Begum v. Holder

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 30 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROZEENA BEGUM, No. 08-70629
Petitioner, Agency No. A077-539-901
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 16, 2012
San Francisco, California
Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
Rozeena Begum petitions for review of the January 31, 2008, order of the
Board of Immigration Appeals which affirmed the decision of the Immigration
Judge denying her applications for asylum, withholding of removal, and relief
under the Convention Against Torture. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The agency’s determinations are reviewed under the standard of substantial
evidence and must be upheld unless the evidence in the administrative record
compels a contrary result. Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.
2006); see also Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006) (citing INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). Because the BIA reviewed the IJ’s
decision for clear error and referenced illustrative “examples” from the IJ’s
decision, our review includes the decision of the IJ because it was incorporated by
the BIA. See Morgan v. Mukasey, 529 F.3d 1202, 1206 (9th Cir. 2008).
Some of the bases cited to support the adverse credibility determination are
questionable under the caselaw that applies in this pre-REAL ID Act case.
However, as long as one of the identified grounds underlying an adverse credibility
finding is supported by substantial evidence and goes to the heart of the claim of
persecution, we are bound to accept the negative credibility finding. Li v. Ashcroft,
378 F.3d 959, 964 (9th Cir. 2004).
Substantial evidence supported the IJ’s adverse credibility determination
based on the inconsistency in Begum’s statements as to who accompanied her to
report the March 1998 rape. See Pal v. INS, 204 F.3d 935, 938 (9th Cir. 2000). In
her declaration, Begum stated that her mother accompanied her to report the March
1998 rape. However, Begum testified that her father accompanied her to report the
2
March 1998 rape. That inconsistency was material and went to the heart of her
claim. Id. The IJ could fairly conclude that the identity of the parent who
accompanied Begum to report the rape was not a fact that would likely be forgotten
and that the inconsistency called into question whether the rape had actually
occurred. The adverse credibility determination, based on this inconsistency, was
supported by substantial evidence.
PETITION DENIED.
3
FILED
Begum v Holder 08-70629 JUL 30 2012
MOLLY C. DWYER, CLERK
Judge MURGUIA dissenting. U.S. COURT OF APPEALS
I respectfully dissent from my colleagues. I disagree that substantial
evidence supports the adverse credibility finding based on the discrepancy as to
who escorted Begum to report the March 1998 rape. If discrepancies “cannot be
viewed as attempts by the applicant to enhance [her] claims of persecution, [they]
have no bearing on her credibility.” Shah v. INS, 220 F.3d 1062, 1068 (9th Cir.
2000) (second alteration in original). The salient point for Begum’s claim of
persecution is that she was raped, not who accompanied her to the police station
days later. See Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir. 2003). Moreover,
Begum gave a plausible explanation for this inconsistency, which the IJ mentioned
only in passing, failing to suggest any reason she found it not credible. Guo v.
Ashcroft, 361 F.3d 1194, 1201 (9th Cir. 2004).
In the absence of this inconsistency, I would reverse the IJ’s adverse
credibility determination. The heart of Begum’s claim is fear for her safety in Fiji,
after Fijian soldiers repeatedly raped her on account of her political beliefs.
Begun’s inconsistencies with respect to persecution suffered by her father are
incidental to the heart of her claim, and cannot properly support an adverse
credibility determination. Wang, 341 F.3d at 1021-22. Furthermore, the IJ did not
provide specific, cogent reasons for her demeanor finding. See Arulampalam v.
Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003). Additionally, Begum’s description of
her attackers was not impermissibly vague, see Cordon-Garcia v. INS, 204 F.3d
985, 991 (9th Cir. 2000), and Begum’s credibility is not undermined by her
voluntary return to Fiji in 2001 to see her sick father, see Karouni v. Gonzales, 399
F.3d 1163, 1176 (9th Cir. 2005). Lastly, the IJ incorrectly found Begum not
credible for failing to provide evidence of her work for the Fiji Labor Party, despite
the fact that evidence located outside the United States is almost never easily
obtainable. See Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir. 2000).
Accordingly, I would grant the petition for review and remand to the BIA
for further proceedings.