Ly v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3692
___________
IBRAHIMA LY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-221-860)
Immigration Judge: Honorable Dorothy Harbeck
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 18, 2012
Before: SLOVITER, SMITH AND COWEN, Circuit Judges
(Opinion filed: June 20, 2012)
_________
OPINION
_________
PER CURIAM
The pro se petitioner, Ibrahima Ly, asks us to reverse an order of the Board of
Immigration Appeals (BIA) that rejected his application for asylum and derivative relief.
For the following reasons, we will deny his petition for review of the agency’s decision.
1
Ly is a native and citizen of the Republic of Guinea who arrived in the United
States in 2008; having overstayed his business visa, he was placed into removal
proceedings. Ly applied for asylum, withholding of removal, and protection under the
United Nations Convention Against Torture (CAT), arguing that he had been mistreated
in Guinea on account of his political activity, and specifically for his membership in the
Union for Progress and Renewal (UPR) political party. According to his asylum
application, Ly had become convinced that “the military dominated government of
President Conte was a disaster for Guinea.” Believing that the UPR was a force for
positive change, Ly started helping the party “near the end of 2003 by importing T shirts
with photos of the party leader and party logo on them.” Administrative Record (A.R.)
252. Tragedy struck when his father, who was also a UPR member, was shot and killed
by a government soldier while striking in 2007. Id. Later, Ly participated in an anti-
government meeting that was raided by the military; he was eventually apprehended and
was imprisoned for around four months, during which period he was interrogated, beaten,
and otherwise abused. A.R. 253. After obtaining “unofficial” release from custody by
having his family bribe prison officials, Ly “made plans to save money and to get a visa
from the U.S. Embassy to come to the United States,” successfully doing so in 2008. Id.
Ly acknowledged that a recent coup in Guinea had affected the power structure that he
feared, but insisted that “the current military leaders are just as bad or worse than
President Conte,” reaffirming that his life would “be in danger” if he returned to Guinea.
Id. In support of his application, Ly submitted, among other materials, a letter from his
wife (A.R. 201) and a certification of his involvement with the UPR (A.R. 198).
2
Following the close of testimony, relief was denied by an Immigration Judge (IJ),
who found Ly to be lacking in credibility and his evidentiary proffer to be without
sufficient corroboration. Of particular significance to the IJ’s credibility decision was the
fact that neither Ly’s asylum application nor his wife’s letter related that soldiers were
still actively looking for him, whereas Ly had testified at his merits hearing that he was
still under active scrutiny for his anti-government activities and that his wife had been
harassed by the military. See A.R. 94–95; see also A.R. 140, 152 (testimony). On
appeal, the BIA upheld the adverse credibility and corroboration determinations, and
although it narrowed slightly the basis of the former, it echoed the IJ’s concern that Ly’s
written submissions “did not indicate that the military had continued to search for him”
after his departure. A.R. 3. The BIA also noted that Ly had waived his CAT claims by
failing to argue them on appeal. A.R. 5.
Now proceeding without counsel, Ly timely petitions for review of the BIA’s
decision. The Government urges us to uphold the agency’s determination.
Pursuant to 8 U.S.C. § 1252(a)(1), we have jurisdiction over final agency orders of
removal. Vera v. Att’y Gen., 672 F.3d 187, 192 (3d Cir. 2012); see also Gomez-Zuluaga
v. Att’y Gen., 527 F.3d 330, 340–46 (3d Cir. 2008) (discussing substantive asylum
standard). When, as here, “the BIA both adopts the findings of the IJ and discusses some
of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ
and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). The factual
determinations of both opinions are evaluated under the same “substantial evidence”
standard, a deferential mode of review in which the agency’s findings of fact are
3
conclusive unless a reasonable adjudicator would be compelled to conclude to the
contrary. Yusupov v. Att’y Gen., 650 F.3d 968, 977 (3d Cir. 2011) (citing cases); see
also Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003) (“Adverse credibility
determinations are factual findings subject to substantial evidence review.”). “Where the
record supports plausible but conflicting inferences in an immigration case, the . . . choice
between those inferences is, a fortiori, supported by substantial evidence.” De Hincapie
v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007).
Salient to our decision is the operation of the REAL ID Act, Pub. L. No. 109-13,
119 Stat. 231, 302 (2005), which applies because Ly first filed his asylum application
after the Act’s effective date of May 11, 2005. See Dong v. Att’y Gen., 638 F.3d 223,
229 n.3 (3d Cir. 2011). The Act affected the processes of determining credibility and
requesting corroboration. See Guta-Tolossa v. Holder, 674 F.3d 57, 62 (1st Cir. 2012)
(citing 8 U.S.C. § 1158(b)(1)(B)(ii)). In assessing credibility, the agency must evaluate
(among other factors) the alien’s “demeanor, candor, or responsiveness,” the “inherent
plausibility” of his account, the “consistency between [his] written and oral statements”
(accounting for “the circumstances under which the statements were made”), and the
internal consistency of his statements and their relationship to other evidence in the
record, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of [his] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). The presence of a
single identified ground can suffice to support an adverse credibility determination. Rizk
v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (quoting Wang v. INS, 352 F.3d 1250,
1259 (9th Cir. 2003)).
4
Having conducted a thorough review of the administrative record, we agree with
the Government that the omission from Ly’s written submissions of the Guinean
military’s continued interest in pursuing him, as well as his failure to address the
military’s active harassment of his wife, constitutes “substantial evidence” in support of
the adverse credibility determination. This gap went to the heart of his claim; ongoing
military scrutiny would be extraordinarily relevant to the discussion and analysis of the
likelihood of future persecution, as it would serve to reinforce his otherwise-generalized
fear of remaining in Guinea (and his associated “certain[ty] that [his] life w[ould] be in
danger if [he] return[ed] to Guinea”, A.R. 253). 1 His wife, meanwhile, couched her fear
of remaining in the familial home in a conditional tense. She did not relate that she had
been actually harassed by soldiers, or that the military was looking for Ly, but rather that
she was concerned about the possibility of becoming “a victim of sexual or physical
harassment” if she remained in the familial home. A.R. 201.
As the Government observes, such an omission need not doom Ly’s credibility or
his asylum application as a whole, and it was not emphasized as a potential and
problematic discontinuity during his main merits hearing. See Kin v. Holder, 595 F.3d
1050, 1056–57 (9th Cir. 2010) (observing that “[o]missions [from asylum applications]
are not given much significance because applicants usually do not speak English and are
not represented by counsel”; in addition, aliens should be “afforded the opportunity to
1
The Administrative Record reveals that the other persons who submitted affidavits on Ly’s
behalf also discussed his fear of returning to Guinea in speculative terms. See, e.g., A.R. 198
(affirming that Ly “will face further persecution from the New Military Junta . . . because of his
opposition to a military government”).
5
explain inconsistencies within their own personal testimony because the true story may
get lost in translation”); but see id. at 1057 (“When inconsistencies exist between the
testimony of multiple witnesses and documentary evidence, however, it is not a matter of
a communication problem requiring clarification, but of determining how the evidence
fits together.”). Yet while Ly has attacked several of the other findings used to support
the adverse credibility determination, he has not satisfactorily addressed this particular
inconsistency in either his agency appellate documents or in his brief before this Court.
See, e.g., A.R. 64–65 (discussing “escape” ambiguity, wife’s concern for her safety, and
general fear of returning to Guinea); A.R. 13 (counsel: “While I cannot say for certain, I
would imagine that his wife was afraid of the soldiers who were coming to her home,
since prior to the departure of her husband she did not express any fear of remaining in
her home.”) (emphasis added). See generally Pet’r’s Br. Accordingly, this omission was
sufficient to support an adverse credibility determination, which (in turn) did justify the
denial of asylum and derivative relief. 2
Thus, for the foregoing reasons, Ly’s petition for review will be denied.
2
Because we so hold, we need not address the “intuitively related, [but] distinct” concept of
corroboration. Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006). While the IJ’s
corroboration and credibility inquiries were somewhat intertwined, she did not find that Ly was
incredible because of his failure to corroborate, but rather because the material he used to
corroborate his application further exacerbated an important omission.
6