101(a)(42), 8 U.S.C. § 1101(a)(42), we have
stated that “persecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda v. United States Att’y
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotation marks and citation
omitted); see also Silva v. United States Att’y Gen., 448 F.3d 1229, 1237 (11th Cir.
2006) (holding that the receipt of a “condolence note” alone did not amount to
persecution). In determining whether an alien has suffered past persecution, the IJ
must consider the cumulative effects of the incidents. See Ruiz, 479 F.3d at 766.
The petitioner’s well-founded fear of persecution must be on account of, or
because of, one of the statutorily listed factors. See I.N.S. v. Elias-Zacarias, 502
U.S. 478, 483, 112 S. Ct. 812, 816 (1992). To establish the necessary causal
connection, the alien must present “specific, detailed facts showing a good reason
to fear that he or she will be singled out for persecution on account of” a statutorily
listed factor. Al Najjar, 257 F.3d at 1287 (quotation omitted). Furthermore, we
have approved a “country-wide requirement” in which a refugee must first pursue
7
an “internal resettlement alternative” in their own country, or establish that this is
not possible, before seeking asylum here. Mazariegos v. United States Att’y Gen.,
241 F.3d 1320, 1326-27 (11th Cir. 2001).
In contrast to asylum, an alien will only be entitled to withholding of
removal under the INA if he can show that his life or freedom would be threatened
on account of race, religion, nationality, membership in a particular social group,
or political opinion. Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287
(11th Cir. 2003); see also INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The
alien bears the burden of demonstrating that it is “more likely than not” that he will
be persecuted or tortured upon his return to the country in question. Fahim, 278
F.3d at 1218.
If the alien establishes past persecution based on a protected ground, there is
a rebuttable presumption that his life or freedom would be threatened upon return
to his country. See Mendoza, 327 F.3d at 1287; see also 8 C.F.R.
§ 208.16(b)(1)(i). An alien who has not shown past persecution, however, may
still be entitled to withholding of removal if he can demonstrate a future threat to
his life or freedom on a protected ground. See 8 C.F.R. § 208.16(b)(2). An alien
cannot demonstrate that his life or freedom would be threatened if the IJ finds that
the alien could avoid a future threat to his life or freedom by relocating to another
8
part of the proposed country of removal and, under all the circumstances, it would
be reasonable to expect the applicant to do so. Id. § 208.16(b)(2).
The denial of withholding of removal cannot be based solely on an adverse
credibility finding, however, if the applicant offered “other evidence of
persecution.” Forgue, 401 F.3d at 1287-88 (noting that, where an applicant
produces other evidence of persecution, the IJ must consider that evidence, and it is
not sufficient for the IJ to rely solely on the adverse credibility determination).
Nonetheless, the IJ or BIA is not required to discuss every piece of evidence
submitted by the petitioner. See Tan v. United States Att’y Gen., 446 F.3d 1369,
1376 (11th Cir. 2006).
To obtain relief under the CAT, the burden is on the applicant to establish
that it is “more likely than not” he will be tortured in the country of removal. 8
C.F.R. § 208.16(c)(2); Sanchez v. United States Att’y Gen., 392 F.3d 434, 438
(11th Cir. 2004). Torture is defined as:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
9
Id. § 208.18(a)(1). Because the burden regarding withholding of removal and CAT
relief is higher than the asylum standard, a petitioner who fails to establish
eligibility for asylum is usually unable to carry the burden regarding withholding
of removal and CAT relief. See Forgue, 401 F.3d at 1288 n.4; Al Najjar, 257 F.3d
at 1292-93.
In this case, contrary to Campbell’s assertion, the record demonstrates that
the BIA, like the IJ, clearly made specific findings of fact regarding the adverse
credibility determination. The BIA found that the IJ provided “specific, cogent
reasons for finding [Campbell] was not credible.” In reaching its decision, the BIA
relied on the material inconsistencies between Campbell’s testimony and the
testimony of Drug Enforcement Administration Agent Wright. Accordingly, we
conclude that substantial evidence supports the BIA’s adverse credibility
determination.
Despite Campbell’s claim that a February 2000 memorandum by Agent
Mitchell corroborated his assertion that he continued to provide drug trafficking
intelligence to the agents following their initial meeting, the BIA found that
Campbell’s counsel “repeatedly has selectively taken Agent Mitchell’s letter out of
context.” The BIA’s finding is supported by Agent Mitchell’s memorandum,
wherein he wrote that, following their initial meeting, Campbell called him on
10
several occasions to inquire about the status of his paperwork and when he would
get paid.
Additionally, the record shows that the IJ’s adverse credibility finding
regarding Campbell’s poor recollection of the details of his case was also
supported by substantial evidence. Among other things, the record shows that,
Campbell had difficulty remembering the details of the events relating to his claim
for relief, and he gave inconsistent statements about the facts. Campbell could not
remember the number of times he called the DEA agents to offer intelligence, and
when he did give an answer, it conflicted with his prior testimony. Campbell gave
conflicting testimony about the names and number of Defense Force officers who
were arrested as a result of the information he supplied to the DEA. At his
removal hearing, Campbell testified that he did not want money in exchange for
the intelligence he offered to the DEA, but he later testified that he retained an
attorney to collect money for the information he allegedly provided the DEA. In
addition, the IJ found implausible Campbell’s testimony that he waited six years
after he left the Defense Force to provide intelligence to the DEA because “he
could not take it” any longer.
The IJ also considered the other evidence in making its adverse credibility
determination. See Tan, 446 F.3d at 1376. The supplemental materials did not
contain any evidence that would compel a reasonable fact finder to find that the
11
IJ’s and BIA’s denial of Campbell’s withholding of removal was not supported by
substantial evidence. See Chen v. United States Att’y Gen., 463 F.3d 1228, 1231
(11th Cir. 2006) (quotation omitted). Specifically, the evidence discussed above
does not demonstrate that Campbell suffered past persecution or more likely than
not will be persecuted or tortured upon his return to the Bahamas based on his
membership in a particular social or political group. See Fahim, 278 F.3d at 1216.
Likewise, because Campbell could not establish that it is “more likely than not” he
will be tortured in the Bahamas, his CAT claim would also fail. See Sanchez, 392
F.3d at 438. Based on the foregoing reasons, we deny Campbell’s petition for
review of his claims for withholding of removal and CAT relief. See Forgue, 401
F.3d at 1287-88.
II.
We review de novo a due process violation claim in removal proceedings
and administrative appeals. Lonyem v. United States Att’y Gen., 352 F.3d 1338,
1341-1342 (11th Cir. 2003).
Due process is satisfied only by a full and fair hearing. Ibrahim v. I.N.S.,
821 F.2d 1547, 1550 (11th Cir. 1987). “To prevail . . . on a due process challenge
to a [removal] proceeding, an alien must show substantial prejudice.” Id. An alien
can demonstrate substantial prejudice by showing that the outcome would have
been different had the due process violation not occurred. Id. “[A] party to an
12
immigration case . . . is entitled to a full and fair hearing-not an idyllic one.”
Aguilar-Solis v. I.N.S., 168 F.3d 565, 569 (1st Cir.1999) (persuasive authority).
We conclude from the record that the IJ did not deny Campbell due process
nor deny him the right to present evidence. While it is true that the IJ interrupted
Campbell’s testimony throughout the hearing, a review of the record indicates that
the purpose of most of the interruptions was to gain more clarification with regard
to his testimony. The IJ’s inappropriate conduct was not limited to Campbell, but
was directed toward the government’s attorney, too, and, therefore, it does not
necessarily show bias against him as much as improper conduct generally.
Furthermore, the vast majority of the IJ’s interruptions and questions were
probative as to the issues raised by Campbell. Moreover, Campbell neither
objected to the IJ’s questions or conduct during the hearing, nor points to any
instances in the record where he was substantially prevented from testifying as to
his story. Additionally, the IJ went as far as to grant Campbell a two-month
continuance so that he could bolster his claim.
While it is true that the IJ appeared impatient and annoyed by some of
Campbell’s responses and made some unnecessary and unprofessional comments
at the hearing and in his oral decision, Campbell has not shown that the outcome
would have been different in the absence of those comments and interruptions. Cf.
Ibrahim, 821 F.2d at 1550 (failing to show prejudice by the ruling made in the
13
alien’s absence). In fact, the BIA found that the record supported the IJ’s adverse
credibility ruling. Furthermore, even in the absence of an adverse credibility
ruling, Campbell did not show that he was subjected to past persecution, a
well-founded fear of future persecution, or that he was entitled to CAT relief.
Moreover, the BIA admonished the IJ for his sarcasm, which it found was
inappropriate. Therefore, Campbell has not demonstrated substantial prejudice,
and we deny his petition in this respect.
III.
We normally review the BIA’s denial of a motion to reopen for an abuse of
discretion. Al Najjar, 257 F.3d at 1302. We will uphold a determination of the
BIA if it is “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Elias-Zacarias, 502 U.S. at 481, 112 S. Ct. at 815(1992) (quoting 8 U.S.C. § 1105a(a)(4)). “Judicial review of denials of
discretionary relief incident to deportation proceedings, including motions to
reopen, is limited to determining ‘whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.’” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quoting
Jarecha v. I.N.S., 417 F.2d 220, 224 (5th Cir. 1969)). The BIA abuses its
discretion when its decision “provides no rational explanation, inexplicably departs
from established policies, is devoid of any reasoning, or contains only summary or
14
conclusory statements.” Mickeviciute v. I.N.S., 327 F.3d 1159, 1162 (10th Cir.
2003) (quotation omitted) (persuasive authority).
“[T]here are at least three independent grounds upon which the Board may
deny a motion to reopen: 1) failure to establish a prima facie case; 2) failure to
introduce evidence that was material and previously unavailable; and 3) a
determination that despite the alien’s statutory eligibility for relief, he or she is not
entitled to a favorable exercise of discretion.” Al Najjar, 257 F.3d at 1302. Under
8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen proceedings shall not be granted
unless it appears to the Board that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the former
hearing.” In discussing the judicial review of a motion to reopen, we noted that:
[t]he provision is framed negatively, by directing the Board not to
reopen unless certain showings are made. It does not affirmatively
require the Board to reopen the proceedings under any particular
condition. Thus, the regulations may be construed to provide the
Board with discretion in determining under what circumstances
proceedings should be reopened.
Al Najjar, 257 F.3d at 1301 (alterations, citations, and internal quotations omitted).
In Brunner v. United States, 70 Fed. Cl. 623, 625 (Fed. Cl. 2006), a civil
case before a trial court on a motion for summary judgment, the plaintiff sued the
DEA for breach of an oral contract to compensate him for assistance he rendered
against drug traffickers. In that case, it was undisputed that the plaintiff entered
15
into an official cooperating agreement with the DEA to act as a confidential source.
Id. Ultimately, the court held that no contract existed between the DEA and the
plaintiff concerning a promise to pay awards for information which led to either
indictments or seizure and forfeiture of property due to lack of contracting
authority and lack of ratification, but that the DEA agents did possess the implied
authority to bind the DEA in a contract paying a salary and expenses to plaintiff.
Id. at 649.
In this case, Campbell argues that the BIA abused its discretion by failing to
reopen his removal proceedings in light of the previously unavailable evidence,
namely a post-removal hearing psychological evaluation indicating that he suffers
from Post Traumatic Stress Disorder and major depressive disorder. We conclude
that the BIA’s finding that this evidence was neither new nor unavailable was
limited to the exercise of administrative discretion and was not arbitrary or
capricious, and, therefore, the BIA did not abuse its discretion. See Garcia-Mir,
766 F.2d at 1490. Moreover, the BIA’s findings in this regard were supported by
rational explanation and reasoning. First, the BIA found, and the evaluation report
confirms, that Campbell’s psychological evaluation was based on the same
symptamotology he experienced after arriving in the United States in 1999.
Second, the BIA observed that Campbell did not offer any explanation as to why
16
he or his attorney failed to previously seek such an evaluation if either believed it
to be relevant to his application for relief.
In addition, contrary to Campbell’s assertion that the BIA “ignored his
explanation that a psychological evaluation only became relevant and necessary
after the [IJ’s] continual interruption and mocking of [him]” the record shows
otherwise. Specifically, the record shows that Campbell was aware of his failure to
provide a cogent recitation of the facts long before he moved to reopen based on
the psychological evaluation, and that he repeatedly related that failure to the IJ’s
conduct during the removal proceedings. For instance, Campbell made such
arguments in his briefs to the BIA on direct appeal and in support of his motion for
reconsideration.
Furthermore, Campbell’s reliance on Brunner is misplaced. The case does
not establish that Campbell was prima facie eligible for any of the relief he sought.
Accordingly, we deny Campbell’s petition in this respect.
IV.
In his motion to reopen, Campbell argued that he qualified as a refugee sur
place because he met the statutory requirements for asylum and withholding of
removal when his persecutor became aware of, and was angered by, international
media coverage surrounding his claims. In support of this claim, Campbell
submitted an article published in the Miami New Times. The BIA found the article
17
to be duplicative of previously submitted evidence offered in support of his
application. The BIA did not abuse its discretion in so finding. Moreover, on
appeal, Campbell concedes that the article chronicled the facts of his experiences in
the Bahamas and throughout the asylum application process, and, therefore, the
article does not qualify as material evidence that was not available and could not
have been discovered or presented at the former hearing.
Furthermore, Campbell’s reliance on Lusingo v. Gonzales, 420 F.3d 193 (3d
Cir. 2005), and Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), for the
proposition that the BIA abused its discretion in denying his motion to reopen his
removal based on the increased threat of danger that arose from media coverage of
his asylum claim is without merit. These cases are inapposite to the facts and
circumstances here. Lusingo involved a petition for review of the BIA’s denial of
a direct appeal from the IJ’s decision, and evidence showed that the petitioner’s
case was widely publicized in his home country where it was likely that the
government would persecute him if he were returned. Lusingo, 420 F.3d at 194,
201-02. Similarly, Mogharrabi involved a petition for review of the BIA’s denial
of a direct appeal of the IJ’s decision, and evidence showed that the petitioner was
involved in an altercation at an embassy with an employee of his home country’s
government, that he participated in government demonstrations, and that opponents
of the Ayatollah Khomeini are often persecuted for their opposition. Mogharrabi,
18
19 I. & N. Dec. 439. Thus, unlike in Campbell’s case where there was no evidence
that the Bahamian government was aware of the media coverage he received in the
United States, and that if he returned he would be persecuted as a result thereof, in
the cases cited to us by Campbell, there was undisputed ample evidence that the
petitioner’s home country government was aware of the media coverage in the
United States and that a reasonable person in his position would fear persecution if
returned. Accordingly, we conclude that the BIA did not abuse its discretion nor
did it violate his right to due process in this respect.
V.
For the above-stated reasons, we deny Campbell’s petition for review.
PETITION DENIED.
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