Aung Thu v. Eric H. Holder, Jr. ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1655
___________
Aung Si Thu, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
___________
Submitted: December 17, 2009
Filed: March 9, 2010
___________
Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
___________
RILEY, Circuit Judge.
Aung Si Thu (Thu), a native and citizen of Burma, petitions for review of an
order of the Board of Immigration Appeals (BIA) dismissing the appeal of the
immigration judge’s (IJ) denial of Thu’s applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). Thu argues
(1) the IJ erred in denying his application based on an adverse credibility
determination, and (2) the BIA erred in denying Thu’s motion to supplement the
record with additional evidence. We deny Thu’s petition.
I. BACKGROUND
Thu was born in 1976, in Rangoon, Burma. His father is of Bamar ethnicity,
and his mother is of Rakhine ethnicity. Thu suggests his application to a medical
school in Rangoon was denied because of his mother’s ethnicity. Thu attended a
Burmese university and studied first geology and then physics from April 1994
through December 1996. A student demonstration against the government erupted in
December 1996. Thu claims he was arrested for participating in the demonstration
and placed in a detention center. Thu reported military police interrogated him,
several times forced him to put his legs in ice water for more than an hour at a time,
sometimes subjected him to electric shocks, and made him kneel on shredded rock for
long periods of time, resulting in scars on both knees. Thu asserts he was released
from the detention center in December 1997, after signing a document which stated
that if Thu participated in future political activities, he and his parents would be
arrested and his parents would lose their jobs.
Thu came to the United States in August 2001 on an F-1 student visa to study
at Bemidji State University in Minnesota. He graduated in December 2004 and began
optional practical training at Walmart in Bemidji.1 Thu filed for asylum in November
2005. After filing for asylum, Thu moved to Minneapolis and became involved in the
United States Campaign for Burma. Thu participated in a videotaped demonstration
and appeared in a newspaper photograph which was sent to Burma, and he signed a
petition to the Burmese government requesting the release of political prisoners. Thu
claims, while he was in the United States, police went to his parents’ house in Burma
to inquire about Thu’s whereabouts.
On December 16, 2005, an asylum officer interviewed Thu. The asylum officer
found Thu’s testimony incredible because there were material inconsistencies within
1
See 8 C.F.R. § 214.2(f)(10) (“Practical training may be authorized to an F-1
student who has been lawfully enrolled on a full time basis, in a Service-approved
college, university, conservatory, or seminary for one full academic year.”).
-2-
Thu’s testimony, and between Thu’s testimony and other evidence in the record.
Specifically, the asylum officer noted Thu testified he was of Rakhine ethnicity, but
he listed his ethnicity as Burmese on his asylum application, and his ethnicity was
listed as Bamar on his national identity card. The asylum officer also pointed out, in
Thu’s asylum application, Thu claimed he had actively participated in a student group
in Burma and he was a current member of the group. However, during the interview,
Thu declared he was not actually a member of the student group, rather, Thu
explained, he meant to say he was a member of the student body. Based on these
inconsistencies, the asylum officer found Thu was not eligible for asylum.
Thu conceded removability. The IJ held hearings on Thu’s application on
March 15, 2006, October 30, 2006, and January 30, 2007. After hearing Thu’s
testimony and considering the evidence, the IJ found Thu removable and denied his
applications for asylum, withholding of removal, and CAT protection. The IJ found
“there are very serious issues of credibility.” First, the IJ observed Thu claimed he
had been detained for an entire year in Burma from December 1996 through
December 1997; yet, the Burmese government issued Thu a passport on June 26,
1997. The IJ found it difficult to believe the government would issue a passport to a
political detainee when, according to the State Department, the government “was very
rigorous in enforcing limits on travel by those who were viewed as political opponents
of the government.” The IJ further noted Thu’s passport received an additional stamp
on September 8, 1997, which permitted travel to Thailand, Malaysia, and Singapore.
The IJ also referenced the fact that Thu was able to obtain an addendum to his
passport in May 2000, permitting travel to additional countries, and in August 2004,
Thu was even able to obtain an extension of his passport from the Burmese Embassy
in Washington, D.C. The IJ found the passport issuance and continued extensions,
especially in light of the State Department’s report, contradicted Thu’s claims that the
Burmese government perceived him as a political opponent.
-3-
The IJ also found Thu’s claim of a one-year detention for participation in a
student demonstration was at odds with State Department materials, which indicated
Burma generally released students shortly after they were detained. The IJ noted Thu
had never been a formal member of a student group in Burma and had only recently
become involved with Burmese groups in the United States after he filed his
application for asylum. Finally, the IJ recognized “[t]he lack of objective
corroborating evidence,” noting the only corroborating evidence in the record of Thu’s
detention were letters from Thu’s parents and a friend. The IJ found Thu’s story of
a one-year detention incredible and held the adverse credibility determination was
dispositive of Thu’s asylum claim based on past persecution, and, because the IJ found
Thu did not have a well-founded fear of future persecution, the IJ denied Thu’s
application for asylum and withholding of removal. The IJ also denied Thu’s
application for CAT protection based on the adverse credibility determination.
The BIA agreed with the IJ’s adverse credibility determination and dismissed
Thu’s appeal of the denial of Thu’s applications for asylum, withholding of removal,
and CAT protection. Thu moved to supplement the record or, in the alternative, for
a remand to the IJ to consider additional documents. The BIA denied the motion,
finding the proffered documents did not specifically relate to Thu and would not have
altered the IJ’s determination.
II. DISCUSSION
A. Standard of Review
“We generally review the BIA’s decision as the final agency action, but where
‘the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning,
we review both decisions.’” Alanwoko v. Mukasey, 538 F.3d 908, 912 (8th Cir.
2008) (quoting Osonowo v. Mukasey, 521 F.3d 922, 926 (8th Cir. 2008)). “We
review the administrative findings of fact, including credibility determinations, under
a substantial evidence standard.” Manani v. Filip, 552 F.3d 894, 901 (8th Cir. 2009)
(citation omitted). “These findings ‘are conclusive unless any reasonable adjudicator
-4-
would be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
B. Adverse Credibility Determination
Thu maintains the IJ erred in finding Thu’s testimony was incredible and in
relying on this adverse credibility determination to find Thu failed to establish his
entitlement to asylum, withholding of removal, and CAT protection.
Considering the totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
consistency of each such statement, the consistency of such statements
with other evidence of record (including the reports of the Department
of State on country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency, inaccuracy,
or falsehood goes to the heart of the applicant’s claim, or any other
relevant factor. . . .
8 U.S.C. § 1158(b)(1)(B)(iii). “This court defers to an immigration judge’s credibility
finding where the finding is supported by a specific, cogent reason for disbelief.” Sow
v. Mukasey, 546 F.3d 953, 956 (8th Cir. 2008) (quoting Perinpanathan v. INS, 310
F.3d 594, 597 (8th Cir. 2002)).
In this case, the IJ was particularly troubled by the apparent contradiction
between Thu’s alleged one-year detention and Thu’s receipt of a passport and
endorsements during the time he was allegedly incarcerated, especially in light of the
State Department reports showing Burma restricted travel for political opponents. The
IJ related other inconsistencies in Thu’s testimony and asylum application, which
collectively cast doubt on Thu’s credibility and ultimately his claims, and Thu gave
-5-
unconvincing reasons for the discrepancies. We conclude the IJ’s credibility finding
was supported by specific, cogent reasons for disbelief, and we cannot say “any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
C. Asylum, Withholding of Removal, and CAT Protection
Thu next claims the IJ erred in denying his applications for asylum, withholding
of removal, and CAT protection. To obtain asylum, Thu must either show he has
suffered past persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion or he has a well-founded fear of future
persecution on the basis of one of these grounds. See 8 C.F.R. § 1208.13(b). If an
applicant establishes past persecution, he is entitled to a rebuttable presumption of a
well-founded fear of future persecution. See id. § 1208.13(b)(1). In the absence of
past persecution, an applicant can demonstrate entitlement to asylum if he shows there
is a reasonable possibility he will experience persecution upon removal. See id. §
1208.13(b)(2).
“The standard for withholding of removal is a clear probability of persecution.”
Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008) (citation omitted). An alien may
not be removed if he can show his life or freedom would be threatened upon removal
because of his “race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A). An alien may demonstrate eligibility
for withholding of removal by demonstrating he suffered past persecution on account
of one of the five statutory grounds. See 8 C.F.R. § 1208.16(b)(1). An applicant who
fails to demonstrate past persecution may be eligible for withholding of removal if he
“can establish that it is more likely than not that he or she would be persecuted on
account of” one of the five grounds upon removal. Id. § 1208.16(b)(2). A threat of
future persecution can be established by demonstrating either an individualized risk
or a pattern of persecution of similarly situated persons based on one of the five
grounds. Id.
-6-
“An applicant seeking relief under the [CAT] bears the burden of establishing
‘it is more likely than not that he . . . would be tortured if removed to the proposed
country of removal.’” Guled, 515 F.3d at 881 (citing 8 C.F.R. § 1208.16(c)(2)). In
making this assessment, the following should be considered:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the country
of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights
within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country of
removal.
8 C.F.R. § 1208.16(c)(3).
The IJ found Thu’s adverse credibility determination was dispositive of Thu’s
past persecution asylum claim. The IJ similarly found Thu failed to establish a well-
founded fear of future persecution in Burma, citing Thu had only recently become
involved in political organizations in the United States. The IJ denied Thu’s
application for withholding of removal because Thu could not meet the higher burden
of proof. Finally, the IJ denied Thu’s CAT protection claim because Thu’s credibility
issues went to the core of Thu’s persecution claim, and he had not established it was
more likely than not Thu would be tortured or harmed if returned to Burma. The BIA
upheld the IJ’s findings on Thu’s entitlement to asylum, withholding of removal, and
CAT protection.
Reviewing the IJ’s and the BIA’s decisions under the deferential substantial
evidence standard, we conclude the evidence in the record was not so compelling that
no reasonable factfinder could fail to find the requisite fear of persecution. See
-7-
Alanwoko, 538 F.3d at 913. We uphold the BIA’s denial of Thu’s applications for
asylum, withholding of removal, and CAT protection.
D. Motion to Supplement the Record2
Lastly, we address Thu’s claim that the BIA erred in denying his motion to
supplement the record or, in the alternative, to remand the case to the IJ to consider
additional evidence. We review for an abuse of discretion the BIA’s denial of a
motion to supplement the record or to remand to the IJ. See Berte v. Ashcroft, 396
F.3d 993, 997 (8th Cir. 2005) (citation omitted). “[T]he BIA will remand only if the
evidence is ‘of such a nature that the Board is satisfied that if proceedings before the
[IJ] were reopened, with all the attendant delays, the new evidence would likely
change the result in the case.’” Id. (quoting Matter of Coelho, 20 I. & N. Dec. 464,
473 (1992)).
Thu claims the BIA erred in denying his motion to supplement the record with
a document entitled “Open Schools Campaign.” That document discusses the fact
Burma’s universities were closed beginning in December 1996. However, as the IJ
noted, Thu submitted a letter from his university in Burma indicating Thu had been
enrolled during the 1996-1997 school year. Thu claims the new document may have
altered the IJ’s credibility assessment because the document clarified Thu had not
been enrolled in 1997. The BIA denied Thu’s motion, finding the document did not
relate specifically to Thu and would not have altered the IJ’s credibility assessment.
We conclude the BIA did not abuse its discretion. As the BIA observed, the IJ
was aware and accepted the fact that the 1996 “student demonstrations . . . resulted in
a long period during which the universities were closed in [Burma].” Moreover, the
IJ listed many reasons for questioning Thu’s credibility, but importantly, the IJ did not
2
On December 10, 2009, Thu filed an unsigned, unauthenticated document from
an unknown source. We grant respondent’s motion to strike this document.
-8-
list the letter from the university concerning Thu’s enrollment date. We agree with
the BIA that the Open Schools Campaign document would not have altered the IJ’s
decision.
III. CONCLUSION
Thu’s petition for review of the BIA’s decision is denied.
______________________________
-9-