Negussie F. Bussa v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2317
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Negussie Fedessa Bussa; Leiouwerk *
Tsegaye; Hawi Negussie Bussa; Alko *
Negussie Bussa, *
*
Petitioners, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
John Ashcroft, Attorney General *
of the United States of America, * [UNPUBLISHED]
*
Respondent. *
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Submitted: November 5, 2004
Filed: December 9, 2004
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Before MURPHY, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Ethiopian citizens Negussie Fedessa Bussa (Negussie) and his wife (Tsegaye)
and two daughters (collectively, the Bussas), petition for review of an order of the
Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ’s) denial
of asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). On appeal, the Bussas challenge the IJ’s adverse credibility determination,
argue that the BIA’s decision to affirm without opinion violated their due process
right, and assert that the IJ failed to consider the evidence relevant to granting CAT
relief.
After careful review of the record, we conclude that the IJ’s decision on the
Bussas’ asylum application is supported by substantial evidence on the record as a
whole. See Dominguez v. Ashcroft, 336 F.3d 678, 679-80 (8th Cir. 2003) (summary
affirmance by BIA adopts IJ’s decision which then becomes final agency
determination for purposes of judicial review); Feleke v. INS, 118 F.3d 594, 597-98
(8th Cir. 1997) (standard of review). Specifically, the IJ discredited Negussie’s
testimony because of inconsistencies between his testimony and an asylum
application he had filed in 1994, including significant omissions from the 1994
asylum application; the implausibility of some of his allegations; and the Bussas’ lack
of candor regarding Tsegaye’s ear problems, which petitioners linked to violence
inflicted on Tsegaye by government officers in Ethiopia. Because the IJ’s credibility
finding was supported by specific, cogent reasons for disbelief, we defer to the
finding. See Nyama v. Ashcroft, 357 F.3d 812, 817 (8th Cir. 2004) (per curiam)
(deference standard); Kondakova v. Ashcroft, 383 F.3d 792, 796 (8th Cir. 2004)
(inconsistencies or omissions that go to heart of asylum claim will support adverse
credibility determination); Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003)
(administrative arbiters may draw inferences based on common sense and logic, as
well as on personal experience and background knowledge). The Bussas’ request for
withholding of removal thus fails as well, see Kratchmarov v. Heston, 172 F.3d 551,
555 (8th Cir. 1999) (withholding-of-removal standard is more difficult to meet than
asylum standard), as does their due process challenge to the affirmance-without-
opinion procedure, see Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir. 2003)
(concluding affirmance without opinion of IJ’s decision does not violate alien’s due
process right).
We conclude, however, that without further fact-finding and analysis as to
whether the Bussas are more likely than not to suffer torture within the meaning of
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the CAT if returned to Ethiopia, see 8 C.F.R. § 208.16(c)(2) (2004), we are unable to
review the disposition of the Bussas’ CAT claim, see Zewdie v. Ashcroft, 381 F.3d
804, 806-10 (8th Cir. 2004) (remanding CAT claim and directing BIA to assess
evidence and “come to a reasoned conclusion based on a thorough analysis of the
evidence”); Sivakaran v. Ashcroft, 368 F.3d 1028, 1029 (8th Cir. 2004) (remanding
CAT claim for further fact-finding and analysis as to whether alien is more likely than
not to suffer torture within meaning of CAT); Habtemicael v. Ashcroft, 370 F.3d 774,
783 (8th Cir. 2004) (remanding CAT claim for further fact-finding because IJ’s brief
analysis was inadequate and immigration court is proper forum to make factual
determinations relevant to CAT claim).
Accordingly, we deny the petition with regard to the denial of asylum and
withholding of removal, but we grant the petition with regard to the denial of the
Bussas’ CAT claim and we remand for further proceedings consistent with this
opinion. We deny the Bussas’ motion to supplement the record. See
Ikenokwalu-White v. INS, 316 F.3d 798, 805 n.10 (8th Cir. 2003) (review of final
order of deportation is limited to administrative record).
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