Oldnick Adrien v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 05-13996 & 05-16993 SEPTEMBER 6, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A79-091-705
OLDNICK ADRIEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 6, 2006)
Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Oldnick Adrien, a native and citizen of Haiti,
petitions this Court for review of the Board of Immigration Appeals’ (“BIA’s”)
affirmation of (1) the immigration judge’s (“IJ’s”) denial of his claim for asylum,
withholding of removal under the Immigration and Nationality Act (“INA”), and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (“CAT”), and (2) the BIA’s
denial of his motion to reopen based his application for adjustment of status filed
after he married a United States citizen. In his first petition, Adrien argues that the
IJ and the BIA erred by finding his testimony not credible. In his second petition,
Adrien argues that the BIA erred in denying his motion to reopen because his
recent marriage to a United States citizen permits him to apply for adjustment of
status while in removal proceedings.
I.
In his first petition, Adrien argues that the IJ’s adverse credibility finding
was not supported by substantial evidence and his testimony as a whole
demonstrated that he was subject to persecution and threats to his life, and the
incidents were directly related to his arrest of a Lavalas senator’s cousin.
We review the decision of the BIA, except to the extent that it adopts the
IJ’s. Nreka v. U.S. Att’y. Gen.,408 F.3d 1361, 1368 (11th Cir. 2005) (citation
omitted). Because the BIA in this case adopted the IJ’s decision, and made some
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additional observations, we review both. Id. The factual determination that an
alien is not entitled to asylum is reviewed under the substantial evidence test, and
must be upheld if it is supported by “reasonable, substantial, and probative
evidence on the record considered as a whole.” Id (internal quotations and citation
omitted).
“Credibility determinations likewise are reviewed under the substantial
evidence test.” D-Muhumed v. U. S. Att’y. Gen., 388 F.3d 814, 818 (11th Cir.
2004) (citation omitted). We may not substitute our judgment for that of the IJ
with respect to credibility findings. Id. (citation omitted). “Once an adverse
credibility finding is made, the burden is on the applicant alien to show that the IJ’s
credibility decision was not supported by ‘specific, cogent reasons’ or was not
based on substantial evidence.” Forgue v. U.S. Att’y. Gen., 401 F.3d 1282, 1287
(11th Cir. 2005) (citation omitted). “A credibility determination, like any fact
finding, may not be overturned unless the record compels it.” Id. (internal
quotations and citations omitted). If the only evidence presented is the applicant’s
testimony, an adverse credibility finding alone is sufficient to support the denial of
an asylum application. Id. However, an adverse credibility finding does not
alleviate the IJ’s duty to consider other evidence produced by the applicant. Id.For a credibility finding to be dispositive of the appeal, the IJ must make “clean
determinations of credibility.” Yang v. U.S. Att’y. Gen., 418 F.3d 1198, 1201
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(11th Cir. 2005) (internal quotations and citation omitted).
Although minor inconsistencies will not support an adverse credibility
finding, inconsistencies that go “to the heart of [the] asylum claim” are sufficient to
support such a finding. See e.g., Chebchoub v. I.N.S., 257 F.3d 1038, 1043 (9th
Cir. 2001) (internal quotations and citation omitted); see also Nreka, 408 F.3d at
1369 (holding that IJ’s concerns about the credibility of the applicant on “key
elements of the claim” and the applicant’s failure to rebut these with sufficient
corroborating evidence and explanation supported finding that applicant did not
qualify for asylum) (citations omitted).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. §1158(a)(1). The Secretary of the
Department of Homeland Security (“DHS”) or the Attorney General has 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). A “refugee” is
any person who is outside any country of such person’s nationality . . . , 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) (emphasis added). The asylum
applicant carries the burden of proving statutory “refugee” status. 8 C.F.R.
§208.13(a); Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). To establish
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asylum eligibility, the alien 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 such future persecution. 8 C.F.R.
§ 208.13(b); Najjar, 257 F.3d at 1287.
An alien seeking withholding of removal under the INA must show that his
life or freedom would “more likely than not” be threatened upon return to his
country because of, among other things, his political opinion. Sanchez v. U.S.
Att’y. Gen., 392 F.3d 434, 437 (11th Cir. 2004) (internal quotations and citation
omitted); see also INA §241(b)(3), 8 U.S.C. § 1231(b)(3). An alien bears the
burden of demonstrating that “he more-likely-than-not would be persecuted or
tortured upon his return to the country in question.” Sanchez, 392 F.3d at 437(internal quotations and citation omitted). This standard is more stringent than the
“well-founded fear” standard for asylum; thus, if an applicant is unable to meet the
“well-founded fear” standard for asylum, he generally is unable to qualify for
withholding of removal. See e.g., Najjar, 257 F.3d at 1292-93.
To obtain withholding of removal 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).
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
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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.
8 C.F.R. §208.18(a)(1). To constitute torture, an act “must be specifically intended
to inflict severe physical or mental pain or suffering[.]” 8 C.F.R. §208.18(a)(5).
Generally, when an applicant fails to establish eligibility for asylum, he likewise
fails to establish eligibility for CAT relief. Nreka, 408 F.3d at 1369 (citation
omitted).
The IJ’s finding that Adrien’s testimony lacked credibility was supported by
substantial evidence. Most important, the IJ correctly noted that Adrien gave
multiple accounts of the beating that formed the basis of his asylum application,
and evidence contradicted Adrien’s claim that the beating was motivated by the
attackers’ desire to keep negative information from affecting upcoming elections.
These inconsistencies were material to Adrien’s asylum claim and he failed to give
sufficient explanations for the inconsistencies. Furthermore, Adrien failed to show
that any mistreatment was based upon his political opinion. Because Adrien has
failed to establish a claim of asylum on the merits, he also fails to establish
eligibility for withholding of removal under the INA or CAT relief.
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Adrien argues that the new medical evidence submitted to the BIA in his
motion to reopen undermines the IJ’s credibility finding, and serves to explain any
inconsistencies and shortcomings in his testimony. In denying the motion to
reopen, the BIA held:
The new diagnosis describes the respondent as having an inability to
recall certain events or episodes in his life We note that the respondent
has a university degree in Economics and was a police officer,
presumably adept at recording facts and sequences of events, for
almost four years and there is no evidence, other than his assertion,
that his memory problems existed at the time of his hearing before the
Immigration Judge in 2003 There is also nothing in the diagnosis that
indicates when he does remember events, he recalls specific but faulty
or incorrect facts. For instance, his diagnosis states that “there is no
evidence of confabulation” or a tendency to fill in gaps in one*s
memory with fabrications that one believes to be true facts (Exh. I at
4). Therefore, while his diagnosis may help explain a lack of detail or
total failure to recall events, it would not explain wholly inconsistent
and varying versions of events. For example, the respondent
previously claimed that he was attacked in November 2000, by people
who were angry because they believed he had been collecting money
from the International Republic Institution in an effort to support the
police union, but he later testified that he was attacked by a man
named “Black” and some other thugs because he had arrested the
cousin of a political leader and the political leader wanted to insure
the respondent did not attempt to embarrass the leader prior to the
upcoming political election (Exhs. 2, 6; Tr. 30-31). Moreover, the
respondent first stated that he voluntarily resigned from the Haitian
police force when it was later revealed that he was the subject of an
administrative investigation and his weapon and badge were
confiscated (Exh. 6). Even assuming his diagnosis could explain this
lack of credibility, the respondent told his doctor that he had a long-
standing memory problem, which he stated began to worsen in
approximately May 2005 (Exh. 1 at 1). If the respondent were* aware
of long-standing memory problems, he has not explained why this
information would have been unavailable or could not have been
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presented to the Immigration Judge at his individual hearing. As such,
the respondent*s motion fails to present new or previously unavailable
evidence that would warrant reopening and his motion to reopen is
denied.
BIA decision, November 18, 2005 (citation omitted). Our review of the record
does not persuade us that the record including the new evidence compels a
different determination with respect to the credibility issue.
II.
Adrien also argues that he should have been allowed to adjust his status,
despite the fact that he was an alien in removal proceedings, because the regulation
preventing him from doing so, 8 C.F.R. §1245.1(c)(8), contradicts the
Congressional intent to allow him to do so, as manifested in INA §245(a), 8 U.S.C.
§1255(a).
“This Court reviews the BIA’s denial of [a petitioner’s] motion to reopen his
deportation order for abuse of discretion. In this particular area, the BIA’s
discretion is quite broad.” Gbaya v. U.S. Att’y. Gen., 342 F.3d 1219, 1220 (11th
Cir. 2003). Pursuant to regulation, “[t]he decision to grant or deny a motion to
reopen or reconsider is within the discretion of the Board, [and] . . . [t]he Board has
discretion to deny a motion to reopen even if the party moving has made out a
prima facie case for relief.” 8 C.F.R. §1003.2(a). We have held:
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At a minimum, there 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.
Najjar, 257 F.3d at 1302 (citations omitted).
In considering the part of Adrien’s motion based upon his application for
adjustment of status, the BIA denied the motion on two grounds: (1) he was
statutorily barred from adjusting his inadmissible status under INA
§212(a)(6)(C)(ii), 8 U.S.C. §1182(a)(6)(C)(ii) because he had falsely represented
that he was a United States citizen; and (2) he was unable to establish prima facie
eligibility for adjustment of status because, as an alien in removal proceedings, 8
C.F.R. §1245.1(c)(8) barred him from applying for adjustment of status.
In his brief on appeal, Adrien challenges only the second of the two grounds
relied upon by the BIA in denying the motion to reopen. Because Adrien has
failed to challenge the first ground – a separate and independent ground relied
upon by the BIA – he has abandoned any such challenge to that ground.
Accordingly, the BIA’s denial of Adrien’s motion to reopen is due to be affirmed
on that unchallenged ground.1
1
For this reason, and also because our decision can and does not rest entirely on
the other separate and independent ground – which itself is valid – we need not, and do not,
address the effect on Adrien’s eligibility for adjustment of status because of the fact that he was
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Alternatively, we readily conclude that the unchallenged ground upon which
the BIA relied was indeed a valid reason for the BIA to deny Adrien’s motion to
reopen. Adrien was statutorily barred from adjustment of status because he falsely
represented himself as a United States citizen. INA §212(a)(6)(C)(ii), 8 U.S.C.
§1182(a)(6)(C)(ii) provides:
(I) In general
Any alien who falsely represents, or has falsely represented,
himself or herself to be a citizen of the United States for any
purpose or benefit under this chapter . . . or any other Federal or
State law is inadmissible.
(II) Exception
In the case of an alien making a representation described in
subclause (I), if each natural parent of the alien (or, in the case
of an adopted alien, each adoptive parent of the alien) is or was
a citizen (whether by birth or naturalization), the alien
permanently resided in the United States prior to attaining the
age of 16, and the alien reasonably believed at the time of
making such representation that he or she was a citizen, the
alien shall not be considered to be inadmissible under any
provision of this subsection based on such representation.
INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii).
Here, the BIA did not abuse its discretion when it found that Adrien was
statutorily barred from adjustment of status because no waiver to his
an alien in removal proceedings. But see Scheerer v. Attorney General, 445 F.3d 311 (11th Cir.
2006).
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inadmissibility existed. Adrien admitted removeability pursuant to INA
§212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii) for falsely representing himself as a
United States citizen. Unlike aliens deemed inadmissible under subsections (a)(4),
(5), (6)(C)(i), and (7)(A), no waiver exists for aliens deemed inadmissible under
INA §212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii). See INA §§209(c) and
212(a)(6)(C)(iii) and (i), 8 U.S.C. §§1159(c) and 1182(a)(6)(C)(iii) and (i).
Accordingly, in order to be excepted from inadmissibility, he would have had to
prove that: (1) each of his parents was a United States citizen; (2) he permanently
resided in the United States prior to attaining the age of 16; and (3) he reasonably
believed at the time of making his false representation that he was a United States
citizen. See INA §212(a)(6)(C)(ii)(II), 8 U.S.C. §1182(a)(6)(C)(ii)(II). This
exception under subsection (a)(6)(C)(ii)(II) was not applicable to Adrien, and he
was statutorily barred from adjusting his status.
PETITIONS DENIED.2
2
Adrien’s request for oral argument is denied.
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