Mbo v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 28, 2005
Charles R. Fulbruge III
Clerk
No. 05-60082
Summary Calendar
SARAH AKO MBO
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the Board of Immigration
Appeals
No. A97 185 281
Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Petitioner Sarah Ako Mbo challenges the decision of the
Board of Immigration Appeals adopting and affirming the
Immigration Judge’s decision to deny her applications for asylum
and withholding of removal. For the reasons stated below, we
AFFIRM.
*
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that this opinion should not be published and is not precedent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.
I. FACTUAL AND PROCEDURAL BACKGROUND
Sarah Ako Mbo (“Ako Mbo”) is a citizen of Cameroon who
entered the United States without inspection on March 11, 2002,
using a fake passport and visa. The Immigration and
Naturalization Service issued Ako Mbo a Notice to Appear on April
7, 2003, for violating the Immigration and Nationality Act
(“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) (2000).
She admitted the charges against her and requested relief in the
form of (1) asylum under INA § 208, 8 U.S.C. § 1158; (2)
withholding of removal under INA § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A); (3) withholding of removal under Article 3 of
the United Nations Convention Against Torture; and (4) voluntary
departure under INA § 240B, 8 U.S.C. § 1229c. She appeals the
Board of Immigration (“BIA”) decision summarily affirming the
Immigration Judge’s (“IJ”) opinion denying her requests for
relief.
At her hearing before the IJ, Ako Mbo testified that she
fled to the United States because she suffered persecution in
Cambodia due to her political beliefs and her affiliation with
the Social Democratic Front and the Southern Cameroons National
Council. Specifically, Ako Mbo said that she was arrested for
her views and beaten while in custody on three separate
occasions. She claimed that the first time, February 8, 1996,
she was interrogated at the police station, beaten with an
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electrical cord, and detained for three days. She was allegedly
arrested for a second time on April 13, 1997, when police entered
her home at 4:00 a.m. and took her to the police station where
they interrogated and beat her so severely that she became ill.
Ako Mbo claimed that she was detained for four days and was
beaten each day. She claimed that she was arrested and beaten
for a third time on January 19, 2000, in retaliation for her
participation in a rally celebrating the independence of the
Southern Cameroons. Ako Mbo also testified that on another
occasion she was abducted by unknown assailants who allegedly
beat and raped her and told her not to participate in an upcoming
Southern Cameroon independence event.
The IJ found that Ako Mbo’s testimony was not credible and
that she had thus failed to present specific evidence
establishing that she had been a victim of persecution on account
of her race, religion, nationality, political opinion, or
membership in a particular social group, or that she had a well-
founded fear that she would likely suffer such persecution if she
returned to Cameroon. Specifically, the IJ found that Ako Mbo’s
testimony was not credible due to her nervous demeanor on the
witness stand and her inability to deviate from her prepared
statement when asked to clarify parts of her story. The IJ
further found numerous inconsistencies in Ako Mbo’s story and
discrepancies between her testimony and her prepared statement
that Ako Mbo could not explain. The IJ also had reason to
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believe that she had doctored some of the evidence that she used
to support her testimony, including a photograph of her alleged
captors. Based on these findings, the IJ denied Ako Mbo’s
requests for relief and held that her application for asylum was
frivolous because it was supported by false testimony.
The BIA reviewed the IJ’s decision denying Ako Mbo’s
requested relief and summarily affirmed it, adopting the fact
finding and reasoning contained therein. Ako Mbo petitioned this
court for review, challenging the IJ’s finding that her testimony
was not credible.
II. DISCUSSION
A. Standard of Review
We review the BIA’s factual findings to determine if they
are supported by substantial evidence. INS v. Elias-Zacharias,
502 U.S. 478, 481 (1992); Mikhael v. INS, 115 F.3d 299, 302 (5th
Cir. 1997). “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). Thus, the petitioner must prove that the evidence she
presented was so compelling that no reasonable factfinder could
reach a different conclusion. INA § 242(b)(4)(B), 8 U.S.C.
§ 1252(b)(4)(B) (“[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled
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to conclude to the contrary . . . .”); Elias-Zacharias, 502 U.S.
at 483-84; Chun, 40 F.3d at 78.
“We have authority to review only an order of the BIA, not
the IJ, unless the IJ’s decision has some impact on the BIA’s
decision.” Mikhael, 115 F.3d at 302; see also Chun, 40 F.3d at
78. Here, because the BIA adopted and affirmed the IJ’s
decision, we must review the IJ’s decision for substantial
evidence. Id.Furthermore, the finder of fact, not this court, makes
credibility determinations. See Chun, 40 F.3d at 78; Vasquez-
Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977). “We
cannot substitute our judgment for that of the BIA or IJ with
respect to the credibility of the witnesses or ultimate factual
findings based on credibility determinations.” Chun, 40 F.3d at
78. Moreover, “[a]s we have previously made emphatically clear,
‘[w]e will not review decisions turning purely on the immigration
judge’s assessment of the alien petitioner’s credibility.’” Id.(quoting Mantell v. INS, 798 F.2d 124, 127 (5th Cir. 1986)).
B. Analysis
The IJ determined that Ako Mbo was not credible after
observing her testimony on the witness stand, taking “into
account not only her demeanor while testifying but also her
rationality in terms of consistency and her persuasiveness of her
testimony.” Oral Decision of the Immigration Judge, Aug. 20,
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2003, at 4; R. at 46. The denial of relief in this case turned
purely on the IJ’s assessment of Ako Mbo’s credibility, and
without credible evidence, the IJ had no basis on which to grant
the requested relief. Because Ako Mbo has not otherwise shown
that the evidence compels a contrary conclusion, and because we
will not substitute our judgment of Ako Mbo’s credibility for
that of the IJ, we affirm the BIA’s decision. See Chun, 40 F.3d
at 78; Mantell, 798 F.2d at 127; Vasquez-Mondragon, 560 F.2d at
1226.
III. CONCLUSION
For the foregoing reasons, the decision of the BIA is
AFFIRMED.
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