Modou Hydra v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0703n.06
12-3612
FILED
UNITED STATES COURT OF APPEALS Jul 31, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
MODOU LAMIN HYDRA, )
)
Petitioner, )
) ON PETITION FOR REVIEW FROM A
v. ) FINAL ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
Before: DAUGHTREY, McKEAGUE, and GRIFFIN, Circuit Judges.
PER CURIAM. Petitioner Modou Lamin Hydra, a citizen of Sierra Leone, appeals
the Board of Immigration Appeal’s denial of his asylum application. The BIA found
significant omissions and inconsistencies between Hydra’s testimony and his asylum
application and, thus, found him to be not credible. The BIA further held that even if Hydra
had been credible, he failed to present evidence sufficient to show past persecution or a
well-founded fear of future persecution. For the reasons set out below, we deny the
petition for review of the BIA’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
Modou Hydra is a 36-year-old male citizen of Sierra Leone. He arrived in the United
States with false papers on April 10, 2003, after living in Gambia for a short time. Within
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the one-year statute of limitations, Hydra applied for asylum. In his original asylum
application, Hydra claimed that his uncle had been beaten and jailed for providing food to
the Revolutionary United Front (RUF), a rebel group at war with the Sierra Leonean
government from 1991 to 2002. Hydra also claimed that the government considered him
to be associated with the rebels because of his uncle’s actions, so he feared “severe
torture and maltreatment” if he returned to Sierra Leone. On the form, he indicated that
his asylum claim was “based on . . . [the] Torture Convention.” Hydra handwrote his
application and signed it. He did not indicate on the application whether anyone helped
him prepare it, although he would later claim that a nonprofit organization assisted him.
An asylum officer interviewed Hydra in June 2004. He held that Hydra failed to
“show[ ] there is a reasonable possibility of suffering the persecution he fears” because
Hydra did not allege governmental harm rising to the level of past persecution and because
country conditions had changed sufficiently after the end of the civil war to negate future
persecution concerns. Hydra subsequently conceded removability as charged and was
placed in removal proceedings.
Before Hydra’s removability hearing in 2006, he revised his asylum application.
Prepared with the help of counsel, this version clarified that his uncle’s support for the
rebels was forced, out of fear that he would be “robbed or killed by them if he did not join.”
Hydra related that he had seen his father and another uncle shot in government-RUF
crossfire and claimed that he suffered “bruises and scars” during the course of the fighting.
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Most importantly, in this application Hydra claimed for the first time that he was captured
by the rebels in 1998: “I was taken by rebel forces, along with many other young
men . . . . We were told that we were going to be trained as rebel fighters for an attack on
Freetown and that anyone that did not participate in the attack would be shot and killed.
I escaped this camp after two months of being held there and fled to Freetown.” Hydra
also clarified that he feared the government suspected that he was “a supporter of the
R.U.F. rebel forces” not because of his uncle’s involvement, but “because [his] name was
put in the R.U.F. record book when [Hydra] was seized by them in 1998.” Hydra also
revised his asylum claim to be predicated on political opinion and membership in a
particular social group, as well as sustaining his original Torture Convention claim.
On September 26, 2006, Hydra had a hearing before an immigration judge, who
denied Hydra relief on all grounds, including asylum, withholding of removal pursuant to
the INA, withholding of removal pursuant to the Convention Against Torture, and voluntary
departure (because Hydra entered the United States with false papers). Hydra was the
only witness at his hearing, although he provided letters from family and friends in Gambia
to support his testimony. The immigration judge recounted Hydra’s testimony, which
included further details about his uncle’s forced involvement in the RUF and his father’s
death. Hydra also offered details of his two-month capture by the RUF, including the
forced-labor conditions. He said that after he escaped from the camp, security forces
purportedly came looking for him at his uncle’s home, but when he was not there, they left.
Hydra then left for Gambia, where he stayed for most of 2001 through 2003, before coming
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to the United States. In February 2003, Hydra married a Gambian woman (his second
wife), who had political problems of her own because of her family’s association with the
United Democratic Party, an opposition group. Gambian officials jailed Hydra after they
came looking for his wife and Hydra was unable to tell the officials where she was. Hydra
consequently claims to believe “he would be killed if he was returned to Sierra Leone” and
that he also feared returning to Gambia, where “he was tortured and beaten.”
The immigration judge noted that Hydra “failed to mention many of these details in
his initial asylum application.” Finding that Hydra’s oral testimony “was not fully consistent
with his written application” and that he failed to “answer all questions sincerely, forthrightly
and truthfully,” the immigration judge held that he was not a credible witness. Hydra’s
explanation for his omissions – namely that his first asylum application was prepared
without the help of counsel – did not adequately explain the discrepancies. Hydra was
“inconsistent and unclear” on details about which the immigration judge would “expect him
to have an accurate memory,” such as when he was held by the rebels. The immigration
judge also noted inconsistencies between Hydra’s testimony and the letters filed in his
support, including discrepancies about why Hydra left Gambia and when he married his
wife.
The immigration judge further held that Hydra failed to meet “his burden of proof to
establish that he had suffered past persecution in Sierra Leone on account of his political
opinion or a political opinion imputed to him or any other protect[ed] ground.” Similarly,
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Hydra failed to meet his burden to show a well-founded fear of future persecution because
“a preponderance of evidence” shows “fundamentally changed country conditions in Sierra
Leone” after the end of the civil war in 2002.
Hydra appealed. The BIA returned the case to the immigration court because “the
tape containing the testimony of the hearing . . . [was] defective.” The BIA ordered the
immigration court to “take such steps as are necessary and appropriate to enable
preparation of a complete transcript of the proceedings including a new hearing, if
necessary.”
After conducting a new proceeding, a different immigration judge, Rodger Harris,
“adopt[ed] the previous Immigration Judge’s ruling and [certified] the record back to the
Board for further review.” Furthermore, “[b]ecause Respondent’s testimony on remand
was substantially, if not completely, identical to his previous testimony,” Judge Harris
“adopt[ed] the previous Immigration Judge’s adverse credibility determination.” As before,
the immigration judge found Hydra’s oral testimony to be inconsistent with his first asylum
application. On remand, Hydra gave additional testimony that a nonprofit organization
helped him prepare his first asylum application, which the immigration judge believed
undercut his argument that the significant omissions in it were a result of his inability to
properly “express himself.”
Further complicating Hydra’s claim, the original application included “details
regarding his uncle’s forced support of the RUF” and generalized descriptions of “forced
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recruitment of young boys by the RUF” without mentioning “his own forced recruitment and
detention.” Like the previous immigration judge, Judge Harris also considered the conflicts
between Hydra’s statements and the letters filed in his support, and the discrepancies
between his statements and what he told the asylum office. Additional discrepancies had
emerged during cross-examination about whether Hydra began to spend most of his time
in Gambia in 1998 or 2000. Judge Harris further found that Hydra failed to prove past
persecution and could not establish a reasonable fear of future persecution. Finally, the
immigration judge noted in passing that Hydra could properly be considered to have “firmly
resettled” in Gambia, making him ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A)(vi).
Thus, Judge Harris denied all of Hydra’s asylum and withholding claims.
The BIA affirmed the immigration judge’s holdings with respect to Hydra’s credibility
and asylum claims.1 It agreed with the immigration judge that Hydra’s omissions in his
original asylum application were “present in the record” and “go to the heart of” Hydra’s
claim. Because Hydra did not “adequately explain” the omissions on appeal, the BIA held
that the immigration judge did not commit clear error in finding Hydra not credible.
Similarly, the BIA agreed that Hydra had failed to show past persecution or a
reasonable fear of future persecution. It found that, even if Hydra had been credible,
Hydra could not show “more than a few isolated incidents of verbal harassment or
1
In his appeal to the BIA, Hydra waived the denial of his withholding of removal and
requests for protection under the Convention Against Torture.
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intimidation” by the government, which were insufficient to establish past persecution.
Hydra’s two-month detention by the RUF may have constituted persecution, but the BIA
found that Hydra failed to “establish a nexus between the alleged harm suffered or feared
by the RUF rebels and one of the protected grounds enumerated under the Act.” Finally,
the BIA held that even if Hydra had established past persecution, the “Department of
Homeland Security ha[d] met its burden to rebut the presumption of future persecution.”
Based on these holdings, the BIA declined to consider any other issue presented for
appeal, including the immigration judge’s firm resettlement finding. This appeal followed.
DISCUSSION
Because the BIA reviewed the immigration judge’s legal conclusions de novo, we
treat the BIA decision as the final agency action. Morgan v. Keisler, 507 F.3d 1053, 1057
(6th Cir. 2007). This circuit reviews factual findings by the BIA under a substantial
evidence standard, meaning that “we must sustain an administrative decision if that
determination is ‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” Sarr v. Gonzales, 485 F.3d 354, 359 (6th Cir. 2007)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). We will not “overturn a Board’s
factual determination” unless “‘the evidence not only supports [a contrary] conclusion, but
compels it.’” Id. at 360 (alteration in original) (quoting Elias-Zacarias, 502 U.S. at 481 n.1).
By contrast, “[q]uestions of law and constitutional questions are subject to de novo review.”
Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009).
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To gain asylum, an applicant must first qualify as a refugee. He must show that he
cannot return to his home 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); see 8 U.S.C. § 1158(a) & (b); Bah
v. Gonzales, 462 F.3d 637, 639 (6th Cir. 2006). “‘[R]esolution of any request for asylum
involves a two-step inquiry: first, whether the petitioner is a ‘refugee’ within the meaning of
the [Immigration and Nationality Act], and second, whether the petitioner merits a favorable
exercise of discretion by the Attorney General.’” Kaba v. Mukasey, 546 F.3d 741, 747 (6th
Cir. 2008) (alteration in original) (quoting Chen v. Gonzales, 447 F.3d 468, 472 (6th Cir.
2006)). “‘An applicant who has been found to have established . . . past persecution shall
also be presumed to have a well-founded fear of persecution on the basis of the original
claim,’ unless the immigration judge finds, by a preponderance of the evidence,
either . . . ‘a fundamental change in circumstances such that the applicant no longer has
a well-founded fear of persecution in the applicant’s country of nationality . . . or . . . [that
t]he applicant could avoid future persecution by relocating to another part of the applicant’s
country of nationality.” Id. at 748 (quoting 8 C.F.R. § 208.13(b)(1) & 8 C.F.R.
§ 208.13(b)(1)(i)).
The BIA and immigration judges found that Hydra was not a “refugee” because he
could not show past persecution and could not establish a well-founded fear of future
persecution. These findings were largely driven by their conclusion that Hydra was not a
credible witness. As with other findings of fact, “[c]redibility determinations . . . are
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reviewed under the substantial evidence standard.” Sylla v. I.N.S., 388 F.3d 924, 925 (6th
Cir. 2004). Because Hydra’s asylum application was filed before May 11, 2005, the
standards for determining credibility promulgated by the REAL ID Act of 2005, 8 U.S.C. §
1158(b)(1)(B)(iii), do not apply to his claim. See Kaba, 546 F.3d at 749 n.1. Using the
prior standard for credibility determinations, “the immigration judge’s conclusion must be
supported by specific reasons and must be based upon issues ‘that go to the heart of the
applicant’s claim.’” Id. at 749 (quoting Sylla, 388 F.3d at 926).
The immigration judge based his adverse credibility finding on omissions in Hydra’s
initial asylum application and inconsistencies between the application and Hydra’s
testimony and supporting affidavits. “Like affirmative inconsistencies, omissions may form
the basis of an adverse credibility determination, provided that they are substantially
related to the asylum claim.” Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005). However,
“this court exercises extra care in evaluating omissions from asylum applications.”
Shkabari v. Gonzales, 427 F.3d 324, 329 (6th Cir. 2005). As long as an asylum application
provides “generalized claims” upon which an applicant “elaborate[s]” in his hearing,
omissions of specific facts in an application will not be grounds for an adverse credibility
finding. Liti, 411 F.3d at 639; cf. Secaida-Rosales v. I.N.S., 331 F.3d 297, 308 (2d Cir.
2003) (“An applicant’s failure to list in his or her initial application facts that emerge later
in testimony will not automatically provide a sufficient basis for an adverse credibility
finding.”).
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Here, the BIA identified a number of inconsistencies and omissions in Hydra’s
testimony that collectively support an adverse credibility holding. Although some of the
alleged inconsistencies seem explainable, taken as a whole, they do not compel a contrary
result. See Vasha v. Gonzales, 410 F.3d 863, 870 (6th Cir. 2005) (cumulative small
inconsistencies may form basis of credibility holding even if some inconsistencies are
“unsupported by the record”).
First, Hydra’s original asylum application did not include his purported forced
recruitment by the RUF rebels in 1998. In his revised application, filed three years later,
Hydra mentioned this period of detention, and he testified about it during both of his
hearings. This claim is fundamental to Hydra’s claim of past persecution. Even if one were
to liberally construe Hydra’s first application, the closest he comes to discussing this
detention is saying that he was “accused of being a rebel.” Yet elsewhere on his first
application, he explains that he was falsely accused of RUF membership because the
government conflated his uncle’s actions with his own. Nothing in the first application
compels the conclusion that the BIA erred in considering this omission and finding that it
went to the heart of Hydra’s claim.
Secondly, and relatedly, because Hydra omitted any discussion of his time in the
rebel camp, he necessarily omitted any description of his treatment by the RUF. In his oral
testimony, for example, Hydra detailed a brutal beating by the RUF that left him with a
dislocated shoulder. This treatment was not mentioned in either his original or revised
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asylum application. Although it could be argued that this was merely a detail that
elaborated on the broad claims presented in his revised application, neither application
provided information about the RUF physically abusing Hydra directly. Being taken by
rebel forces arguably differs fundamentally from being physically abused. Thus BIA did
not clearly err in considering this omission substantially related to Hydra’s claim.
Third, the BIA noted that Hydra’s first application failed to “mention[ ] government
authorities in Sierra Leone targeted [Hydra] because of his imputed political involvement
and affiliation with the RUF rebels.” This finding is a closer call. In Hydra’s first application,
he repeatedly mentioned that he had been accused of being a rebel. Although the
application is far from clear, it unquestionably states three different times that Hydra was
“accused of being a rebel.” That said, Hydra’s first application seemingly indicated that the
government targeted him because he was associated with his uncle. The original
application does not mention that Hydra’s name was on a RUF list seized by the
government. An argument could be made that Hydra’s inclusion of only one reason the
government targeted him and not another should not be considered a material omission
as much as an over-generalization. However, nothing in the record compels us to overturn
the BIA’s findings, and we conclude that under the deferential standard of review we must
apply, the BIA’s credibility holding must be upheld.
Hydra blamed his limited English skills, his lack of counsel’s help in preparing his
first application, and the inadequate aid provided by a non-profit organization for these
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omissions. The BIA found none of these explanations availing. Instead, the BIA cited
Hydra’s admission that he handwrote his first application – showing he possessed at least
minimal English skills – and his failure to indicate on his application that he was aided in
its preparation to counter Hydra’s claim that his first application should be discounted.
Without any evidence in the record to support the contrary, it was not clearly erroneous for
the BIA to hold that Hydra failed to provide an adequate explanation for his omissions.
In addition to discounting Hydra’s testimony as not credible, the BIA found that
Hydra’s supporting affidavits “did not independently satisfy his burden.” Hydra presented
five letters from family and friends in Gambia to support his claim, but none of them
provided information about his past treatment by the RUF or the Sierra Leonean
government. Although the letters supported his claim of fear that the Sierra Leonean
government had his name on a list, that fact alone is insufficient to undergird Hydra’s entire
asylum claim.
Because we agree with the BIA’s ruling on Hydra’s credibility in connection with his
asylum claim, we find it unnecessary to discuss at length the alternative bases for its
decision to affirm the immigration court’s denial of relief.
CONCLUSION
For the reasons set out above, we DENY the petition for review.
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