Kibrom Beraki v. Jefferson Sessions, III

Case: 17-60040 Document: 00514350157 Page: 1 Date Filed: 02/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-60040
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 16, 2018
KIBROM BERAKI,
Lyle W. Cayce
Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 789 732
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Kibrom Beraki, a native and citizen of Eritrea, applied for asylum,
withholding of removal, and relief under the Convention Against Torture
(CAT). He asserted that, if he returned to Eritrea, he would be subject to
persecution on account of his religion, his political opinion, and his desertion
of the military. The immigration judge (IJ) denied relief, and the BIA
dismissed Beraki’s appeal. Beraki petitioned this court to review the BIA’s
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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order, but the matter was remanded to the agency, on the respondent’s motion,
to address the omission of a transcript from the administrative record.
On remand, the IJ determined that the administrative record was
complete and accurate. The BIA dismissed Beraki’s appeal, addressing both
the IJ’s decision regarding the administrative record as well as the IJ’s denial
of asylum, withholding of removal, and relief under the CAT. Beraki now
petitions for review of the BIA’s decision.
Administrative record
Beraki argues that the agency’s finding that the administrative record is
complete and accurate is not supported by substantial evidence. He seeks a
remand to the agency, contending that deficiencies in the administrative
record violate his right to due process.
We have authority to review only the BIA’s decision, but we “may
consider the IJ’s decision to the extent that it influenced the BIA.” Cabral
v. Holder, 632 F.3d 886, 889 (5th Cir. 2011). The factual findings of the BIA
and the IJ are reviewed for substantial evidence, while questions of law are
reviewed de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). The
substantial evidence test requires that the decision be based on the evidence
presented and that the decision be substantially reasonable. Carbajal-
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). “The [petitioner] has the
burden of showing that the evidence is so compelling that no reasonable
factfinder could reach a contrary conclusion.” Chen v. Gonzales, 470 F.3d 1131,
1134 (5th Cir. 2006).
Beraki asserts that the administrative record is incomplete because it
does not include a transcript of a hearing held on March 5, 2009. The record,
however, provides substantial support for the agency’s determination that,
although a hearing was scheduled, no hearing was actually held on the date in
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question; accordingly, the agency’s factual finding will not be disturbed. See
Zhu, 493 F.3d at 593.
In addition to the contention that a transcript is missing, Beraki asserts
that there are several other problems with the administrative record, including
an undated transcript, the transcriber’s frequent use of the “undiscernible” in
place of testimony, the unreliability of the transcriber’s certification, excessive
duplication, and the omission of his previous petition for review and the brief
he submitted to this court in connection with that petition. In order to
establish his claim of a due process violation based on alleged deficiencies in
the administrative record, Beraki must make a showing of prejudice; he has
failed to make the requisite showing. See Bolvito v. Mukasey, 527 F.3d 428,
438 (5th Cir. 2008); Gonzales-Buitrago v. I.N.S., 1993 WL 391512, 4 (5th Cir.
Sept. 24, 1993) (unpublished).
Denial of asylum, withholding of removal, and relief under the CAT
The IJ determined that Beraki’s claims for asylum, withholding of
removal, and protection under the CAT failed because he was not a credible
witness and because he failed to provide reasonably available corroborating
evidence to support his claims of persecution in Eritrea. The BIA agreed with
the IJ’s adverse credibility determination, noting that Beraki had not provided
other evidence to independently establish his claims. Beraki challenges the
adverse credibility determination, as well as the determination that he did not
provide corroborating evidence.
Credibility determinations are factual findings that are reviewed for
substantial evidence. See Vidal v. Gonzales, 491 F.3d 250, 254 (5th Cir. 2007).
The IJ and BIA “may rely on any inconsistency or omission in making an
adverse credibility determination as long as the totality of the circumstances
establishes that an asylum applicant is not credible.” Wang v. Holder, 569 F.3d
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531, 538 (5th Cir. 2009) (internal quotation marks and citation omitted)
(emphasis in original). This court will defer to a “credibility determination
unless, from the totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.” Id. (internal
quotation marks and citation omitted).
Beraki first asserts that the IJ erred in determining that there were
inconsistencies between his testimony and that of his witness, Mr. Solomon.
However, as the IJ noted, Beraki testified that he was detained in 2007 during
the months of June, July, and August; that is inconsistent with Mr. Solomon’s
testimony, deemed credible by the IJ, that Beraki worked at his home up until
Mr. Solomon’s departure from Eritrea, which, as shown by Mr. Solomon’s
passport, occurred on July 21, 2007. Beraki also contends that the IJ
incorrectly determined that he gave internally inconsistent testimony. The IJ
noted, however, that at a hearing held on October 21, 2008, Beraki testified
that he worked for Mr. Solomon in March, April, and May of 2007. At a later
hearing, Beraki testified that Mr. Solomon asked him in late April of 2007 to
improve a design for his house and that he completed the task in one day and
gave the new design to Mr. Solomon on May 3, 2007. Beraki also testified that
the design job was the only work he did for Mr. Solomon. ROA.461. In view of
the inconsistencies discussed above, as well as other testimonial
inconsistencies discussed by the BIA that Beraki does not challenge, we
conclude that the agency’s adverse credibility determination as to Beraki is
supported by substantial evidence. See Vidal, 491 F.3d at 254. 1
1 Beraki also contends that the IJ erred in determining that he changed his story;
however, in his brief he does not specify the testimony at issue, or provide a record citation
to the relevant testimony. Beraki’s argument on this point is inadequately briefed, and it is
therefore considered abandoned. See Yang v. Holder, 664 F.3d 580, 589 (5th Cir. 2011).
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Beraki asserts that the IJ and the BIA erred in concluding that he should
have provided corroborating evidence from family members and friends to
support his claims. He argues that he was unable to provide such evidence due
to his long journey from Eritrea to the United States, which took him through
several countries.
“[A]pplicants can be required to provide reasonably obtainable
corroborating evidence even when their testimony is credible.” Yang v. Holder,
664 F.3d 580, 587 (5th Cir. 2011). We may not reverse the trier of fact’s
determination that corroborating evidence was available unless a reasonable
trier of fact would be compelled to conclude otherwise. Id.
The record reflects that Beraki reached the United States in April 2008,
and he was represented by counsel during his proceedings before the
immigration court, stretching back to June 4, 2008. He was able to obtain a
letter, dated May 30, 2008, supporting his contention that he was a member of
a Pentecostal church in Eritrea. Because the evidence does not compel a
contrary conclusion, we will not disturb the agency’s determination that Beraki
failed to provide reasonably available corroborating evidence. See id.
Finally, Beraki contends that he established an entitlement to asylum,
withholding of removal, and relief under the CAT. In addition to his testimony,
which, as discussed above, was determined to lack credibility, he relies on
reports as to the conditions in Eritrea. The agency’s determination that Beraki
is not entitled to asylum, withholding of removal, and relief under the CAT is
reviewed for substantial evidence. Zhang v. Gonzales, 432 F.3d 339, 344 (5th
Cir. 2005).
A grant of asylum is discretionary, and to be eligible an applicant must
be unable or unwilling to return to his home country because of “persecution
or a well-founded fear of persecution on account of race, religion, nationality,
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membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). An applicant demonstrates a well-founded fear of
persecution by showing “a subjective fear of persecution” that is “objectively
reasonable.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001). If
past persecution is established, then the alien is entitled to a rebuttable
presumption of a well-founded fear of future persecution. 8 C.F.R.
§ 208.13(b)(1).
A claim for withholding of removal does not require proof of subjective
fear. See Zhang, 432 F.3d at 344. However, “[w]ithholding of removal is a
higher standard than asylum.” Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir.
2002). An applicant for withholding of removal has the burden of showing that
it is “more likely than not” that his life or freedom would be threatened by
persecution on account of one of the five categories mentioned under asylum.
Id.
Because Beraki provided no corroborating evidence to support his claims
of past persecution, he failed to establish past persecution given the agency’s
adverse credibility determination. See Dayo v. Holder, 687 F.3d 653, 657 (5th
Cir. 2012). As to Beraki’s claims of feared future persecution on grounds of
religion, political opinion, and military desertion, only Beraki’s assertion that
he was a member of the Pentecostal church has any record support aside from
his testimony. However, the country reports on which Beraki relies establish
nothing more than a speculative fear of persecution based on religion; the
record does not compel a conclusion that Beraki has shown “a subjective fear
of persecution” that is “objectively reasonable,” so as to be eligible for asylum.
Lopez-Gomez, 263 F.3d at 445. Because he has not shown an entitlement to
asylum, Beraki cannot establish an entitlement to withholding of removal. See
Dayo, 687 F.3d at 658-59. In view of the foregoing, substantial evidence
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supports the agency’s denial of asylum and withholding of removal. See Zhang,
432 F.3d at 344.
In order to receive protection under the CAT, an applicant must show
that it is “more likely than not” that he would be tortured if removed to his
home country by, or with the acquiescence of, government officials acting under
the color of law. See 8 C.F.R. § 208.16(c)(2); Hakim v. Holder, 628 F.3d 151,
155 (5th Cir. 2010). Beraki relies on his testimony and the Department of
State’s country report in an attempt to establish his CAT claim, but he fails to
make the necessary showing. See Hakim, 628 F.3d at 155-57. We conclude
that substantial evidence supports the denial of Beraki’s claim for protection
under the CAT. See Zhang, 432 F.3d at 344.
PETITION FOR REVIEW DENIED.
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