Sarpong v. Holder, Jr. ( 2016 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1075
BERNICE SARPONG,
Petitioner,
v.
LORETTA E. LYNCH,*
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Selya, and Lipez,
Circuit Judges.
Olakunle J. Taiwo on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Anthony W. Norwood, Senior Litigation Counsel, Office of
Immigration Litigation, and Lisa Morinelli, Trial Attorney, Office
of Immigration Litigation, on brief for respondent.
May 26, 2015
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is substituted for former
Attorney General Eric H. Holder, Jr., as the respondent.
LIPEZ, Circuit Judge. Petitioner Bernice Sarpong, a
native and citizen of Ghana, seeks judicial review of the Board of
Immigration Appeals' ("BIA") dismissal of her appeal from an
Immigration Judge's ("IJ") denial of her applications for
withholding of removal and protection under the Convention Against
Torture ("CAT"). Concluding that the agency's decision is
supported by substantial evidence, we deny the petition.
I.
We briefly summarize petitioner's account, set forth the
procedural history of this petition for judicial review, and
describe the legal framework applicable to it. In 2001,
petitioner's pastor sent her, along with other church members, to
the villages surrounding the city of Kumasi to work with homeless
girls. While there, she counseled local girls to help them avoid
being drawn into prostitution or the drug trade. A local criminal
gang perceived this as a threat, and warned that petitioner would
be harmed if she continued to interfere with its prostitution and
drug business. When she did not relent, the gang began a series
of violent attacks and threats on petitioner, continuing from 2002
until she left Ghana in 2006. These included a violent beating in
January 2002, a kidnapping that April, and an attack that June in
which petitioner was gang raped and forcibly circumcised.
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Petitioner entered the United States lawfully in 2006,
but was charged with removability in 2009 based on overstaying her
non-immigrant visa. Conceding removability, and having missed the
deadline to apply for asylum, she applied for withholding of
removal pursuant to 8 U.S.C. § 1231(b)(3), and protection under
the CAT.
To succeed on either claim for relief, petitioner had to
establish a likelihood that she would be harmed if she returned to
Ghana.1 Specifically, with regard to withholding of removal,
petitioner had to show that her "life or freedom would be
threatened." Costa v. Holder, 733 F.3d 13, 16 (1st Cir. 2013)
(quoting 8 U.S.C. § 1231(b)(3)(A)). To prevail on her CAT claim,
she had the burden of showing that she would "more likely than not
. . . be tortured." Id. at 17.
After an evidentiary hearing, the IJ found petitioner's
testimony to be incredible based on inconsistencies between her
oral testimony and her written statement. The IJ also determined
that petitioner provided insufficient corroboration for her
1
Because we uphold the agency's determination that petitioner
failed to establish a likelihood of harm, her claims necessarily
fail, and we need not address the other elements of each claim.
See, e.g., Guerra-Marchorro v. Holder, 760 F.3d 126, 128 (1st Cir.
2014).
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account. The IJ accordingly denied petitioner's application for
relief. The BIA dismissed her appeal in a separate opinion.
Though it conducted its own analysis, the BIA agreed with the IJ
that petitioner's testimonial inconsistencies justified an adverse
credibility determination, and that she failed to provide
necessary corroboration.
Petitioner argues that the BIA erred in finding that she
failed to meet her burden to establish a likelihood of harm. She
asserts that any inconsistencies in her account were immaterial,
and that the BIA failed to consider the totality of the
circumstances as required by law.
Where, as here, the BIA "does not summarily adopt the
IJ's decision," Sou v. Gonzales, 450 F.3d 1, 6 (1st Cir. 2006), or
"defer[] to or adopt[] the IJ's reasons," Hernandez-Barrera v.
Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004), we review the BIA's
decision alone. See Halo v. Gonzales, 419 F.3d 15, 18-20 (1st
Cir. 2005). An independent decision by the BIA "is the final
administrative order reviewed by the court." Sou, 450 F.3d at 6.
We consider whether the agency's conclusions, including
its findings on credibility and the failure to provide
corroborating evidence, are supported by substantial evidence in
the administrative record. See Jianli Chen v. Holder, 703 F.3d
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17, 21 (1st Cir. 2012); Balachandran v. Holder, 566 F.3d 269, 273
(1st Cir. 2009); 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative
findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary."). We review
interpretations of law de novo, "but with some deference to the
agency's reasonable interpretation of statutes and regulations
that fall within its sphere of authority." Jianli Chen, 703 F.3d
at 21.
Applicants for withholding of removal, or protection
under the CAT, bear the burden of proving that they merit such
relief. Soeung v. Holder, 677 F.3d 484, 487 (1st Cir. 2012); 8
U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1208.16(b), (c)(2). An IJ may
grant relief based on the applicant's testimony alone, if it is
deemed credible. 8 C.F.R. § 1208.16(b), (c)(2); see Soeung, 677
F.3d at 487; 8 U.S.C. § 1229a(c)(4)(B). In evaluating credibility,
an IJ "[c]onsider[s] the totality of the circumstances, and all
relevant factors," and "may base a credibility determination on
the demeanor, candor, or responsiveness of the applicant . . . the
inherent plausibility of the applicant's . . . account, the
consistency between the applicant's . . . written and oral
statements . . . the internal consistency of each such statement
. . . or any other relevant factor." 8 U.S.C. § 1229a(c)(4)(C)
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(as amended by the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 302
(2005)).
Credible testimony is not always sufficient, however.
Even where an applicant's testimony is "otherwise credible," an IJ
may "determine[] that the applicant should provide" corroborating
evidence, or a "demonstrat[ion] that [she] does not have the
evidence and cannot reasonably obtain [it]." Id. § 1229a(c)(4)(B);
see Soeung, 677 F.3d at 488. Where an IJ explicitly finds that
"it was reasonable to expect the applicant to produce
corroboration" and "the applicant's failure to do so was not
adequately explained," an application for relief may be dismissed.
Soeung, 677 F.3d at 488; accord Chhay v. Mukasey, 540 F.3d 1, 6-7
(1st Cir. 2008). Such a finding is entitled to special deference
under the REAL ID Act. 8 U.S.C. § 1252(b)(4) ("No court shall
reverse a determination made by a trier of fact with respect to
the availability of corroborating evidence, as described in . . .
[§] 1229a(c)(4)(B) . . . unless the court finds, pursuant to
[§ 1252(b)(4)(B)], that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.").
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II.
A. Adverse Credibility Determination
The BIA points to discrepancies between petitioner's
written statement and her testimony about the kidnapping in April
2002. Petitioner wrote in her statement that she was kidnapped at
about midnight, driven to an "up market suburb" the next morning,
brought to meet the "boss" of the gang that evening, and left
beside a dirt road blindfolded and handcuffed all night before
being rescued. At the hearing, however, she testified that she
was kidnapped around 8 or 9 PM, blindfolded the entire time she
was in the car, brought to meet the boss in the morning, and
eventually released without a blindfold.
The BIA also noted that petitioner wrote in her statement
that her father had been killed by the same criminal gang that
attacked her, but at her hearing she testified that her family had
not been harmed.
These inconsistencies between petitioner's written
statement and hearing testimony, in the aggregate, provide
adequate support for an adverse credibility determination. See
id. § 1229a(c)(4)(C). We cannot say that "any reasonable
adjudicator would be compelled to conclude to the contrary." Id.
§ 1252(b)(4)(B). Further, we find no merit in petitioner's
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argument that the BIA failed to consider "the totality of the
circumstances, and all relevant factors" in judging her
credibility. Id. § 1229a(c)(4)(C). She points to no specific
factor weighing in her favor that was ignored, and we have found
none.
B. Failure of Corroboration
Petitioner offered little evidence beyond her own
written statement and testimony.2 She added a one-page statement
from her mother in support of her petition, but it was not made
part of the administrative record, and in any event it is so vague
that its value as corroboration would have been limited.3 Indeed,
nearly every key element of petitioner's story was undermined by
a lack of corroborating evidence where such evidence could have
reasonably been expected. For example, these alleged events are
central to her claim of likelihood of harm:
2
Specifically, she submitted copies of her passport, birth
certificate and marriage certificate, and background materials on
Ghana, including a State Department report on human rights
practices.
3
The statement affirms, in cursory fashion, that petitioner
preached in the slums of Kumasi and was threatened and raped by
the same gang that had murdered her father. Petitioner informed
the IJ of the existence of her mother's statement during the
hearing, but her own counsel explained that it was "not submitted"
because "[i]t was just faxed to us and it's not really too clear."
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• She suffered attacks at the hands of the gang,
including an attack on a church compound in January
and her kidnapping in April 2002, all in the
presence of witnesses.
• She was sexually assaulted in June 2002, after
which she informed the police, her doctors, her
pastor, and members of her family.
• She received threats throughout her time at the
University of Ghana, including men approaching her
roommates and leaving notes on her door and inside
her dorm room.
• She received hospital treatment after being beaten
in January 2002, and again after her brutal sexual
assault that June, and later visited her aunt in
the United States in order to seek treatment for
"insomnia, depression, ulcers, anxiety and
recurring suicidal thoughts."
Given the nature of these events, it would be reasonable
to expect her to present statements from witnesses such as church
members, police, doctors, her family, or her university roommates.
The same goes for documentary evidence, such as police reports,
copies of the threatening notes, or records of her medical
treatment in Ghana. See Raghunathan v. Holder, 604 F.3d 371, 380
(7th Cir. 2010) (finding no error where an IJ demanded an
explanation for the failure to provide medical records
corroborating petitioner's claim that he received treatment for
his injuries at a hospital); In re S-M-J-, 21 I. & N. Dec. 722,
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725 (BIA 1997) ("[A]n asylum applicant should provide documentary
support for material facts which are central to his or her claim
and easily subject to verification, such as . . . documentation of
medical treatment."). If records from Ghana were unavailable,
petitioner could have provided documentation from a physician in
the United States confirming that she suffered the injuries she
claims. No such corroboration was forthcoming, nor did petitioner
provide a satisfactory explanation of why none was reasonably
available.
Hence, the BIA reasonably determined that evidence
should have been provided to corroborate that these events actually
took place, and there is no basis for setting aside its judgment.
III.
The conclusions of the BIA are supported by substantial
evidence in the record. We may not disturb its reasonable
determination that petitioner failed to carry her burden to show
a likelihood of harm if she returned to Ghana. We therefore deny
the petition.
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