Emmanuel Emarcel Kubandi v. U.S. Attorney Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11329 SEPT 26, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency Nos. A79-537-061
A79-537-062
EMMANUEL EMARCEL KUBANDI,
MARCELINE PANDI KUBANDI,
GLORIA GRACIA KUBANDI,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 26, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
The lead petitioner, Emmanuel Emarcel Kubandi, and his wife, Marceline
Pandi Kunandi, and their minor daughter, all natives and citizens of the Democratic
Republic of the Congo (“the Congo”), petition us for review of the final order of
the Board of Immigration Appeals dismissing their appeal from the Immigration
Judge’s (“IJ’s”) denial of their applications for asylum under the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3), as amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.
L. No. 104-208, 110 Stat. 3009 (1996) (amended by the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 302 (2005)).1 In support of their asylum
applications, Petitioners asserted that they were persecuted in the Congo because of
Kubandi’s leadership role in a political group called Christian Mission of
Intercession for Change (“CMIC”). On appeal, the petitioners argue that
substantial evidence does not support the BIA’s adverse credibility finding as to
Kubandi’s testimony and that the IJ did not adequately consider the other evidence
1
Because we find that Petitioners have not established a case for asylum under the INA,
we do not consider whether they satisfied the higher standard for withholding of removal under the
INA or relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir.
2001).
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of persecution presented at the hearing.2 After thorough review of the record and
careful consideration of the parties’ briefs, we deny the petition for review.
In the case at bar, the BIA issued a decision in which it adopted the IJ’s
reasoning regarding Kubandi’s credibility without making additional findings.
“We therefore review the IJ’s decision as if it were the BIA’s.” Wei Chen v. U.S.
Att’y Gen., --- F.3d ----, 2006 WL 2570870 at *2 (11th Cir. Sept. 8, 2006) (citing
Al Najjar, 257 F.3d at 1284). The IJ’s factual determinations are reviewed under
the substantial evidence test. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286
(11th Cir. 2005). Under this highly deferential test, we “affirm the [IJ’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 (internal quotation marks
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). “A credibility determination, like any fact finding, may not be overturned
unless the record compels it.” Forgue, 401 F.3d at 1287 (internal quotation marks
omitted).
2
To the extent that the Petitioners challenge the manner in which the IJ conducted the asylum
hearing, Petitioners did not raise this issue before the BIA and, accordingly, we lack jurisdiction to
review the issue, as it is unexhausted. See 8 U.S.C. § 1252(d)(1); Fernandez-Bernal v. U.S. Att’y
Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).
3
At the evidentiary hearing on Kubandi’s application, the IJ heard the
testimony of Kubandi and his wife, and Kubandi submitted the following evidence,
which the IJ noted in his order: “the Notice to Appear [#1]; Notice of privilege of
counsel and consequences of knowingly filing a frivolous application for asylum
[#2]; the respondent’s I-589 form [#3]; respondent’s filing of supplemental
documents, un-tabbed and unnumbered [#4]; Map of Democratic Republic of The
Congo [#5]; Map of Africa [#6]; and Medical Board of California information
[#7].” After the hearing, the IJ made the following factual findings and
conclusions of law:
The Court observed the testimony and demeanor of the
respondent and finds that he has not provided credible and consistent
testimony. His responses to questions were not logically forthcoming,
straightforward, nor were they plausible, logically, or well connected.
Therefore, the court finds him to not be a credible witness. The
witness has failed to supply adequate evidence of the basis of his
claims of torture and has provided photographs which appear to be
altered. Additionally, the respondent has not supplied any
information on the group . . . which he claims to have founded that
marched against the government of The Congo, and supplies instead
photographs which appear to be altered and other material which does
not appeal to be original. Foremost the respondent never testified that
he was stabbed while in custody of the military, a fact that the Court
cannot overlook, and which is most important to the respondent’s
testimony.
....
In the instant case, the respondent says he fears persecution or
torture from the government of [the Congo]. However, I am not
satisfied from the record that the respondent has met his burden of
proof in establishing his claim for a grant of asylum is warranted. The
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respondent’s fear in this case stems from his arrest in his country.
However, he does not mention in his testimony today that he was
stabbed with a military knife and completely omitted that testimony
from his hearing today. This is not a matter that he would seemingly
forget if in fact it did indeed happen. Further, the respondent has
supplied copies of photographs and says that the originals are not
available, however, upon close examination of these photographs
recording his march against the government it appears that they have
been altered by inserting various slogans and banners to bolster his
testimony regarding his pretext. The respondent further states that he
has no documents to support his testimony of the group he founded,
has no original phonographs as he states his friend took the pictures
and sent it on a disc . . . . The court simply does not believe this to be
an original untouched photograph as the banners displayed in each
photograph appeared to have been inserted into the photograph.
There is a serious question as to whether the group that the respondent
testified that he organized really exists? There are no documents to
establish that the group he calls “MCIC” . . . ever existed and what
little evidence the respondent submitted could have been created over
any word processing computer. There are no “official” pamphlets or
other literature about this organization nor any reference to it within
the Country Reports for the Democratic Republic of the Congo.
As to the wife’s testimony, and regarding the occasion of the
alleged abuse at the hands of the soldiers (police?), the respondent’s
wife does not have any records to indicate that she ever saw a doctor
or went to a hospital for any treatment.
In total, there is insufficient proof that the respondent did in fact
suffer any alleged persecution from the hands of the Kabila regime.
Given the evidence, or lack thereof, and as well what strongly appears
to be altered photographs for which there are no originals to view, the
Court finds that the evidence and the testimony of the respondent and
his wife are not sufficient to establish his eligibility for a grant of
asylum.
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(emphasis added). Thus, the IJ’s denial of asylum was based primarily on two
factors: (1) Kubandi did not provide “credible and consistent testimony” and thus,
was not a “credible witness,” and (2) he failed to present sufficient corroborating
evidence that the MCIC -- again, his asylum application was based on his
membership in this group -- existed.
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 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
unwilling to return to his home country or to avail himself of that country’s
protection “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).
The asylum applicant carries the burden of proving statutory “refugee”
status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant
satisfies this burden by showing, with specific and credible evidence: (1) past
persecution on account of a statutorily listed factor, or (2) a “well-founded fear” of
future persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
The second prong of both the past- and future-persecution tests requires the
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applicant to show that the alleged persecution was “on account of a protected
ground.” See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)
(discussing two-pronged tests for past and future persecution). Thus, to establish
either type of persecution, the petitioner must show a causal connection between
the persecution and the protected ground he asserts. The petitioner may establish
this causal connection by “presenting specific, detailed facts showing a good
reason to fear that he or she will be singled out for persecution on account of” a
statutorily protected ground. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231
(11th Cir. 2005) (internal quotation marks omitted).
An adverse credibility determination alone may be fatal to an asylum
application. Forgue, 401 F.3d at 1287. 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, the IJ must make “clean
determinations of credibility.” Yang v. U.S. Att’y. Gen., 418 F.3d 1198, 1201
(11th Cir. 2005) (internal quotation marks omitted). “The weaker an applicant’s
testimony, . . . the greater the need for corroborative evidence.” Id. After an
adverse credibility finding is made, the applicant bears the burden of showing this
decision was not supported by specific, cogent reasons or was not based on
substantial evidence. Forgue, 401 F.3d at 1287. We have held that an IJ’s
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concerns about the credibility of an applicant on “key elements of the claim,”
combined with the applicant’s failure to rebut these with sufficient corroborating
evidence and explanation, supported a finding that the applicant did not qualify for
asylum. Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1369 (11th Cir. 2005).
Again, from our review of the order, the IJ enumerated two primary reasons
for denying asylum: (1) Kubandi’s lack of credibility, and (2) Kubandi’s failure to
provide credible corroborating evidence that the MCIC existed, or that Kubandi
had founded the group, or that Kubandi had participated in MCIC-sponsored
activities that led to his persecution. 3 These factors concerned the causal
connection between the alleged persecution and the alleged statutorily protected
ground (here, Kubandi’s MCIC membership). Before finding that Kubandi was
not credible, the IJ enumerated the corroborating evidence presented to him at the
hearing. Contrary to Kubandi’s argument that the IJ based his decision solely on
an adverse credibility determination, our careful review of the record and parsing
of the IJ’s order reveals that the IJ not only did not believe Kubandi, but also was
3
To the extent Kubandi raises arguments that exceed the IJ’s reasoning for denying asylum,
we are confined to reviewing the IJ’s decision. Cf. Wei Chen, 2006 WL 2570870 at *3 n.4 (“In his
brief, Chen argues the merits of his claims for asylum and withholding of removal. The IJ, however,
did not reach the merits of Chen's application, instead limiting his discussion to Chen's credibility.
As a result, we are confined to reviewing the IJ's adverse credibility determination.” (citing
Gonzales v. Thomas, 126 S. Ct. 1613, 1615 (2006) (holding federal courts are not entitled to pass
judgment on issues the agency did not address))).
8
unpersuaded by the additional evidence Kubandi presented in corroboration of his
testimony.
On this record, we cannot say the record compels us to a different
conclusion than that of the IJ’s -- that is, Kubandi’s evidence was insufficient to
satisfy Kubandi’s burden on the causal connection because he never established his
membership in a statutorily protected group. Indeed, the IJ found, and our review
of the record does not compel us to reach a different conclusion, that Kubandi had
not established the existence of the MCIC group, let alone his membership in it.
Simply put, Petitioners have not met their burden to show the IJ’s decision, which
was based not only on an adverse credibility determination but also on a lack of
corroborating evidence, was not supported by substantial evidence. Accordingly,
we deny the petition for review.
PETITION DENIED.
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