Oseitutu v. Holder

FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JACOB OSEI TUTU, No. 05-74027
Petitioner, Agency No. A096-229-257
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 1, 2010 **
Pasadena, California
Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.
Jacob Osei Tutu, a native and citizen of Ghana, petitions for review of a
decision by the Board of Immigration Appeals (BIA) affirming the decision of an
immigration judge (IJ) finding him not credible and denying his application for
asylum, withholding of removal, and relief under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(CAT). We have jurisdiction under 8 U.S.C. § 1252. Because the BIA adopted the
IJ’s decision as the final agency determination, we review the IJ’s decision
directly. See Mashiri v. Ashcroft, 383 F.3d 1112, 1118 (9th Cir. 2004). We review
for substantial evidence, and will reverse only if the evidence compels the contrary
conclusion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Though we
find substantial evidence does not support the IJ’s adverse credibility
determination, because Tutu did not establish a well founded fear of future
persecution, we deny the petition for review.
The IJ found Tutu incredible, citing three major inconsistencies in Tutu’s
testimony, two minor inconsistencies, and demeanor evidence. First, the IJ’s
citation of the general lack of detail in Tutu’s asylum application, without more, is
not substantial evidence necessary to support an adverse credibility finding. See
Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996). Second, because the IJ
failed to confront Tutu regarding conflicting accounts of his brothers’ deaths, this
inconsistency cannot support an adverse credibility finding. See Campos-Sanchez
v. INS, 164 F.3d 448, 450 (9th Cir. 1999). Third, because substantial evidence
does not support the IJ’s other reasons for finding Tutu incredible, supporting
documentation is not required. See Kaur v. Ashcroft, 379 F.3d 876, 890 (9th Cir.
2004).
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The two minor inconsistencies noted by the IJ cannot alone establish an
adverse credibility determination. See Mendoza Manimbao v. Ashcroft, 329 F.3d
655, 660 (9th Cir. 2003). The unspecific demeanor evidence cited by the IJ
similarly fails to support an adverse credibility determination. See Arulampalam v.
Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003).
When substantial evidence does not support an adverse credibility
determination, the petitioner may be deemed credible. See Shire v. Ashcroft, 388
F.3d 1288, 1299 (9th Cir. 2004). Here, the IJ also made an alternative finding that,
even if Tutu were credible, Tutu did not show a well founded fear of persecution
on a countrywide basis. We agree.
Tutu did not show that he would be persecuted by a group whom the
government was “unwilling or unable to control” on a country-wide basis.
Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000) (quoting Mgoian v.
INS, 184 F.3d 1029, 1036 (9th Cir. 1999)). There is no evidence in the record that
suggests that the government of Ghana would allow the people of Tutu’s
hometown to persecute him if he were to relocate within Ghana. Tutu’s testimony
establishes only that he would potentially be harmed if he were to return to his
home.
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Tutu failed to meet his burden of establishing eligibility for asylum and,
therefore, necessarily failed to satisfy the higher standard for withholding of
removal. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004). Because Tutu
based his CAT claim on the same evidence of possible harm as his asylum claim,
he has not met his burden of showing it is more likely than not he will be tortured
if he returns to Ghana. See Hasan v. Ashcroft, 380 F.3d 1114, 1122 (9th Cir.
2004); Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003); 8 C.F.R.
§ 1208.16(c)(2)
Finally, on appeal, Tutu claims that the BIA erred in adopting the IJ’s
decision, because the IJ was biased. Tutu did not raise this argument before the
BIA. Therefore, we do not have jurisdiction to review this argument as it is
unexhausted. See 8 U.S.C. § 1252(d)(1).
PETITION FOR REVIEW DENIED.
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