Saidu Kabba v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION SEP 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAIDU KABBA, No. 09-70915
Petitioner, Agency No. A079-570-244
v.
MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 2, 2010**
Seattle, Washington
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Petitioner Saidu Kabba (“Kabba”) seeks review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of asylum
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
on adverse credibility grounds.1 The IJ’s factual findings must be upheld unless the
evidence is such that “any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Kabba claims to be from Sierra Leone and asserts that in December 1999, his
home in Kabala was attacked by RUF rebels, both his parents were shot and killed in
front of him, and he and his siblings were held in a rebel camp for two months until
freed by pro-government ECOMOG forces. The IJ found Kabba not credible, and
identified a variety of credibility concerns, including: (1) Kabba’s partial photocopy
of a Sierra Leone passport appeared to have been written over and the IJ could not tell
if it was authentic; (2) a discrepancy in his date of entering the United States in his
testimony versus his application; (3) Kabba’s inability in testimony to recall the month
in which the attack occurred or the month when he left the rebel camp; (4) Kabba’s
inability to provide detail describing actions he or his family took in supporting
President Kabbah, which allegedly motivated the attack; (5) Kabba’s description of
the attack itself was vague; (6) Kabba’s asylum application did not mention injuries
Kabba claimed he personally sustained in the attack; (7) Kabba’s lack of knowledge
about Sierra Leone, including questions about geography, primary religion, and
1
Kabba’s asylum application was filed before May 11, 2005, and, thus, the
asylum, corroboration, and credibility provisions of the REAL ID Act do not apply
to this case.
2
primary language in the area Kabba claimed he was from; and (8) discrepancies
regarding an application for advance parole Kabba had filed, in which he sought to
attend the funeral of his mother in Gambia (although she allegedly was shot and killed
in front of him five years earlier).2 The BIA found no clear error and similarly noted
Kabba’s new claim of injury, his vague and non-responsive testimony, his lack of
basic knowledge regarding Sierra Leone, and his inconsistent testimony regarding the
advance parole application.
Kabba’s opening brief confronts only two of these concerns: the alleged
inconsistency between his application and testimony and his limited knowledge of
Sierra Leone. Although Kabba has a valid point that providing additional details not
contained in his asylum application is not necessarily inconsistent, see Aguilera-Cota
v. INS, 914 F.2d 1375, 1382 (9th Cir. 1990), an adverse credibility finding must be
upheld if even one of the proferred reasons goes to the heart of his claim and is
2
When asked about the parole application, Kabba offered at least three
different explanations, testifying first that he applied for parole because his younger
brother was sick, then that it was his sister who was sick, and finally, that his father
had two wives and it was the other wife who died, whom he also called mother. The
IJ noted that the advance parole problems did not bear on the persecution per se, but
did consider the discrepancies as bearing on Kabba’s overall credibility and the issue
of identity. It was not error for the IJ and BIA to consider these discrepancies because
they go to the heart of Kabba’s claim—calling into question the accuracy of his
testimony about the circumstances of his mother’s death, which was the very basis of
his asylum claim.
3
supported by substantial evidence. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).
Kabba utterly fails to address the significant inconsistencies in his testimony regarding
his advance parole application, inconsistencies that seriously call into question his
account of the attack on his home by RUF rebels, which allegedly resulted in his
mother’s death. Substantial evidence also supports the IJ’s and BIA’s credibility
concerns regarding Kabba’s vague and often non-responsive testimony about the
attack and its aftermath or the family’s political activities that allegedly motivated the
attack, issues Kabba also failed to address in his brief to this court.
PETITION DENIED.
4