Gotosa v. Mukasey

NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0416n.06
Filed: July 11, 2008
No. 07-3710
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBIN GOTOSA, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF AN
) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
MICHAEL B. MUKASEY, Attorney General of the )
United States, )
)
Respondents. )
Before: BOGGS, Chief Judge; MARTIN and SILER, Circuit Judges.
PER CURIAM. Petitioner Robin Gotosa (“Gotosa”) petitions for review of an order of the
Board of Immigration Appeals (“BIA”) denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (the “application”). For the following reasons,
we DENY the petition.
BACKGROUND
In 1998, Gotosa, a native of Zimbabwe, legally entered the United States to attend college.
He graduated from college in 2004, and filed the application in October of the same year, when his
student visa expired. He sought asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”) based on his political opinion: his alleged alliance with
Movement for Democratic Change (the “MDC”), a political organization in Zimbabwe that promotes
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Gotosa v. Mukasey
democratic elections and opposes the country’s president, Robert Mugabe. Specifically, Gotosa
claimed that in December 1999 when he returned to Zimbabwe to visit his brother, Rodney Gotosa
(“Rodney”), a government-backed gang, the Green Bombers, approached them following an MDC
meeting that both had attended. The Green Bombers warned Rodney to stop his pro-MDC activities
and then let them go. Gotosa further claimed that in July 2004, the Green Bombers detained and
tortured Rodney because he failed to heed their earlier warning regarding his MDC activities.
At his immigration hearing, Gotosa presented no evidence to verify his accounts of Rodney’s
torture, to establish his or his family’s membership in the MDC, or to prove his fear of future
persecution. After making an adverse credibility finding, the Immigration Judge (“IJ”) denied the
Application. Gotosa appealed to the BIA, which adopted the IJ’s reasoning and affirmed its
decision.
DISCUSSION
When the BIA adopts the IJ’s decision, adding its own commentary, we review both the BIA
and the IJ’s decisions. Lazer v. Gonzales, 500 F.3d 469, 474 (6th Cir. 2007) (citation omitted). We
review the IJ’s factual findings, including adverse credibility findings, under the substantial evidence
standard. Hamid v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007) (internal references omitted). Thus,
we must uphold the IJ’s factual findings if they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Lazer, 500 F.3d at 474-75 (citation
omitted). We review the IJ’s legal determinations de novo. Alexandrov v. Gonzales, 442 F.3d 395,
404 (6th Cir. 2006) (citation omitted). We can only reverse the BIA or IJ’s decisions if the evidence
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the petitioner presents “not only supports a contrary conclusion, but indeed compels it.” Ouda v INS,
324 F.3d 445, 451 (6th Cir. 2003) (citation omitted) (emphasis in original).
The IJ denied the Application because of material discrepancies between Gotosa’s statements
to the asylum officer and his testimony at the hearing, coupled with his failure to otherwise prove
his claims. Gotosa testified that his and Rodney’s encounter with the Green Bombers in 1999 lasted
approximately thirty minutes. On cross-examination, however, Gotosa admitted that he previously
described the encounter as “brief.” Gotosa also testified that in 2004 the Green Bombers detained
Rodney for a month. His original statement to the asylum officer indicated that Rodney was held
for ten days. At the hearing, Gotosa claimed that he and his family members were active supporters
of the MDC. His alleged support was manifested only in attending the December 1999 MDC
meeting. He was not a member of the MDC despite the existence of an American chapter. Gotosa
claimed to have sent approximately $200 to Rodney and his friends over the years but provided only
one receipt for a money order of $10 dated approximately one month before the hearing. Gotosa
failed to produce copies of his parents’ or Rodney’s MDC membership cards. His other brother,
Brian Gotosa, testified that he never saw MDC correspondence or literature in his parents’ home,
nor did he ever converse with his parents about the MDC. Gotosa also testified that Rodney refused
to leave Zimbabwe because he was dedicated to the MDC’s cause. However, he originally told the
asylum officer that Rodney refused to leave Zimbabwe because he was still in school and had a
career there.
Gotosa argues that the IJ incorrectly admitted into evidence the notes from Gotosa’s
interview with the asylum officer. The IJ, however, admitted the notes for impeachment purposes
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only and observed that Gotosa could not cross examine their author due to the author’s
unavailability. The IJ did not exclusively rely on the inconsistencies between the notes and Gotosa’s
hearing testimony. Moreover, Gotosa had the opportunity to defend against the statements
contained in the notes. See Alexandrov at 406-07 (“[W]here a hearsay document is admitted but not
primarily relied upon and the [applicant] receives the opportunity to rebut the document’s
conclusions through his witnesses, the fundamental fairness of the proceedings has not been
impinged.”). Consequently, the IJ did not deny Gotosa due process of law since he was not
prejudiced by the admission of the notes.
As to Gotosa’s claims of withholding of removal and CAT, when an applicant fails to meet
his burden under the requirements for asylum, “the record necessarily supports the finding that [the
applicant does] not meet the more stringent standard of a clear probability of persecution required
for withholding of [removal].” Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006). Moreover,
Gotosa failed to prove that the government of Zimbabwe was looking for him. There was no
indication that it had any reason to torture him upon his return. Gotosa, therefore, failed to establish
a genuine fear of future persecution and his CAT claim.
There was no corroboration from the MDC regarding Rodney’s activities in the organization
and the only corroboration of the family’s involvement in the MDC came from the family members
themselves. Therefore, the IJ found that Gotosa’s testimony lacked credibility and was not
corroborated by unbiased sources. The IJ’s credibility findings are reasonable and Gotosa’s
inconsistencies went to the heart of his asylum claim. See Sylla v. INS, 388 F.3d 924, 925 (6th Cir.
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2004). Thus, we uphold the IJ’s and the BIA’s decisions, as we are not compelled to conclude to
the contrary.
PETITION DENIED.1
1
In denying Gotosa relief from deportation, we take notice of the continuing deterioration of
the political and social situations in Zimbabwe, and point Gotosa to 8 U.S.C. § 1229a(c)(7)(C)(ii),
which allows him to reopen his asylum petition “based on changed country conditions arising in the
country of nationality or the country to which removal has been ordered, if such evidence is material
and was not available and would not have been discovered at the previous proceeding.” However,
in Harchenko v. INS, 349 F.3d 405, 410 (6th Cir. 2004), we noted that a petitioner who files a
motion to reopen an asylum petition “based on changed country conditions cannot rely on
speculative conclusions or mere assertions of fear of possible persecution, but instead must offer
reasonably specific information showing a real threat of individual persecution. The feared
persecution must relate to an alien individually, not to the population generally.” (internal quotation
marks and citations omitted).
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