Amadou Soumare v. Eric H. Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0591n.06
No. 07-4417
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 21, 2009
LEONARD GREEN, Clerk
AMADOU TIDIANE SOUMARE, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF A FINAL ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ERIC H. HOLDER, JR., United States )
Attorney General, )
) OPINION
Respondent. )
_______________________________________)
Before: MOORE and WHITE, Circuit Judges; TARNOW, District Judge.*
KAREN NELSON MOORE, Circuit Judge. Petitioner Amadou Tidiane Soumare
(“Soumare”) seeks review of an order of the Board of Immigration Appeals (“BIA”) removing him
to Mauritania. The Immigration Judge (“IJ”) found that Soumare was not credible and was ineligible
for asylum, withholding of removal, and relief under the Convention Against Torture. The BIA
affirmed and adopted the reasoning of the IJ’s decision. For the reasons discussed below, we DENY
the petition for review of the BIA’s decision.
I. BACKGROUND
Soumare, a native and citizen of Mauritania, was born in Nouadhibou, Mauritania, in 1972.
A black Mauritanian of the Soninke ethnic group, Soumare lived with his family in Mauritania until
*
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1989.1 In 1989, he and other family members, along with other black Mauritanians in the
neighborhood, were forcibly removed from their home by armed police and other White Moors.
They were held at a mosque overnight, then taken to the airport and transported to neighboring
Senegal.2 The IJ generally credited this testimony and called it “a matter of historical record that
large numbers of black Mauritanians in the period beginning around 1989 were forcibly deported
from the country.” J.A. at 28 (IJ Dec. at 14). Soumare stayed with his family at a refugee camp in
Dagana, Senegal, for around two weeks and then went to Dakar, Senegal, while the rest of his family
remained at the camp.
In March 1996, Soumare’s father left the refugee camp in Senegal and returned to Mauritania
in an attempt to reclaim the family’s house in Nouakchott, which had been confiscated. One week
later, Soumare learned from a sister living in Nouakchott that after returning his father had been
arrested, tortured, and was now in a hospital in a coma. Soumare immediately returned to
1
The State Department’s 2005 report on Mauritania describes continuing discrimination
against ethnic minorities including black Mauritanians:
Racial and ethnic minorities faced societal discrimination. Racial and cultural
tension and discrimination arose from the geographic and cultural divides between
Moor and Black African. The Moors were divided among numerous ethno-linguistic
tribal and clan groups and further distinguished racially as either White Moor or
Black Moor, although it often was difficult to distinguish between the two by skin
color. White Moor tribes and clans, many of whom were dark-skinned after centuries
of intermarriage with Berbers and sub-Saharan African groups, dominated positions
in government and business. . . . Concentrated in the south, the Halpulaar (the largest
non-Moor group), the Wolof, and the Soninke ethnic groups were underrepresented
in the military and security sectors.
Joint Appendix (“J.A.”) at 173 (U.S. Dep’t of State 2005 Country Report on Human Rights
Practices: Mauritania at 12).
2
In a revised statement attached to a supplemental I-589 filed on November 11, 2005,
Soumare stated that he, his younger sister, father, and brother were deported in 1989. However, in
his testimony before the IJ, Soumare indicated that it was his two sisters and father who were
deported along with him.
2
Mauritania to visit his father and was able to visit him at the National Hospital. Soumare said that
both of his father’s legs were broken, his face was bruised, and he was unable to see or hear the
family. His father died on April 27, 1996.
In 1997, Soumare joined the Action for Change (“AC”) party after meeting with a friend of
his late father’s who was a senior member of the party. Soumare said that he joined the party
because he “did not want [his] father to have died in vain and . . . wanted to join the fight to change
the government and equal rights for black Mauritanians.” J.A. at 189 (Supp. I-589 Stmt. at 2).
Soumare worked in the youth section of the party, distributing flyers, holding meetings and working
to recruit young men. In 2002, the government of Mauritania banned the AC party.3 In 2003 or
2004, Soumare joined the Popular Progressive Alliance (“PPA”), which like the AC party was
headed by Messaoud Ould Boulkhair.
In his original asylum application (“I-589”) and an attached statement, in his supplemental
I-589 and an attached revised statement, and in his testimony before the IJ, Soumare described three
incidents that occurred upon his return to Mauritania. The first of these incidents took place in
November 2001, when Soumare went to local authorities in an effort to reclaim his family’s house.
On November 5, 2001, Soumare was told by three Moor clerks at the State Office of Estates that he
needed to bring his father’s death certificate and proof of relationship. When Soumare returned with
the required documents the following day, he was told that the house now belonged to a white
Mauritanian. One of the Moor clerks then called him a thief and began pushing him, and Soumare
3
Soon after joining the AC party in 1997, Soumare, who was trained as a telecommunications
technician, was referred by the AC party’s president, Messaoud Ould Boulkhair, to a job at the
telecommunications company A.F.R.I.T.E.L. Soumare worked as a crew chief at A.F.R.I.T.E.L.
until leaving Mauritania in July 2004.
3
began pushing back. The police soon arrived, arrested Soumare, and took him to a police station.
When he protested his innocence, according to Soumare, one of the officers said “Skout Kahlouch”
(“Shut up Negro”). J.A. at 189 (Supp. I-589 Stmt. at 2). The officers held Soumare for two days
during which he was beaten, slapped in the face, stripped of his clothes and doused with cold water,
and called “black.” J.A. at 109 (Hr’g Tr. at 34:1–19); J.A. at 189 (Supp. I-589 Stmt. at 2).4 He was
ultimately released after his brother-in-law, a Moor, spoke to police on his behalf.
The second of the incidents occurred on May 9, 2004. Two police officers came to
Soumare’s workplace at A.F.R.I.T.E.L. and took him to the police station.5 “When the chief got
there [he] grabbed me by the neck and told me that I was doing work for a banned party and that I
was still claiming that [the white Mauritanian’s] house belonged to my family. I swore that the
house belonged to my family. He then held me tightly by the back of my shirt, told me that he was
closely watching my every move and threw me out the door.” J.A. at 189 (Supp. I-589 Stmt. at 2).
In his testimony before the IJ, Soumare added details that he did not mention in his I-589 statement.
According to Soumare’s testimony, the chief of police also forced him to sign something, another
officer hit him in the stomach, and the chief threatened that he would “never see the sun anymore.”
J.A. at 119-20 (Hr’g Tr. at 44:17–45:15). According to Soumare, after this incident he began fearing
for his life. He subsequently applied for a visa at the U.S. Embassy, which was granted on July 6,
2004.
4
In his testimony before the IJ, but not in his I-589 statement, Soumare said that officers also
hit him in the stomach. J.A. at 109 (Hr’g Tr. at 34:16–17).
5
In his testimony before the IJ, Soumare stated that he was handcuffed and driven by the
police to the station. J.A. at 119 (Hr’g Tr. at 44:2–4). However, in his I-589 statement Soumare
stated that the police officers “asked me to follow them to their station where they kept me waiting
until 2 P.M.” J.A. at 189 (Supp. I-589 Stmt. at 2).
4
The third and final incident occurred on July 20, 2004, when Soumare returned from work
to find his sister crying after police dropped off a summons ordering him to appear at the police
station. Soumare testified that his sister believed the summons was related to his political activity
and told him that if he didn’t leave politics he “would end up like [his] father . . . arrested and
killed.” J.A. at 116-17 (Hr’g Tr. at 41:19–42:4). After hiding at his uncle’s house, Soumare left
Mauritania and traveled by land to Senegal before coming to the United States.
On August 2, 2004, Soumare was admitted to the United States on a nonimmigrant visitor
visa that expired on February 1, 2005. On February 3, 2005, Soumare submitted an application for
asylum, withholding of removal, and protection under the Convention Against Torture to the
Department of Homeland Security (“DHS”). On March 24, 2005, DHS began removal proceedings
against Soumare as an alien who has remained in the United States for a time longer than permitted.
The IJ held a merits hearing on March 15, 2006, at which Soumare and a longtime friend of the
family, Saidou Wane, testified. The IJ then entered an oral decision denying Soumare’s applications
for relief. First, the IJ found Soumare “not to be a fully credible witness.” J.A. at 25 (IJ Dec. at 11).
While acknowledging that Soumare’s “testimony was for the most part, detailed, internally
consistent and consistent with the asylum application and his statements,” the IJ noted several
discrepancies between Soumare’s testimony and his written statements that in the “aggregate” gave
him “concern about the overall credibility of the respondent, at least on key points.” Id. The IJ cited
the following inconsistencies:
• Soumare testified that in 1989, when his family was forcibly removed to Senegal,
his father and his two sisters were with him. However, his written statement
indicated that a brother, a sister, and his father were with him.
5
• Soumare testified that he saw his father only one time at the hospital after
returning to Mauritania in 1996. However, in his written statement Soumare said
that he was able to see his father every week from the time of the first hospital
visit until his father’s death.
• Soumare testified that he visited the housing authority on November 6, 2001.
However, according to the IJ, Soumare’s written statement indicated that this
visit was on November 5, 2001.6
• Soumare testified that after his arrest on November 6, 2001, he was forced to
strip to his underwear and cold water was thrown on him. However, in his
written statement he indicated that he was stripped naked.
• Soumare testified that water was thrown on him each night of the two days he
was held in 2001. Soumare’s written statement, however, mentioned water being
thrown on him only once, the morning after his arrest, rather than at night.
• Soumare testified that during his 2001 arrest he was hit in the stomach. His
written statement did not indicate that he was hit in the stomach.
• Soumare testified that when he was arrested at his workplace on May 9, 2004, he
was handcuffed, put in the car, and driven to the police station. However,
Soumare’s written statement indicated that police asked him to follow them to
the police station, where he was kept waiting until 2 p.m.
• Soumare testified that an officer punched him in the stomach causing him to fall
to the floor during his detention in 2004. However, his written statement did not
mention being punched in the stomach during the 2004 detention.
In his analysis of past persecution, the IJ looked only to the 2001 and 2004 incidents and not
the 1989 deportation because Soumare “returned voluntarily to Mauritania [in 1996], living and
working in Mauritania for approximately eight years, at . . . a well paying job.” J.A. at 29 (IJ Dec.
at 15). The IJ first concluded that the 2001 incident was “not supported by credible testimony.” Id.
6
The IJ erred in finding an inconsistency on this point. Soumare’s statements clearly
indicated that he first visited the housing authority on November 5, 2001, but was then told that he
needed to bring his father’s death certificate and proof of relationship. He then returned the
following day, November 6, at which time the incident leading to his arrest occurred. Consistent
with these statements, Soumare testified before the IJ that he was arrested on November 6, 2001.
6
In the alternative, the IJ stated that the 2001 incident did not appear to rise to the level of persecution
based on one of the protected grounds, because it occurred following Soumare’s arrest for a
“physical altercation between himself and housing authority officials.” J.A. at 30 (IJ Dec. at 16).
Next, the IJ found that the 2004 incident was also not supported by credible testimony. Specifically,
the IJ cited discrepancies between Soumare’s testimony and his written statement on the details of
how he was taken into custody. Finally, the IJ found that the corroborating evidence was not
sufficient to establish Soumare’s claim of past persecution. Among other things, the IJ explained
that Soumare should have supplied a statement from his sister who was a witness to many of these
events. The IJ also found it “odd” that the summons that Soumare received on July 20, 2004,
apparently required him to appear at 10 a.m. on that same day. J.A. at 33 (IJ Dec. at 19).
Next, the IJ found that Soumare did not establish that he had a well-founded fear of future
persecution. The IJ noted that black Mauritanians, including Soninkes, have held positions in the
Mauritanian government in recent years, that there was no evidence that members of the political
party to which Soumare belonged were currently persecuted, and that a State Department report
indicated that the government that took power after the 2005 coup had released numerous political
prisoners.
Finally, the IJ denied withholding of removal and protection under the Convention Against
Torture. Because Soumare had failed to show eligibility for asylum, the IJ concluded that Soumare
had necessarily failed to meet the higher burden for withholding of removal. The IJ also denied
relief under the Convention Against Torture, finding no evidence in the record that Soumare would
be tortured if returned to Mauritania and noting that Soumare’s past treatment did not appear to rise
to the level of torture.
7
Soumare appealed to the BIA, which affirmed the IJ’s decision on October 22, 2007. The
BIA found that the IJ’s “adverse credibility finding, which was based on inconsistencies involving
matters such as the nature, circumstances, and severity of the harm which the respondent allegedly
suffered, is supported by the record.” J.A. at 6 (BIA Dec. at 1). Citing the absence of credible
testimony, the BIA concluded that Soumare did not adequately demonstrate past persecution or a
well-founded fear of future persecution. In sum, the BIA stated that “[i]nasmuch as we are in
agreement with the Immigration Judge’s decision, we affirm his decision based upon and for the
reasons set forth therein.” J.A. at 7 (BIA Dec. at 2). Finally, the BIA rejected Soumare’s claim on
appeal that his due-process rights had been violated because the IJ entered a “partial adverse
credibility finding” that was not supported by the record, and because the record contained numerous
“indiscernibles” that prevented adequate appellate review. The BIA explained that the “the elements
noted by the Immigration Judge in support of the ‘partial’ adverse credibility finding are sufficient
to constitute an adverse credibility finding for this proceeding.” Id.
Soumare timely filed this petition for review, arguing, among other things, that any
discrepancies between his written statement and his testimony do not go to the heart of the matter.
Soumare also argues, albeit perfunctorily, that his due-process rights were violated because the IJ
denied asylum based on a “partially” adverse credibility determination. Soumare Br. at 22. Finally,
citing the numerous “indiscernible” notations in the record, Soumare suggests that the record may
be inadequate for appellate review.
8
II. ANALYSIS
A. Asylum Claim
The Attorney General may grant asylum to a “refugee,” defined as a person “who is unable
or unwilling to return to” his country “because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). In order to establish refugee status, an applicant must show
either past persecution or a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b). “The
testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration,
but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8
U.S.C. § 1158(b)(1)(B)(ii). “‘[W]here it is reasonable to expect corroborating evidence for certain
alleged facts pertaining to the specifics of an applicant’s claim, such evidence should be provided.
. . . The absence of such corroborating evidence can lead to a finding that an applicant has failed to
meet her burden of proof.’” Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004) (quoting In re
S-M-J-, 21 I. & N. Dec. 722, 724-26 (B.I.A. 1997)).
We review adverse credibility findings under the following standard:
Credibility determinations are considered findings of fact, and are reviewed
under the substantial evidence standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir.
2004). This is a deferential standard: A reviewing court should not reverse “simply
because it is convinced that it would have decided the case differently.” Klawitter
v. INS, 970 F.2d 149, 151-52 (6th Cir. 1992) (internal citations omitted). While an
adverse credibility finding is afforded substantial deference, the finding must be
supported by specific reasons. See Daneshvar v. Ashcroft, 355 F.3d 615, 623 n.7 (6th
Cir. 2004); Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir. 2002) (“The reasons must be
substantial and bear a legitimate nexus to the finding.”). An adverse credibility
finding must be based on issues that go to the heart of the applicant’s claim. They
“cannot be based on an irrelevant inconsistency.” Daneshvar, 355 F.3d at 619 n.2
9
(6th Cir. 2004). “If discrepancies ‘cannot be viewed as attempts by the applicant to
enhance his claims of persecution, they have no bearing on credibility.’” Id. at 623(quoting Shah v. INS, 220 F.3d 1062, 1068 (9th Cir. 2000)).
Sylla v. INS, 388 F.3d 924, 925-26 (6th Cir. 2004).7 “While it is true that irrelevant inconsistencies
cannot constitute the basis for an adverse credibility determination, discrepancies may be relevant
if they can be viewed as attempts by the applicant to enhance his claims of persecution.” Ndrecaj
v. Mukasey, 522 F.3d 667, 674-75 (6th Cir. 2008) (internal quotation marks and citations omitted).
When, as here, the BIA adopts the reasoning of the IJ’s opinion but makes additional comments, we
review the IJ’s decision but also consider the additional comments of the BIA. Elias v. Gonzales,
490 F.3d 444, 449 (6th Cir. 2007). Although several of the discrepancies identified by the IJ do not
go to the heart of the matter and cannot support an adverse credibility finding, we believe that the
discrepancies related to Soumare’s arrests in 2001 and 2004 do go to the heart of the matter and
support the conclusion of the IJ and BIA that Soumare is not credible.
First, Soumare testified before the IJ that he was punched in the stomach by police during
his detention in 2001 and again during his detention in 2004. However, Soumare’s I-589 statement
failed to mention this fact, even though it provided specific details about other mistreatment
allegedly suffered by Soumare during the 2001 and 2004 detentions. Because being hit in the
stomach would have been the most serious physical abuse suffered by Soumare during his detentions
in 2001 and 2004 and because Soumare’s claim of persecution depends largely on the abuse he
7
The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, amended the standard for
credibility determinations to provide that a trier of fact may make a credibility determination
“without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Amir v. Gonzales, 467 F.3d 921, 925 n.4 (6th
Cir. 2006). This change applies only to asylum applicants who file for relief on or after May 11,
2005. Because Soumare applied for asylum on February 3, 2005, the change does not apply, and the
adverse credibility finding must be based on issues that go to the heart of his claim.
10
suffered during those detentions, we cannot say that the IJ clearly erred in finding these omissions
to be substantial discrepancies that go to the heart of Soumare’s asylum claim. Although these
discrepancies are omissions rather than affirmative inconsistencies, these omissions are
“substantially related to [Soumare’s] asylum claim” and therefore may support an adverse credibility
determination. Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005). Second, Soumare provided
inconsistent accounts of the circumstances of his arrest in 2004. Whereas Soumare testified that
police handcuffed him and drove him to the police station, his written statement asserted that police
merely asked him to follow them to the station. Although there may be some conceivable
explanation for this discrepancy, a reasonable adjudicator could find that this is a significant
discrepancy that goes to the heart of the matter.
“While an adverse credibility finding alone will not defeat a claim for asylum, it will
undermine a claimant’s efforts to meet his burden of proof—particularly when the claimant
reasonably could have presented, but did not present, corroborating evidence to support the claim.”
Vuktilaj v. Mukasey, 277 F. App’x 545, 549 (6th Cir. 2008) (unpublished). The IJ found that
Soumare reasonably could have presented a statement from his sister, who was a witness to many
of the events to which Soumare testified. On the record before us, we cannot find support for the
IJ’s finding that a corroborating statement from Soumare’s sister was reasonably available. The
record does not show, for instance, whether Soumare has received supporting documents from
Mauritania in the mail or whether he has remained in contact with his sister or other family members
since arriving in the United States. See Dorosh, 398 F.3d at 383 (upholding corroboration
requirement where petitioner remained in contact with mother in country of origin but failed to
obtain affidavit from her); Vuktilaj, 277 F. App’x at 550 (upholding corroboration requirement where
11
petitioner had received documents from country of origin, had cousin who had visited country twice
since petitioner’s arrival in United States, and had obtained documents from that country after
arriving in United States).
In light of the IJ’s adverse credibility determination, however, we conclude that substantial
evidence supports the IJ’s finding that Soumare failed sufficiently to corroborate his claim. Soumare
submitted the testimony of a family friend and several documents, including identification cards, a
statement from the Secretary General of the Action for Change (“AC”) party concerning Soumare’s
participation in that group, his father’s death certificate, and a medical certificate documenting
treatment for the injuries he allegedly suffered during his detention in 2001. Although the IJ found
that the record “contain[ed] some useful corroboration on some points,” the IJ concluded that this
evidence was insufficient to establish Soumare’s claim. J.A. at 31 (IJ Dec. at 17). The statement
from the General Secretary of the AC party, dated July 8, 1998, stated that Soumare was often the
victim of arbitrary brutality and harassment from police and political officials because of his
involvement in the AC party. However, the IJ questioned the veracity of this document because,
according to Soumare’s own testimony, it was not until 2001 that he was subjected to mistreatment
by the police because of his political activities. The IJ did not question the authenticity of Soumare’s
father’s death certificate or of Soumare’s 2001 medical certificate, but found that each lacked
sufficient detail to meaningfully advance Soumare’s claim. The death certificate did not state the
cause of Soumare’s father’s death, and the medical certificate “did not contain any specific
information on the type of treatment [Soumare] was given or the type of mistreatment which le[d]
to the medical treatment.” J.A. at 32 (IJ Dec. at 18).
12
In sum, because the record does not compel us to reach a conclusion contrary to the IJ’s
adverse credibility finding, we must conclude that Soumare has not met his burden to prove
eligibility for asylum. Because we affirm the IJ’s findings regarding Soumare’s eligibility for
asylum, Soumare necessarily cannot meet the “more stringent standard” for establishing a claim of
withholding of removal. Liti, 411 F.3d at 641 (internal quotation marks omitted). Finally, because
no credible evidence in the record demonstrates that Soumare “‘more likely than not . . . would be
tortured if removed to” Mauritania, he also cannot establish entitlement to relief under the
Convention Against Torture. Id. (quoting 8 C.F.R. § 1208.16(c)(2)).
B. Due-Process Claim Regarding “Partial” Adverse Credibility Determination
In a section of his brief on appeal that otherwise addresses the IJ’s adverse credibility
determination, Soumare makes a cursory reference to a due-process violation. See Soumare Br. at
22 (“The Immigration Judge . . . violat[ed] . . . Petitioner’s Due Process rights when he made what
he characterized [as] a partially adverse credibility determination. A denial of asylum relief based
on a partially adverse credibility determination is a novel finding which is not supported by any
asylum law.”). Because this issue was raised in a cursory manner without any citation or
development of argument, we deem the issue waived. See United States v. Sandridge, 385 F.3d
1032, 1035 (6th Cir. 2004) (“Issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.” (internal quotation marks omitted)). In any
event, although the IJ found Soumare partially credible, with regard to petitioner’s crucial encounters
with Mauritanian authorities, the IJ found that Soumare’s testimony was fatally discrepant.
13
C. Adequacy of Record
Finally, Soumare alleges that the numerous “indiscernibles” in the transcript of his hearing
before the IJ render the record inadequate for appellate review. Soumare does not clearly articulate
a legal theory for his claim, but simply cites the statutory provision and regulations providing that
a complete record must be kept of removal proceedings. Soumare Br. at 35; see 8 U.S.C.
§ 1229a(b)(4)(C) (“[A] complete record shall be kept of all testimony and evidence produced at the
proceeding.”); 8 C.F.R. § 1003.5(a) (providing that, when there is an appeal, the IJ shall forward the
record to the BIA upon request); 8 C.F.R. § 1240.9 (providing that the hearing before the IJ shall
generally be recorded verbatim). Typically, however, such claims are raised as procedural-due-
process violations. See, e.g., Garza-Moreno v. Gonzales, 489 F.3d 239, 241-42 (6th Cir. 2007).
Accordingly, we assume that Soumare is asserting a due-process challenge based upon the
inadequacy of the record.
“We review de novo alleged due process violations in immigration proceedings.” Garza-
Moreno, 489 F.3d at 241. To succeed on a due process challenge to removal proceedings, the
petitioner must show both “error and substantial prejudice.” Id. (internal quotation marks omitted).
An error in the proceedings does not render the proceedings constitutionally defective unless the
error “might have led to a denial of justice.” Id. (internal quotation marks omitted). We previously
have expressed “‘concern that the government failed to meet its obligation [under 8 U.S.C.
§ 1229a(b)(4)(C)] to prepare a reasonably accurate and complete record of the removal hearing.’”
Garza-Moreno, 489 F.3d at 241 (quoting Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006)).
However, “a mere failure of transcription, by itself, does not rise to a due process violation.” Id.(internal quotation marks omitted). Instead, the petitioner must show “specific prejudice to his
14
ability to perfect an appeal.” Id. at 242 (internal quotation marks omitted). Soumare cites the large
number of “indiscernibles” in the hearing transcript, but he does not identify particular facts missing
from the transcript that would support his applications, nor does he point to a single argument that
he was unable to make before the BIA or this court because of the incomplete transcript. In sum,
because Soumare has not identified how the “indiscernibles” in the hearing transcript prejudiced his
ability to perfect an appeal, we conclude that Soumare has not demonstrated a due-process violation.8
III. CONCLUSION
For these reasons, we DENY the petition for review.
8
In the same section of his brief, Soumare contends that the IJ failed to make credibility
determinations as to all of the supporting evidence submitted by Soumare. Soumare does not
advance a distinct legal theory for this argument, and it appears to be a repackaged challenge to the
IJ’s adverse credibility determination. As explained above, the IJ’s adverse credibility finding is
supported by substantial evidence. Moreover, Soumare fails to identify any specific evidence that
the IJ allegedly disregarded. The IJ gave a detailed explanation of his adverse credibility finding
regarding the discrepancies between Soumare’s testimony and written statements. Similarly, the IJ
provided a detailed evaluation of the corroborating documentary evidence submitted by Soumare,
explaining the weight given to various documents and his reasons for concluding that this evidence
was insufficient to establish Soumare’s asylum claim.
15
TARNOW, District Judge, dissenting. I dissent, because I believe that the IJ’s adverse
credibility determination was not supported by substantial evidence, and because I remain convinced
that Soumare has shown that he suffered persecution in the past.
I. Adverse credibility finding
The IJ focused on minor discrepancies between the written statement and the hearing
testimony, which are not inexplicably inconsistent: the two are reconcilable.1 And because other
evidence corroborates Soumare’s testimony, any reasonable adjudicator would be compelled to find
that Soumare was credible. See Yu v. Ashcroft, 364 F.3d at 703 (in reviewing an adverse credibility
finding, courts reverse only if any reasonable adjudicator would be compelled to conclude to the
contrary).
A. 2001 Arrest
The first discrepancy is that Soumare testified that he was hit in the stomach during the 2001
arrest, but his written statement did not mention this fact. As the IJ explained, “his written statement
simply talked about being grabbed by the shirt and thrown out the door, and did not indicate that he
was struck in the stomach on that occasion, nor physically abused in any other way other than being
doused with the water.” J.A. at 27 (IJ Dec. at 13).
But the failure to mention the stomach punch in the statement is not an inconsistency:
Soumare (or his translator) could have just mistakenly omitted the stomach punch from his
statement. There is a difference between an omission and an irreconciliable inconsistency.
1
Because the discrepancies are reconcilable, I agree with the majority that we should decline
to grant petitioner’s alternative request that we remand due to the presence of “indiscernibles”
throughout the transcript of the hearing before the IJ. Although some of the failures in transcription
occur at important moments in the hearing, the transcript shows enough for me to realize that there
is no contradiction between the written statements and the hearing testimony.
16
Moreover, this is not an omission that, along with the other relevant omissions, is “significant
enough to support an adverse credibility determination.” Mece v. Gonzales, 415 F.3d 562, 573 (6th
Cir. 2005). This is so, because Soumare provided an examining doctor’s statement, which shows
that the petitioner had suffered “injuries due to violent treatment while in prison” after the 2001
arrest. See J.A. at 265. This doctor’s statement corroborates Soumare’s testimony that he was
punched. Thus, there is an independent reason to believe Soumare’s testimony, which minimizes
the significance of the difference between the asylum-application statement and the testimony.
Though the government regards the doctor’s note as merely a form medical statement, I reject
such a characterization. The statement is dated within a few days of Soumare’s 2001 arrest. There
is no basis for suspecting that such a contemporaneous statement, offered by a doctor affiliated with
the health ministry of the Mauritanian government, no less, is unreliable. And although the
statement does not specifically outline what petitioner’s injuries were, the fact that Soumare received
medical attention and that the doctor said that the injuries were “due to violent treatment while in
prison” speak to the seriousness of Soumare’s injuries.
One last point about the 2001 arrest. The remaining, relevant elements were consistently
rendered both in the written statement and in the testimony before the IJ. Both the statement and
Soumare’s testimony explain that Soumare was slapped in the face by the police chief. Both the
statement and testimony show that Soumare was attempting to reclaim his family home, the same
home that his father had tried to reclaim and for which his father was beaten so severely that he died
soon afterwards. The evidence compels the conclusion that it was not merely a housing dispute or
a disturbance of the peace that resulted in Soumare’s arrest. Rather, the record is infused with
evidence that the arrest and subsequent abuse occurred because Soumare, as a black Mauritanian,
17
was attempting to assert rights that government officials wanted to deny. Both the written statement
and the testimony indicate that Soumare was released only after the intervention of his brother-in-
law, a White Moor.
B. 2004 Arrest
The other two relevant discrepancies relate to Soumare’s 2004 arrest at his workplace. First,
the IJ noted that, as with the 2001 incident, Soumare testified to being hit in the stomach during this
incident, but did not mention this fact in his statement. Here again, this discrepancy does not mean
that the written statement and testimony are inconsistent. The discrepancy simply indicates that the
detail about the 2004 stomach punch was omitted. Soumare gave an explanation for this omission:
he thought that the translator wrote in the asylum-application statement all of the details Soumare
reported. See J.A. at 132 (IJ Hrg. at 57) (“I thought the person who was writing every detail.”). In
view of the internal consistency of most of Soumare’s testimony, acknowledged even by the IJ, as
well as the corroboration of the 2001 incident, a reasonable fact-finder would have to conclude that
missing details about Soumare’s physical treatment during the 2004 arrest do not give rise to the
conclusion that this omission is significant enough to support an adverse credibility determination.
Besides, the gist of both the written statement and the testimony is that the police barged into
Soumare’s workplace two and a half years after his 2001 arrest at the housing authority, angry that
petitioner worked for a banned political party, which agitated for the rights of black Mauritanians.
His written statement indicates that the police were still annoyed in 2004 at his attempts to reclaim
the family home from a White Moor. Given either of these reasons, the point is that Soumare was
arrested for his work asserting the rights due to himself or others as black Mauritanians. While the
detail about being punched in the stomach is omitted from the written statement’s narration of the
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2004 arrest, the key elements of the event are intact: that he was arrested on account of his race,
ethnicity, or political activity.
Second, the IJ noted a discrepancy between Soumare’s account of the circumstances of his
2004 arrest in his testimony and in his statement. Soumare testified that when police came to his
workplace on May 9, 2004, they handcuffed him, put him in the car, and then drove him to the police
station. However, in his written statement, Soumare said that the police simply asked him to follow
them to the police station, where he was kept waiting until 2 p.m. This difference in narration does
not present an inconsistency. It is entirely conceivable that the police approached Soumare, ordered
him to follow them to the station, and subsequently handcuffed him and drove him to the station.
There is no reason to presume an inconsistency between the written statement and Soumare’s
testimony.
In sum, given that omissions from the written statement are explainable or irrelevant, the IJ’s
factual determination — that Soumare was not credible — is not supported by substantial evidence.
Rather, petitioner’s testimony should have been credited.
As for petitioner’s failure to provide a corroborating statement from his sister, I agree with
the majority and would not find his failure to do so problematic. The question is not solely whether
corroborating evidence is reasonably available, but whether it is reasonably expected. Because I
believe that petitioner is credible and, in contrast to the majority’s view, has already been
corroborated by other evidence — such as the doctor’s statement, the July 2004 summons,2 his party-
2
The IJ found it odd that the summons was delivered on the day that Soumare was to appear.
We nor, we suspect, the IJ has any knowledge of police procedure in Mauritania. There is no reason
to disbelieve the authenticity of the summons.
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membership card, his father’s death certificate, his pay stub3 from AFRITEL, and the testimony of
his friend, Saidou Wane — a statement from Soumare’s sister was not necessary, especially where
such a statement would necessarily be of limited corroborative value, given that it would have been
generated solely for the purpose of benefitting her brother’s asylum claim.
II. Past Persecution
I agree that were Soumare’s testimony not to be credited, petitioner’s other evidence alone
— without testimony to put that other evidence in context — would not suffice to show that he
suffered past persecution. But because I believe that the adverse credibility finding was unsupported
by substantial evidence, the other evidence strengthens my belief that petitioner has shown that he
suffered past persecution due to the 2001 and 2004 arrests. I would adjudicate the merits of whether
Soumare suffered past persecution notwithstanding Pergega v. Gonzales, 417 F.3d 623, 630–31 (6th
Cir. 2005) (remanding to BIA after reversing adverse credibility determination), because the BIA in
Pergega based its decision “solely on [the asylum applicant’s] lack of credibility.” In our case, on
the contrary, the IJ did offer an alternative basis for finding that Soumare failed to meet his burden
of showing past persecution. In my opinion, we therefore already have administrative action in the
first instance for us to review on a substantial-evidence standard.
According to the IJ, even assuming all of Soumare’s testimony to be credible, the treatment
he described did not constitute persecution on account of one of the protected grounds under
8 U.S.C. § 1101(a)(42)(A). Discussing Soumare’s 2001 arrest and subsequent abuse by police, the
IJ suggested that the incident arose out of an altercation between Soumare and housing authority
3
The pay stub corroborates Soumare’s testimony that he held a well-paying job in
telecommunications. This bolsters the court’s conclusion that he fled Mauritania due to persecution,
not merely to seek a better economic life.
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officials rather than on account of a protected ground. I have already discussed why such an
interpretation of the 2001 arrest is contrary to the record. In his written statement, Soumare
emphasizes that he met with resistance on account of his race. Even as he was arrested in 2004,
some two and a half years later, the policeman cited Soumare’s claim to the family home as he
grabbed Soumare’s neck. This was not merely a property dispute.
Next, the IJ indicated that he did not believe that the treatment Soumare received during his
2001 arrest rose to the level of persecution. J.A. at 30 (IJ Dec. at 16). But being arrested and
physically harmed to a degree that warrants medical attention on account of one’s race is enough for
persecution.
III. Well-Founded Fear of Future Persecution
Had Soumare shown that he suffered past persecution, he would have been entitled to a
rebuttable presumption that he also has a well-founded fear of future persecution. Hernandez-
Barrera v. Ashcroft, 373 F.3d 9, 21 (1st Cir. 2004). He could also have attempted to independently
show that he has a well-founded fear of future persecution, apart from the presumption he is entitled
to. Id. Given the lapse in time since Soumare’s testimony before the IJ, it is not reasonable to say
whether Soumare has independently established a well-founded fear of future persecution. We do
not know, for instance, whether the government officials who threatened him with death, or other
officials with similar animus towards black Mauritanians or Soumare in particular on account of a
protected ground, are still in power, or whether continued political activity on behalf of black
Mauritanians would subject him to persecution. Accordingly, I only maintain that Soumare has
provisionally established his eligibility for asylum based on his demonstration of past persecution.
I would have remanded to the BIA and ultimately to a different IJ, for consideration in the first
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instance of whether the government can rebut the presumption that Soumare has a well-founded fear
of future persecution. Where an IJ has erroneously found that an applicant is not credible, the
appearance of fairness requires that the case be assigned to a new IJ on remand.
I note, though, the unpersuasiveness of many of the reasons that formed the basis for the IJ’s
conclusion that Soumare failed to show a well-reasoned fear of future persecution if he is removed
to Mauritania. For example, the IJ noted that black Mauritanians, including Soninkes, had
participated in the Mauritanian government in recent years. J.A. at 33 (IJ Dec. at 19). But some
parliamentary representation for black Mauritanians does not rebut Soumare’s experience,
particularly given the July 2004 summons, where the police threateningly warned Soumare’s sister
that he should “leave the politics . . . or . . . would end up like [his] father.” J.A. at 116 (IJ Hrg. at
41).
Though the IJ found no evidence in the record indicating that members of the political parties
in which Soumare has participated were currently being persecuted in Mauritania, J.A. at 33 (IJ Dec.
at 19), the AC party remained banned after the 2005 coup under the transitional government. J.A.
at 167 (U.S. Dep’t of State 2005 Country Report on Human Rights Practices: Mauritania at 6). And
the head of the PPA, to which Soumare most recently belonged, is the same person who led the AC
party.
Despite the IJ’s observation that “the new leader who took over after the bloodless coup in
2005 has released numerous political prisoners in that country,” J.A. at 33-34 (IJ Dec. at 19-20),
Soumare testified that “[m]y only security there, it was my brother-in-law, who was protecting me
most of the time. If he’s not around . . . they can come and take me, I would disappear in a minute.”
J.A. at 136–37 (IJ Hrg. at 61–62).
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I observe that, in order to establish a well-founded fear of future persecution, Soumare does
not need evidence showing that members of his ethnic group (Soninke) or black Mauritanians in
general or the party to which he belongs (PPA/APP) are targeted for persecution in Mauritania on
a widespread basis. Nor is the presumption of a well-founded fear of future persecution necessarily
rebutted by the fact that refugees from the 1989-91 crisis (in which Soumare’s family was deported)
continued to return to Mauritania from Senegal, with many refugees able to reclaim their original
homes and land. J.A. at 168 (U.S. Dep’t of State 2005 Country Report on Human Rights Practices:
Mauritania at 7). What matters is an examination, subjectively and objectively, of Soumare’s
situation. See Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir. 2004) (per curiam) (a “specific,
credible, immediate threat of death” on account of a protected ground can be “persecution” even if
only a single incident occurs), cited in Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005) (per
curiam); J.A. at 288 (Original I-589) (“I fear physical abuse by the national police because of my
past encounters with them and because I left without authorization. The authorities are still looking
for me in Nouakchott (Mauritania).”) (emphasis added).
In the end, though, I would leave it to the BIA and the IJ to consider whether the government
can rebut the presumption of a well-founded fear of future persecution.
Likewise, I would have remanded Soumare’s withholding-of-removal claims.
23