Varlee Kamara v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3233
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Varlee Kamara, *
*
Petitioner, *
*
v. * Petition for Review of an
* Order of the Board of
Alberto R. Gonzales, Attorney * Immigration Appeals.
General of the United States *
of America, * [UNPUBLISHED]
*
Respondent. *
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Submitted: April 18, 2006
Filed: May 15, 2006
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Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Varlee Kollre Mamadee Kamara, a native and citizen of Liberia, entered the
United States in January 2001 with a valid F-1 student visa. He never enrolled in
school, but applied for asylum in May 2001. The then-Immigration and
Naturalization Service began removal proceedings. Kamara conceded removability,
but renewed the asylum application, alternatively seeking withholding of removal,
protection under the Convention Against Torture, or voluntary departure. The
Immigration Judge ("IJ") denied relief. Kamara appealed the denial of his asylum
application to the Board of Immigration Appeals ("BIA"), which affirmed without
opinion. Kamara appeals. Having jurisdiction under 8 U.S.C. § 1252, this court
affirms.
Kamara asserts he fears persecution in Liberia because he is a Mandingo whose
family has historically supported anti-government forces. Kamara claims – but
offered no corroboration – that between 1991 and 2000, his father helped found and
lead three different rebel groups – the United Liberation Movement for Democracy
in Liberia, the All Liberian Coalition Party, and Liberians United for Reconciliation
and Democracy ("LURD") – all devoted to ousting the Charles Taylor government by
force. Kamara joined each of these groups, working most recently as a recruiter for
LURD in 1999 and 2000. He alleges that his association with these groups makes him
a target for execution in Liberia.
At the hearing, Kamara focused on two events. First, he claimed he and his
brother were detained, handcuffed, and beaten by Taylor security officers at a
checkpoint in July 2000. On cross-examination, Kamara testified that the officers
stabbed him with a bayonet, threatened to kill him, and left him handcuffed to his
brother in an abandoned house while awaiting further orders from their commander.
About 15 minutes later, Kamara and his brother escaped by vehicle to a village where
a local woman treated their injuries. When Kamara returned to his own village, his
father insisted he and his brother leave Liberia to study in the United States, because
he believed they were unsafe at home.
Second, Kamara testified that Taylor's security forces fatally shot his father on
the family coffee farm in February 2001 – after Kamara arrived in the United States.
Kamara stated he learned about the shooting in a letter from a friend, who reported
that approximately 20 security forces arrived at the farm to arrest his father. When his
father asked for an arrest warrant, the guards shot him, also killing Kamara's young
cousin. Kamara asserted that Taylor's forces were also searching for him, as friends
related through letters and telephone conversations that he would be executed if he
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returned to Liberia. In support, Kamara presented letters, a document from the
Liberian Justice Department corroborating his father's death, and a March 2003
Liberian newspaper article about his family's struggles with Taylor's security forces.
The IJ denied all claims for relief, because she disbelieved Kamara's testimony
and evidence. The IJ held that, even if Kamara was credible, he did not meet his
burden of proving past persecution or a well-founded fear of future persecution.
Specifically, the IJ found that country conditions have dramatically changed in Liberia
since Kamara left, because Taylor resigned from power and fled in exile to Nigeria in
2003. As Kamara prominently based his fears of persecution on the reign of the
Taylor government, the IJ determined that his concerns were no longer reasonable.
Kamara appealed the denial of asylum to the BIA, which summarily affirmed.
When the BIA affirms without opinion, this court reviews the decision of the IJ as the
final agency action. See Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir.
2003). This court examines the IJ's factual findings for substantial evidence, and will
reverse only if the petitioner's evidence is "so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992); Ruzi v. Gonzales, 441 F.3d 611, 614 (8th Cir. 2006). Moreover, this
court defers to the IJ's credibility determinations where "supported by a specific,
cogent reason for disbelief." Hassanein v. Ashcroft, 380 F.3d 324, 327 (8th Cir.
2004), quoting Perinpanathan v. Ashcroft, 310 F.3d 594, 597 (8th Cir. 2002).
The Attorney General has discretion to grant asylum to any refugee who is
unwilling or unable to return home because of "(1) past persecution or (2) 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),
1158(b)(1). To establish a well-founded fear of persecution, the petitioner need not
prove with mathematical certainty that he or she will face persecution if returned
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home. INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987). Still, the petitioner's fear
must be both subjectively and objectively reasonable, such that a reasonable person
in the petitioner's position would fear persecution on account of a statutorily-protected
ground if forced to depart. See Regalado-Garcia v. INS, 305 F.3d 784, 788 (8th Cir.
2002).
Kamara argues he suffered past persecution by Taylor's military forces,
evidenced by the July 2000 detention and beating at the security checkpoint. While
Kamara testified about this incident, he did not include it in his asylum application in
response to any question about past persecution. It also appears that he told the
asylum officer that he was only detained, not stabbed, beaten, or threatened with
death; the officer's interview notes discuss only a 15-minute detention. The IJ found
these omissions significant, forming the basis of the negative credibility finding. "An
omission alone is normally insufficient for an adverse credibility finding, but if it goes
to the 'heart of the asylum claim,' it does raise a credibility issue." Cao v. Gonzales,
442 F.3d 657, 661 (8th Cir. 2006), quoting Kondakova v. Ashcroft, 383 F.3d 792, 796
(8th Cir. 2004). See also Prokopenko v. Ashcroft, 372 F.3d 941, 945 (8th Cir. 2004).
Because the 2000 detention and (alleged) beating are central to Kamara's asylum
claim, this court agrees that the omissions are significant and defeat his claims of past
persecution.
Because Kamara did not prove past persecution, he does not receive the benefit
of a rebuttable presumption of future persecution if returned to Liberia. See Eta-Ndu,
411 F.3d at 983; 8 C.F.R. § 1208.13(b)(1)(i). He must establish by other direct,
credible evidence that he personally has a well-founded fear of persecution, which is
objectively reasonable. See Berte v. Ashcroft, 396 F.3d 993, 996 (8th Cir. 2005);
Shoaria v. Ashcroft, 377 F.3d 837, 844 (8th Cir. 2004). To meet this burden, Kamara
testified and presented letters about his father's February 2001 death, correspondence
from the Liberian Justice Department, and a March 2003 newspaper article about the
family's struggles with Taylor's security forces. Again, the IJ determined that this
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testimony and evidence lacked credibility. Importantly, the article (from The
Independent, a Liberian newspaper) did not report that Kamara's father was killed.
Rather, it stated that Taylor's security forces took him from the family coffee farm and
that the family did not know his current location. The article also reported that
Kamara and his brother fled Liberia after his father's disappearance in February 2001.
In fact, Kamara entered the United States before this incident, in January. The IJ
found that the newspaper article was fabricated, as the date appeared cut-and-pasted
onto the document. When a document is fabricated, "it goes to the entirety of the
[petitioner's] credibility on all of his claims for relief." Bropleh v. Gonzales, 428 F.3d
772, 776 (8th Cir. 2005).
The IJ also expressed suspicion about the letters Kamara presented from family
friends in Liberia. The letters had no envelopes, return addresses, or phone numbers,
and Kamara did not call either of two readily-available witnesses to testify to their
authenticity. Kamara did not have his brother or a local family friend corroborate any
of his testimony before the IJ. He admitted both were available, but stated he did not
know why they were needed at the hearing. As Kamara could not produce a death
certificate, or any other reliable, corroborating evidence of his father's death, the IJ
determined that his fears of future persecution were not credible. The IJ's credibility
findings are "'conclusive unless any reasonable adjudicator would be compelled to
conclude the contrary.'" Turay v. Ashcroft, 405 F.3d 663, 668-69 (8th Cir. 2005),
quoting Pilica v. Ashcroft, 388 F.3d 941, 952 (6th Cir. 2004).
Finally, the IJ held that, even if Kamara's fears were subjectively credible,
country conditions in Liberia have changed so that his fears are no longer objectively
reasonable. The IJ noted that, because Taylor resigned the presidency in August 2003
and fled to Nigeria, the more stable government in Liberia does not pose the same
threats as the Taylor regime. While Kamara reasserts that Taylor may still exert
influence from Nigeria, the IJ determined that his fears were no more than fears of the
general civil strife that affects all Liberians. This is not a basis for granting asylum.
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See Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839-40 (8th Cir. 2004), citing Lopez-
Zeron v. U.S. Dep't of Justice, INS, 8 F.3d 636, 638 (8th Cir. 1993).
The decision of the BIA is affirmed.
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