Zeinab El-Moussa v. Eric H. Holder, Jr. ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0213p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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ZEINAB JAMIL EL-MOUSSA,
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Petitioner,
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No. 08-3982
v.
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Respondent. -
ERIC H. HOLDER, JR., Attorney General,
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On Petition for Review of a Decision
of the Board of Immigration Appeals.
No. A96 419 706.
Argued: April 30, 2009
Decided and Filed: June 17, 2009
Before: KENNEDY, GIBBONS, and ROGERS, Circuit Judges.
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COUNSEL
ARGUED: Frank Gregory Becker, FRANK G. BECKER & ASSOCIATES, P.C.,
Southfield, Michigan, for Petitioner. Susan Bennett Green, U.S. DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Frank Gregory Becker,
FRANK G. BECKER & ASSOCIATES, P.C., Southfield, Michigan, for Petitioner. Susan
Bennett Green, U.S. DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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OPINION
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ROGERS, Circuit Judge. Zeinab El-Moussa petitions for review of a Board of
Immigration Appeals decision denying her application for asylum, withholding of removal,
and protection under the Convention Against Torture. El-Moussa asserts that her failed
marriage to a Lebanese imam, whom she met and married shortly after entering the United
States, and her subsequent marriage to a Christian, place her at risk of violence if she returns
to Lebanon. The Immigration Judge denied El-Moussa’s asylum claim because she did not
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apply for asylum within one year of entering the United States. Her claim does not fall under
one of the exceptions that would give this court jurisdiction to review a denial based on
untimeliness. El-Moussa does not qualify for relief on either of her other two claims because
the IJ’s determination that El-Moussa did not testify credibly is entitled to deference under
the standards set forth in the REAL ID Act of 2005.
I.
Zeinab El-Moussa, a native and citizen of Lebanon, entered the United States on
September 19, 2001, with a six-month tourist visa. Her stated reason for coming to the
United States was to care for her ailing mother, who has resided legally in this country since
1999. El-Moussa received two extensions, which allowed her to stay until March 18, 2003.
She did not leave the country when her extended visa expired. Instead, she remained in the
United States with no official status. INS served El-Moussa with a Notice to Appear on
December 6, 2004. After several initial hearings, El-Moussa appeared before an IJ on
November 17, 2005, and filed an application for withholding of removal and protection
under the Convention Against Torture. At that hearing, her attorney conceded that El-
Moussa was not eligible for asylum because she did not file her application within one year
of entering the United States.
El-Moussa explained in her application that, after entering the United States, she
married an imam named Haydar Jawad. This marriage, which took place under Islamic law
and has since been terminated under the same law, never became official under U.S. law
because Jawad was already married to another woman. El-Moussa listed various ways that
her ex-husband had abused her, including giving her drugs to cause her to miscarry,
threatening to have her killed if she returned to Lebanon, threatening to have her deported,
taking away her passport, and beating her. She stated in her application that she feared
returning to Lebanon because Jawad, who was a member of Hezbollah and a man of standing
in the Lebanese community, could easily have her killed there.
The merits hearing was scheduled for March 7, 2007, more than fifteen months later.
In the meantime, on February 19, 2007, El-Moussa filed an addendum to her application,
stating that changed circumstances both in Lebanon and in her personal situation made her
eligible for asylum. With regard to her personal situation, she reported that since the time
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of her divorce from Jawad, she had married a Christian man and given birth to two children.
According to El-Moussa, her marriage was a violation of Islamic law and placed her life in
danger should she return to Lebanon. El-Moussa’s testimony at the hearing ultimately led
the IJ to conclude that El-Moussa’s account lacked credibility and that El-Moussa’s fear of
persecution was based on her deteriorated relationship with her ex-husband rather than on
a protected ground. At the hearing, El-Moussa testified about several instances of abuse.
She recounted a time when her husband came to the Arabic school where she taught and
dragged her out of the classroom by her hair. El-Moussa also submitted a letter from a co-
worker who recounted learning about the incident from El-Moussa’s students, looking for
El-Moussa, and not finding her. El-Moussa testified in contrast that the co-worker did find
her after the beating and brought her back into a classroom to comfort her. El-Moussa
acknowledged that her co-worker’s account differed from her own, and said that fear
prevented her co-worker from testifying at the hearing.
El-Moussa also testified that at the time of this beating she was six weeks pregnant.
Later on the day of the beating, her husband gave her some medicine for abdominal pain
resulting from the beating. The medicine caused her to start bleeding. After the bleeding
continued for nine days, El-Moussa’s husband took her to a clinic. El-Moussa testified that
the nurse told her that, because of all the bleeding, the child could not be brought to term.
Instead, El-Moussa received an abortion. In apparent contradiction to El-Moussa’s
testimony, her medical records reflect a normal pregnancy and an elective abortion.
El-Moussa also testified about a civil lawsuit she pursued and won against Jawad.
The first time she mentioned the lawsuit was in the context of the poisoning/abortion
account, and the implication was that the suit somehow arose from that incident. El-Moussa
later gave more details about the lawsuit, saying that she was awarded $4,900 that Jawad had
stolen from her. The pleadings that El-Moussa filed in the civil lawsuit indicate that Jawad
induced her to marry him by promising to sponsor her for citizenship and to provide a home
for her. After the marriage, he asked her to give him $4,800 to rent a house, and she gave
him the money. Jawad did not keep either promise. Instead he abused and threatened El-
Moussa. The pleadings do not mention the poisoning/abortion incident. El-Moussa won a
$4,900 judgment against Jawad. Based on the documents from her civil case and El-
Moussa’s initial reticence to discuss the fact that the lawsuit was about money, the IJ
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concluded that El-Moussa’s marriage to Jawad had primarily been for the purpose of
obtaining citizenship.
After divorcing Jawad, El-Moussa met and married Wisam Halia, a native Iraqi and
naturalized U.S. citizen. Halia is a Christian; however, he and El-Moussa married under
Islamic law. Like El-Moussa’s previous marriage, this marriage is also unofficial because
Wisam’s divorce from another woman has been pending for three years. While El-Moussa
explained that the initial delay in finalizing the divorce occurred because Halia left the
country to serve as a contractor with the U.S. military, she was unable to explain why the
divorce had not been finalized in the year and a half since Halia’s return. El-Moussa
testified that she has since given birth to twins, the children of Halia. She did not present
official birth certificates for these children, although she did present documents issued by the
hospital.
El-Moussa testified that she fears reprisal in her own country because of Jawad’s
connections to Hezbollah and because she married and bore children to a Christian man. She
testified that Jawad had told others of his intent to harm her if she returned to Lebanon, but
that she believed she would be safe in the U.S. because of the rule of law. She also testified
that she fears Hezbollah will issue a fatwa against her because she has breached Islamic
tradition by marrying a Christian man. When specifically asked on cross-examination, she
testified that her siblings in Lebanon had warned her that people were looking for her in
Lebanon.
At the conclusion of the testimony, the IJ dismissed the translator, after asking
whether there was any objection, and hearing none. The IJ then heard closing arguments and
discussed procedural matters with El-Moussa’s attorney. Near the conclusion of El-
Moussa’s closing argument, the IJ asked the attorney to provide official versions of various
documents. Six weeks later, having received no additional documents, the IJ issued his
decision. The opinion was issued on April 19, 2007.
The IJ denied all relief. Several grounds supported the denial of asylum and
withholding of removal. First, the IJ barred El-Moussa’s asylum application as untimely.
The IJ found that no extraordinary circumstances excused the late filing. He also found that
general unrest in Lebanon and El-Moussa’s remarriage did not constitute changed
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circumstances, because neither circumstance materially affected her eligibility for asylum.
Further, the IJ found that El-Moussa’s account was not credible. In addition to noting the
inconsistencies stated above, the IJ also noted that El-Moussa testified that she had not seen
Jawad since her divorce, while her current husband testified that she had seen Jawad at his
deposition for her civil suit. The IJ also noted that El-Moussa did not say anything about a
warning from her siblings either in her asylum application or on direct examination, but
claimed for the first time on cross-examination that her siblings told her that people were
looking for her in Lebanon. Furthermore, El-Moussa failed to submit reasonably available
corroborating evidence, such as birth certificates for her children.
Six days after the opinion was issued, El-Moussa filed additional evidence and a
motion to reopen. The IJ issued an order denying the motion. The IJ noted that, although
the court had agreed to consider additional evidence, it had not given the petitioner any date
certain before which the opinion would not issue. The IJ therefore denied the motion
without considering the new evidence. However, the IJ went on to state that the new
evidence, even if considered, did not overcome El-Moussa’s general lack of credibility or
the court’s conclusions that any harm she feared was not due to a protected ground.
El Moussa appealed the denial of her claim to the Board. She also asserted bias by
the IJ, error in the allegedly premature dismissal of the translator, and prejudice-causing
errors in translation and transcription. The Board affirmed the IJ’s decision in its entirety,
noting that the record supported the IJ’s adverse credibility finding. Further, the Board
found no evidence that the IJ was biased or that the IJ erred by dismissing the translator at
the end of the testimony. The Board also determined that the transcript remained
understandable despite minor errors identified by El-Moussa. The Board concluded that any
translation errors had been adequately addressed on the record as they arose. Finally, the
Board affirmed the denial of the motion to reopen, concluding that the IJ did not err by
issuing the opinion before the supplemental evidence arrived. The Board noted that El-
Moussa was not prejudiced by the denial, as the evidence she submitted would not have
overcome the adverse credibility determination.
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II.
As an initial matter, this court does not have jurisdiction to review the IJ’s decision
that El-Moussa’s asylum application was untimely and that no changed circumstances
materially affecting her application have occurred. An alien who, like El-Moussa, fails to
file a timely application may still qualify for asylum if she demonstrates “the existence of
changed circumstances which materially affect [her] eligibility for asylum”; however, the
effectiveness of this demonstration is within the discretion of the administrator and is not
subject to review by this court. 8 U.S.C. § 1158(a)(2)(D), (3). The IJ rejected El-Moussa’s
claim of changed circumstances for several reasons. First, the IJ noted that the circumstance
giving rise to El-Moussa’s claim for protection was her divorce from Jawad and that she did
not demonstrate that she filed her application within a reasonable time after her divorce, as
8 C.F.R. § 1208.4(a)(4)(ii) requires her to do. The IJ also held that general unrest in
Lebanon, El-Moussa’s remarriage, and the birth of her children did not constitute changed
circumstances because they did not materially affect her eligibility for asylum. The Board
affirmed these conclusions.
Although this court has jurisdiction to review untimeliness decisions where the
petitioner raises constitutional claims or matters of statutory construction, it does not have
jurisdiction to review claims like El-Moussa’s that raise discretionary or factual questions.
Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). Although El-Moussa purports
to raise “due process” issues, her claim—that changed circumstances in her personal
situation make her eligible to apply for asylum and that the IJ failed to properly evaluate her
situation—is factual, not constitutional, for purposes of the statutory preclusion of review.
El-Moussa does not overcome the limits on this court’s jurisdiction merely by adverting to
“due process.”
III.
With respect to El-Moussa’s other claims, affirmance is required because of the
deference we owe to the IJ and the Board on the issue of credibility. El-Moussa cannot
demonstrate entitlement to withholding of removal or protection under the torture convention
because the evidence in this case does not compel reversal of the IJ’s adverse credibility
determination. The IJ identified six areas where El-Moussa’s testimony was inconsistent
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with either her asylum application, other documentary evidence in the record, or other
testimony. Although not every inconsistency identified by the IJ is beyond debate,
substantial evidence supports the IJ’s findings. For instance, El-Moussa’s testimony that she
went to the clinic because of persistent bleeding is inconsistent with the record of her pre-
operative examination, which reflects no abnormal bleeding or discharge. Likewise, while
the IJ could have regarded the conflicts between El-Moussa’s account of the school beating
and her co-worker’s account as mere differences in memory, the evidence does not compel
such a conclusion.
Another circumstance that raised the IJ’s suspicions about the credibility of the entire
application was the civil lawsuit El-Moussa filed against Jawad. El-Moussa initially
indicated that the lawsuit concerned Jawad’s physically abusive behavior. She later
elaborated that the lawsuit had to do with money he had taken from her. However, the
record of that lawsuit indicates that the lawsuit was partially motivated by Jawad’s failure
to follow through on a promise to help El-Moussa obtain citizenship. The IJ therefore found,
contrary to El-Moussa’s testimony at the immigration hearing, that El-Moussa entered into
the marriage with Jawad for the purpose of obtaining citizenship. The facts do not compel
a contrary conclusion.
Because the Board adopted the IJ’s decision in full before adding brief additional
analysis, we review the IJ’s decision directly while also considering the Board’s additional
analysis. Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir. 2005). The IJ denied relief and
the BIA upheld the decision based on the IJ’s finding that El-Moussa did not testify credibly.
We review the IJ’s credibility determination under the deferential “substantial evidence”
standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004). An administrative finding of
fact, such as the adverse credibility determination here, is “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” See 8 U.S.C. § 1252(b)(4)(A),
(B). Moreover, “a decision that an alien is not eligible for admission to the United States is
conclusive unless manifestly contrary to law.” Id. § 1252(b)(4)(C). While the IJ’s adverse
credibility determination can be questioned in some respects, the substantial evidence
supporting the IJ’s finding calls for denial of this petition.
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This case appears to be one of the first in which the stricter review provided by the
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, applies to credibility
determinations. The credibility standards of the Act apply to applications for asylum,
withholding of removal, or other relief from removal filed on or after May 11, 2005. Id. at
§ 101(h)(2), 119 Stat. at 305. Under the previous law of this circuit, an IJ could base an
adverse credibility determination only on “issues that [went] to the heart of the applicant’s
claim” and not on “irrelevant inconsistencies” or inconsistencies that could not be viewed
“as attempts by the applicant to enhance his claims of persecution.” Sylla v. I.N.S., 388 F.3d
924, 926 (6th Cir. 2004) (quotations and citations omitted). Under the REAL ID Act,
credibility determinations are based on the “totality of the circumstances” and take into
account “all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). These factors include:
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.
Id. (emphasis supplied) (asylum). The same credibility standard applies to claims for
asylum, withholding of removal, and for relief under the torture convention. See 8 U.S.C.
§ 1229a(c)(4)(C) (applying identical language to proceedings for relief from removal).
Under this new standard, the IJ’s adverse credibility determination would stand even
if this court would come to a different conclusion under prior law. Congress doubtless has
power to narrow our review this way. The IJ made several findings that El-Moussa’s
testimony contradicted her written application or the testimony of her corroborating
witnesses. These findings, which are supported by the record, entitle the IJ’s overall adverse
credibility determination to deference, regardless of whether the inconsistencies bear on the
heart of El-Moussa’s claim. This interpretation of the REAL ID Act’s credibility standard
is consistent with that of five other circuits that have considered the new standard in
published opinions. See Wang v. Holder, — F.3d —, 2009 WL 1519805, at *5-7 (5th Cir.
June 2, 2009); Krishnapillai v. Holder, 563 F.3d 606, 616-17 (7th Cir. 2009); Qun Lin v.
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Mukasey, 521 F.3d 22, 26-27 (1st Cir. 2008); Lin v. Mukasey, 534 F.3d 162, 165-68 (2nd
Cir. 2008); Chen v. U.S. Attorney General, 463 F.3d 1228, 1231-33 (11th Cir. 2006).
The IJ’s adverse credibility finding is fatal to all three of El-Moussa’s claims for
relief. El-Moussa’s argument that the Government did not present evidence to refute her
claims of persecution reveals a fundamental misunderstanding of the nature of the relief she
seeks. Applicants for asylum, withholding of removal, and protection under the torture
convention have an affirmative duty to demonstrate entitlement to each form of relief. An
IJ need not credit an applicant’s testimony or supporting evidence even in the absence of
refutation. For each claim here, El-Moussa bore a burden of proof that she could not meet
unless the court credited her testimony. The adverse credibility finding thus provides an
alternative ground for upholding the denial of asylum and a primary ground for denying the
other claims. To establish eligibility for asylum, El-Moussa needed to demonstrate a well-
founded fear of future persecution. Gilaj, 408 F.3d at 283. The standard to qualify for
withholding of removal is even higher, requiring El-Moussa to demonstrate a clear
probability that she would more likely than not be subject to persecution if she returned to
Lebanon. Almuhtaseb, 453 F.3d at 749. Protection under the torture convention is only
available to an alien who establishes that “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). The IJ’s
finding that El-Moussa did not testify credibly precludes her from meeting any of these
burdens of proof.
IV.
The Board correctly held that the IJ did not demonstrate bias against El-Moussa, that
the IJ did not commit reversible error by dismissing the translator at the end of the testimony,
and that El-Moussa was not prejudiced by any errors in translation or transcription. El-
Moussa’s claim of bias appears to stem from her misunderstanding of the burden of proof
that she faced at her removal hearing. For instance, she objects to the IJ’s decision not to
credit her testimony and the testimony of her corroborating witnesses, given that the
Government did not present contrary evidence. She also accuses the IJ of attempting to
subvert reality because he did not accept facts, such as the existence of her two children, for
which she failed to submit verified documentation. Because El-Moussa bore the burden of
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proof to establish her entitlement to each form of relief she sought, the Government was not
required to present evidence, nor was the IJ required to give El-Moussa the benefit of the
doubt.
With regard to the dismissal of the translator, El-Moussa’s attorney consented to the
dismissal and the only question which arose after the dismissal that might have called for
translation was resolved through documentary evidence. That issue was whether El-Moussa
had been fingerprinted, and El-Moussa’s attorney quickly located a record that resolved the
issue.
El-Moussa has not effectively argued the presence of defects in the transcript of her
removal hearing. El-Moussa fails to tell this court what the defects were, to explain or
document her arguments to the Board on this matter, or to say why the Board’s
determination was incorrect. “Issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived. It is not sufficient for a
party to mention a possible argument in [a] skeletal way, leaving the court to put flesh on its
bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (quotation and
alterations thereto omitted).
V.
For the foregoing reasons, the petition for relief is DENIED.