Nseera v. Ashcroft , 145 F. App'x 295 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 28, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
ANDREWS PADDY NSEERA,
Petitioner,
v. No. 04-9576
(No. A79 470 705)
ALBERTO R. GONZALES, *
(Petition for Review)
Respondent.
ORDER AND JUDGMENT **
Before HENRY, ANDERSON , and TYMKOVICH , 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.
*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
This order and judgment is not binding precedent, except under the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.
Mr. Nseera is a native of Uganda who entered the United States with a
nonimmigrant visa and applied for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture. Following a hearing, the
immigration judge (IJ) found that Mr. Nseera’s testimony was not credible and
that he had not met his burden of establishing that he qualified for asylum,
withholding of removal, or other relief. The Board of Immigration Appeals (BIA)
affirmed the IJ’s decision without opinion and Mr. Nseera petitioned this court
for review of the denial of asylum. Mr. Nseera argues that the IJ’s adverse
credibility finding was error because his “testimony was detailed and consistent
and supported by information in the U.S. State Department Country Report on
Uganda.” Pet’r Opening Br. at 1. Because the IJ’s adverse credibility finding
was supported by substantial evidence, we exercise our jurisdiction under
8 U.S.C. § 1252(a)(1) and deny Mr. Nseera’s petition for review.
BACKGROUND
When the BIA affirms a decision without opinion, the IJ’s decision
becomes the final agency determination, and it is the IJ’s decision that we review.
Tsegay v. Ashcroft, 386 F.3d 1347, 1352 (10th Cir. 2004). To qualify for asylum
an alien must prove he is a “refugee.” 8 U.S.C. § 1158(b)(1)(B). A refugee is:
any person who is outside any country of such person’s nationality
. . . and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country
because of persecution or a well-founded fear of persecution on
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account of race, religion, nationality, membership in a particular
social group, or political opinion.
Id. at § 1101(a)(42)(A). 1
Mr. Nseera claims he has a well-founded fear of persecution based on his
political opinion because he is a member of a Ugandan opposition party and was
twice imprisoned because of his membership. According to Mr. Nseera’s
testimony at the hearing, he was first arrested at a political rally in 1998 and
imprisoned in a military barracks for two weeks. This arrest merely strengthened
his conviction to oppose the government and his arrest was thereafter held up by
his party’s leadership as an example of the government’s misuse of power. His
second arrest also occurred at a political rally, only at this rally he was a
scheduled speaker. According to Mr. Nseera’s testimony, he was on the dais
waiting to be introduced when gunfire broke out. Mr. Nseera fell to the floor and
another person fell on top of him. Mr. Nseera thought he had been shot because
blood flowed past him on the floor and he feigned death until he realized that “the
whole place was filled with soldiers,” Admin. R. at 79. The soldiers arrested him
and took him to the same barracks as before, telling him ten people had been
1
If an alien can prove refugee status, he or she must then persuade the
Attorney General to exercise his discretion to grant relief. 8 U.S.C.
§ 1158(b)(1)(A); Batalova v. Ashcroft, 355 F.3d 1246, 1254 (10th Cir. 2004).
Here, the IJ found that Mr. Nseera had not established refugee status and denied
asylum on that basis, so no discretionary determination was required.
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killed but blaming the deaths on his party. During Mr. Nseera’s subsequent
ninety-day incarceration he was, among other mistreatments, beaten with rifle
butts; tortured by being stripped naked and having a cinder block suspended from
his penis by a rope; cut near his left eye with a bayonet; and stabbed in his thigh
with a bayonet. The torture caused Mr. Nseera to urinate and sneeze blood,
caused sores on his body, and rendered him unable to walk properly. The local
leader of the opposition party, a Dr. Kasozi, was finally able to secure his release
and transfer to a hospital. Mr. Nseera was hospitalized for three to four weeks,
undergoing stitches and a blood transfusion as a result of his injuries. He was
required to report to the police every two weeks during his hospital stay but
eventually escaped from the hospital and fled to his aunt’s house. His father
made arrangements for him to become involved with a traditional dance troupe
that was traveling to the United States and he practiced with the troop for a period
of time in order to perfect his ability to play the instruments used by the group.
He then accompanied the troupe from Uganda to a performance in Missouri and,
when the dance troupe left to return to Uganda, Mr. Nseera took a bus to Denver.
ANALYSIS
The IJ found Mr. Nseera’s hearing testimony regarding his torture to be not
credible because he had not mentioned the alleged torture in his asylum
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application. 2 This court has held that “[a]n IJ’s adverse credibility determination
may appropriately be based upon such factors as inconsistencies in the witness’
testimony, lack of sufficient detail or implausibility.” Elzour v. Ashcroft,
378 F.3d 1143, 1152 (10th Cir. 2004). Here, although the asylum application
completed by Mr. Nseera directed him to“[e]xplain in detail” the basis for his
asylum claim, Admin. R. at 230, he failed to even mention the most crucial
portion of his claim: his torture. When asked on his application for the reason he
was seeking asylum, Mr. Nseera wrote:
Due to political persecution. Abuse of my fun[d]amental rights by
the current Uganda[n] authorities. Twice detained at Makindye
military barracks due to my political beliefs. (See attached detailed
account[.])
Id. The detailed account alluded to is four pages in length and includes many
details describing the political situation in Uganda. It discusses Uganda’s leader,
Yoweri Museveni, his abuses of power, and his betrayal of former allies. It
discusses the goals of various opposition parties. It also discusses Mr. Nseera’s
fear that Museveni is seeking to build a dynasty, grooming first his brother as a
successor, and then his son to take power from his brother. Mr. Nseera complains
2
The IJ also found it implausible that, if such torture had actually occurred,
Mr. Nseera had not found a more expeditious means of fleeing Uganda than with
a traditional dance troupe. We need not discuss this basis for the IJ’s adverse
credibility determination because we hold the differences between Mr. Nseera’s
application and his testimony provide substantial evidence for that determination.
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that Museveni broke the law by sending his son to the Sandhurst military academy
in Britain and then assigning his son as commander of the presidential guard.
Although the statement makes general claims regarding Museveni’s use of
violence to silence opposition and states that “more and more members of [the
political party to which Mr. Nseera belongs] continue to perish at the hands of a
dictatorial regime in Uganda in the name of freedom and justice,” id. at 241, it
does not make any mention of Mr. Nseera himself being tortured. Instead, his
statement simply relates that he was in “military detentions on two occasions” and
that if it were not for the “quick intervention” of Dr. Kasozi, “most probably [he]
would not be here today.” Id.
An IJ’s credibility finding is a finding of fact. Elzour , 378 F.3d at 1150.
Under 8 U.S.C. § 1252(b)(4)(B), “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” We interpret this statute to call for review under the substantial
evidence test, under which the IJ’s finding will be upheld if “supported by
reasonable, substantial and probative evidence considering the record as a whole.”
Elzour , 378 F.3d at 1150. To reverse, the evidence must not only support the
conclusion that the IJ erred, but compel it. INS v. Elias-Zacarias , 502 U.S. 478,
481 n.1 (1992); accord Batalova , 355 F.3d at 1254 (holding that the IJ’s or BIA’s
credibility determinations are not questioned if they are substantially reasonable).
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This court has, however, joined “other circuits in requiring that an IJ generally
must give specific, cogent reasons for an adverse credibility finding.” Wiransane
v. Ashcroft , 366 F.3d 889, 897 (10th Cir. 2004) (quotation marks omitted).
Here, the IJ gave specific, cogent reasons for his adverse credibility finding
and we cannot say his adverse credibility determination fails to pass the
substantial evidence test. The IJ found that, although it was not unusual for an
applicant’s testimony to be more detailed than his application, it was not credible
that Mr. Nseera would not have even mentioned in his written statement the
horrible abuse he allegedly suffered. In the same vein, the IJ noted that although
Mr. Nseera’s written statement alleged he was released from detention due to the
“quick intervention” of Dr. Kasozi, Admin. R. at 241, he testified that he was
jailed the second time for three months. We note that when asked to state in
detail why he was seeking asylum, Mr. Nseera complained in his application
about general injustices such as Ugandan officials “siphoning every dime in the
treasury,” id. at 239, without mentioning government soldiers suspending a cinder
block from his penis and bayoneting him in the leg. Similarly, Mr. Nseera’s
written statement specifically complains that supporters of a different opposition
leader “have been slain in broad daylight,” id. at 240, but makes no mention of
the ten people of his party supposedly killed around, and possibly even on top of,
him at the political rally. Although Mr. Nseera states in his application that “[i]f
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I were forced to return to Uganda I am pretty convinced that [if I don’t] end up
languishing in Ugandan jails, there is a good chance of being executed,” id. at
232, the reason he gives in the final two sentences of his written statement for
seeking asylum is that he does “not wish to return to Uganda as long as
Museveni’s dictatorial regime still executes Ugandans at will, denies them their
fundamental rights, and continues to suppress all forms of political activities,” id.
at 241. Although Mr. Nseera was asked at the hearing to explain his failure to
complain about the purported torture in his application, and he testified that he
had considered discussing the torture, his only explanation for his failure to do so
was that “[he] thought maybe it is better to do it than to write it down,” id. at 106.
Consequently, we cannot say that any reasonable adjudicator would be
compelled to conclude that the IJ’s adverse credibility determination was error.
CONCLUSION
Therefore, we must affirm the IJ’s denial of asylum. As noted in the IJ’s
decision, Mr. Nseera presented no other evidence to corroborate his testimony.
He failed to present a membership card despite the fact that he was allegedly an
important member in his political party; he failed to present any newspaper
reports regarding the shooting and alleged deaths at the political rally where he
was arrested the second time; and he failed to present any hospital records from
his hospital stay. Without credible testimony or any other evidence Mr. Nseera
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cannot be said to have proven refugee status. Mr. Nseera’s petition for review is
DENIED.
Entered for the Court
Robert H. Henry
Circuit Judge
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