Osman v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 16, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 04-60217
____________
REEM ABDULLA OSMAN,
Petitioner,
versus
ALBERTO R GONZALES, U S ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 225 587
Before GARWOOD, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner, Reem Abdulla Osman (“Osman”), a native and citizen of Sudan, was charged with
overstaying her nonimmigrant visa without Immigration and Naturalization Service (“INS”)
authorization. Osman conceded she was subject to removal, but requested asylum, withholding of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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removal, and relief under the Convention Against Torture (“CAT”). Osman challenges the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) rejection of her
applications.
Osman asserts she suffered past persecution and has a well-founded fear of future persecution
on account of her political opinions. Specifically, Osman claims her problems with the government
derive from her membership in the Sudanese Women’s Union (“SWU”), an organization that
promotes wo men’s rights. She claims that her parents had been active in various political
organizat ions in Sudan, including the SWU. Her participation in the SWU included recruiting
members, educating women, and assisting in organizing political demonstrations. Osman claims she
was seized and questioned by the Sudanese “secret service” on two separate occasions because of
her participation in the SWU. Osman asserts she was interrogated, physically assaulted, sexually
molested, and threatened while she was detained. After government security officials questioned
Osman’s mother about her political activities, Osman left Sudan for Saudi Arabia. She then obtained
a visitor visa from the United States embassy by falsely claiming she planned to go shopping.
The IJ concluded Osman was not credible and rejected her application for asylum, withholding
of removal, and relief under CAT. The BIA affirmed the IJ’s decision. Osman now argues she was
denied due process because the IJ improperly limited her presentation of relevant witness testimony
and refused to admit a psychological evaluation into evidence. She also contends the IJ erred in
making adverse credibility findings, failed to consider evidence, and erred in finding that she did not
have a well-founded fear of persecution.
This court reviews o nly the BIA’s decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997). Since the BIA expressly adopted the IJ’s findings, however, we may review the findings of
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the IJ. Id. We review the BIA’s factual conclusion that an alien is not eligible for asylum for
substantial evidence and questions of law de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th
Cir. 2001). “Under substantial evidence review, we may not reverse the BIA’s factual determinations
unless we find not only that the evidence supports a contrary conclusion, but that the evidence
compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (emphasis in original) (citing INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992)).
Osman first argues the IJ violated her due process rights by denying her the opportunity to
present evidence in her favor by limiting the testimony of her brother, Wail Osman. Osman’s brother
was not excluded from testifying. Rather, the IJ simply limited his testimony to those areas discussed
in the witness list and evidence within his personal knowledge. Osman cannot establish substantial
prejudice from the IJ limiting her brother’s testimony. See Anwar v. INS, 116 F.3d 140, 144 (5th Cir.
1997) (“Due process challenges to deportation proceedings require an initial showing of substantial
prejudice.”). The IJ properly elicited “all relevant and useful information bearing on the applicant’s
eligibility for asylum.” 8 C.F.R. § 208.9(b)(2005). Thus, Osman was not denied her due process
rights. Cf. Podio v. INS, 153 F.3d 506, 510-11 (7th Cir. 1998) (holding petitioner was denied due
process when the IJ refused to allow his brother and sister to testify).
Osman also contends the IJ improperly refused to admit and consider the psychological
evaluation prepared by Dr. Joy Breckenridge. She argues the IJ wrongly concluded that the report
failed to include Dr. Breckenridge’s methodology of evaluation because it indicated it was based on
three interviews o f Osman. Osman maintains the exclusion of the evaluation was “extremely
prejudicial” because it would have demonstrated her symptoms were consistent with her testimony
about a history of persecution.
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Contrary to Osman’s assertion, the IJ did admit the report into the record. He stated in
response to a government objection to admitting the report into evidence that “the objection is
sustained. However, I will give it the weight that it deserves . . . [T]he objections are sustained in
the sense that they were noted by the Court. I’ll let these documents remain on the record and I’ll
give them the weight that they deserve.” As a result, the IJ considered the report and gave it the “the
weight that [it] deserved” in light of the circumstances. He noted that there was no evidence as to
the length of the interviews or the methods used in formulating the assessments or conclusions, and
that Dr. Breckenridge was unavailable to be cross-examined. Therefore, he concluded the report was
“nothing more than a series of interviews, a recitation of what [petitioner] stated, and a summary
conclusion as to the conclusion of Ms. Breckenridge without any support of the methodology and
the analysis used in coming to that conclusion.” We agree. Osman fails to establish that she was
denied due process by the IJ’s failure to accept or consider Dr. Breckenridge’s report.
Osman also asserts the IJ clearly erred in finding that she was not credible. She argues that
her testimony did not lack specificity and that the IJ’s ruling was based on impermissible grounds.
Osman relies on In re B), 21 I & N Dec. 66, 70 (BIA 1995) in arguing that the IJ erred in finding the
petitioner was not credible simply based upon her demeanor. The BIA in In re B) believed that the
petitioner’s testimony was plausible, detailed, internally consistent, consistent with the asylum
application, and unembellished. Id. Despite Osman’s contention, the IJ did not simply rely on her
demeanor in denying her claim. In fact, he believed that Osman’s testimony was “basically general,”
lacked specificity, and implausible.
Osman also challenges the IJ’s finding that she was not credible based, in part, on the fact she
entered the United States with a visa rather than as a refugee. The IJ noted that Osman had lied by
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applying for a visitor’s visa to the United States, instead of applying for asylum at the United States
embassy in Saudi Arabia. “Untrue statements by themselves are not reason for refusal of refugee
status,” but should be evaluated “in the light of all of the circumstances of the case.” Turcios v. INS,
821 F.2d 1396, 1400 (9th Cir. 1987). In Turcios the court determined that the petitioner’s
“misrepresentations are wholly consistent with his testimony and application for asylum: he did so
because he feared deportation to El Salvador. In this context, [petitioner’s lie to the INS that he was
from Mexico] does not detract from but supports his claim of fear of persecution. It does not support
a negative credibility finding.” Id. at 1400-01. In this case, the IJ examined Osman’s statement in
context. Unlike the petitioner in Turcios, Osman cannot rely on her fear of persecution in Sudan as
a basis for her false statement because she was in Saudi Arabia at the time she made it. The IJ’s
comments on Osman’s demeanor were merely supplementary to these findings. Accordingly, we find
that the IJ’s credibility findings were based on “a reasonable interpretation of the record and therefore
supported by substantial evidence.” Chun, 40 F.3d at 79.
Osman also contends the IJ failed to consider and misinterpreted documentary evidence. The
IJ was entitled to discount the value of a letter from a psychologist in the Sudan since he determined
there were indications it was submitted merely to bolster Osman’s story of abuse. Similarly, the IJ
concluded the letters from Sudanese human rights leaders were merely form letters. Finally, the IJ
is not required to discuss and analyze every piece of evidence a petitioner presents. See Martinez v.
INS, 970 F.2d 973, 976 (1st Cir. 1992) (“Where, as here, the Board has given reasoned consideration
to the petition, and made adequate findings, we will not require that it address specifically each claim
the petitioner made or each piece of evidence the petitioner presented.”); Osuchukwu v. INS, 744
F.2d 1136, 1142-43 (5th Cir. 1984) (the BIA “has no duty to write an exegesis on every contention.
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What is required is merely that it consider the issues raised, and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and not merely
reacted.”).
For the above stated reasons, Osman’s petition is DENIED.
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