Mutale v. Ashcroft , 119 F. App'x 263 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 12 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
AGNES MUTALE,
Petitioner,
No. 03-9573
v. (No. A76-908-343)
(Petition for Review)
JOHN ASHCROFT,
Respondent.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. The parties are familiar with the facts
and we will not repeat them herein.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner seeks review of a decision of the Board of Immigration Appeals
(BIA) dismissing her appeal from the denial of her application for asylum,
withholding of removal, and relief under the Convention Against Torture. 1
We
exercise jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for
review.
Petitioner is a native and citizen of Uganda. She overstayed her visa to
remain in the United States, and requested asylum on the basis of alleged
persecution in her home country. She asserted that she had been married to a
legal advisor for the opposition Ugandan Democratic Party, and that the
government of Uganda had arrested and tortured her for political beliefs it
imputed to her on the basis of her marriage. Petitioner’s application for asylum
was denied. Petitioner appealed, and was granted a hearing before an
immigration judge (IJ) in January 2002. Petitioner, and Ivan Were, a member of
the UDP who has been granted asylum in this country, were witnesses in that
proceeding.
1
The formal name of the Convention Against Torture is the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The United States became a party
to the Convention Against Torture through the Foreign Affairs Reform and
Restructuring Act of 1998, Pub. L. No. 105- 277, § 2242, 112 Stat. 2681 (1998).
Elzour v. Ashcroft , 378 F.3d 1143, 1150 n.8 (10th Cir. 2004) (citing Batalova v.
Ashcroft , 355 F.3d 1246, 1248 n.2 (10th Cir. 2004)).
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At the hearing, petitioner suffered from what her attorney described as a
“nervous condition,” and she had difficulty expressing herself in English. The
IJ’s questions to petitioner were translated into her native language of Luganda,
and, when petitioner could not express her answers in English, the translator
interpreted petitioner’s answers from Luganda to English for her. The IJ found
her testimony to be contradictory and vague about dates and events.
The IJ issued an oral decision denying petitioner’s application for asylum,
withholding of removal, and relief under the Convention Against Torture. He
explained that petitioner had failed to carry both of two evidentiary burdens.
R. at 68. First, petitioner had failed to carry the evidentiary burden to establish
that she had a reasonable fear of political persecution if returned to her home
country. Because petitioner had argued that her fear of political persecution
rested on her marriage to a politically active dissident, the IJ held that she had to
provide documentary evidence of who her husband had been in Uganda and that
she had been married to him. Petitioner had not argued that such documentary
evidence was unavailable, and according to the IJ, if petitioner’s husband “really
was a campaign manager or a chief legal officer for a political party, there would
be plenty of evidence available to show it.” Id.Second, the IJ held that both petitioner and Ivan Were, a fellow Ugandan,
were not credible as witnesses. Id. The IJ found “numerous discrepancies”
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between petitioner’s written statements and her oral testimony and found Were’s
testimony not to be credible because the daughter who reportedly told him that her
father was missing was nearly an adult, and should have known more about the
circumstances surrounding her father’s disappearance. Id. at 69-70. Additionally,
the Ugandan Democratic Party should have been able to find out what had
happened to her father had her father been as high an official in the party as Were
claimed. Id. The BIA summarily affirmed the IJ’s decision without opinion.
In her petition for review, petitioner asserts that the BIA erred in denying
her asylum and withholding of removal because (1) the BIA committed reversible
error in rejecting evidence of petitioner’s marriage and her husband’s political
activities because the evidence that petitioner submitted should have been enough
to establish past persecution for purposes of asylum, withholding of removal, or
protection under the Convention Against Torture; (2) the BIA erred in finding that
petitioner was not a credible witness; (3) the BIA erred in relying on petitioner’s
failure to leave her home country immediately to support its finding that she was
not credible; and (4) the BIA erred in failing to consider Were’s testimony as
relevant to petitioner’s asylum claim.
When the BIA summarily affirms an IJ, we review the IJ’s decision as if it
were the BIA’s. Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003).
We do not weigh the evidence, nor do we evaluate the credibility of witnesses.
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Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004) (citing Woldemeskel v. INS ,
257 F.3d 1185, 1189 (10th Cir. 2001)). In addition, the BIA’s factual findings
“are conclusive unless the record demonstrates that any reasonable adjudicator
would be compelled to conclude to the contrary.” Tsevegmid , 336 F.3d at 1235(quotation omitted). Although an IJ must give “specific, cogent reasons” for his
decisions on credibility, Sviridov v. Ashcroft , 358 F.3d 722, 727 (10th Cir. 2004),
a finding that a witness is not credible is a finding of fact. Elzour v. Ashcroft ,
378 F.3d 1143, 1150 (10th Cir. 2004).
Asylum
Two steps are required for a grant of asylum: (1) the alien must establish
that he or she is a refugee under 8 U.S.C. § 1101(a)(42), and (2) the Attorney
General will then exercise his discretion to grant or deny asylum. Rezai v. INS ,
62 F.3d 1286, 1289 (10th Cir. 1995). “To establish refugee status, the alien must
prove either past ‘persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political
opinion.’” Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991) (quoting 8 U.S.C.
§ 1101(a)(42)). The Board’s factual determination whether the alien is a refugee
is reviewed for substantial evidence. Nguyen v. INS , 991 F.2d 621, 625 (10th Cir.
1993). The Attorney General’s discretionary decision whether to grant asylum is
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conclusive “unless manifestly contrary to law and an abuse of discretion.”
8 U.S.C. § 1252(b)(4)(D). Questions of law are reviewed de novo . Kapcia ,
944 F.2d at 705. “The alien bears the burden of proof in the deportation
proceedings.” Id. at 707. We are concerned here with the first step, whether
petitioner has established her status as a refugee, as defined by § 1101(a)(42).
We must uphold the Board’s determination that petitioner is not eligible for
asylum if the record considered as a whole contains reasonable, substantial, and
probative evidence to support that determination. INS v. Elias-Zacarias , 502 U.S.
478, 481 (1992). Reversal is appropriate only where the evidence would compel a
reasonable fact finder “to conclude that the requisite fear of persecution existed.”
Id. at 481 & n.1.
In this case, petitioner has not met her burden to establish that her fear of
persecution is well-founded. The IJ found as a matter of fact that neither
petitioner nor Were were credible witnesses, and neither witness supported his or
her testimony with documentation or objective pieces of evidence.
Here the IJ gave “specific, cogent reasons” for his determination of
credibility. Sviridov , 358 F.3d at 727.
Because we cannot weigh evidence, and we cannot evaluate the credibility
of witnesses, Yuk , 355 F.3d at 1233, we must conclude that the BIA’s factual
findings on the credibility of these witnesses “are conclusive.” Our review of the
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record does not compel us to hold otherwise. Tsevegmid , 336 F.3d at 1235. The
remainder of petitioner’s arguments do not address this determinative issue.
Petitioner bore the burden of proof in deportation proceedings, and she failed to
establish a credible well-founded fear of persecution. Kapcia , 944 F.2d at 707.
Withholding of deportation
Title 8 U.S.C. § 1253(h) provides that an alien shall not be deported if his
or her life or freedom would be threatened due to his or her “race, religion,
nationality, membership in a particular social group, or political opinion.” In this
case, because petitioner did not establish the lower standard for asylum–a
well-founded fear of persecution–she also failed to establish the higher standard
for withholding deportation–a clear probability of persecution. See Rezai , 62 F.3d
at 1289. We thus affirm the Board’s decision to deny withholding of deportation.
Convention Against Torture
The Convention Against Torture (CAT) provides another basis to withhold
removal. Pursuant to the CAT, an alien is entitled not to be removed to a country
if he or she can show that it is more likely than not that he or she would be
tortured if removed to that country. 8 C.F.R. § 208.16(c)(2), (4). A petitioner
must show that the persecution at issue would be so severe as to rise to the level
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of torture, but he or she need not show that the torture would be on account of a
protected classification. Elzour , 378 F.3d at 1150. Because petitioner in this case
has not credibly shown that she has established a well-founded fear of persecution
if removed, she cannot meet the CAT’s higher standard that she would be subject
to torture.
Conclusion
Because we accept the agency’s findings regarding the witnesses’
credibility to be conclusive, 8 U.S.C. § 1252(b)(4)(B), we DENY the petition
for review.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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