Nassor Hemed Khamis v. Alberto Gonzales , 238 F. App'x 182 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 05-4448
Nassor Hemed Khamis,
Petitioner,
Petition for Review from the Board
of Immigration Appeals.
V.
Alberto Gonzales, Attorney General
of the United States of America, [UNPUBLISHED]
*i-i-i-i-i-i-él-i-fl-
Respondent.
Submitted: June 11, 2007
Filed: June 18, 2007
Before BYE, RILEY, and BENTON, Circuit Judges.
PER CURIAM.
Nassor Hemed Khamis (Khamis), a native and citizen of Tanzania, petitions this
court for review of the decision of the Board of Immigration Appeals (BIA), which
affirmed the decision of the Immigration Judge (1]) denying Khamis’s request for
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). We deny Kamis’s petition.
Khamis entered the United States as a visitor in November 1999 and overstayed
his visa without authorization from the Department of Homeland Security (DHS,
formerly the Immigration and Naturalization Service). In April 2001, Khamis applied
for asylum, withholding of removal, and protection under the CAT. At a hearing
before the I] on December 21, 2004, Khamis stated he would be persecuted if he
returned to Tanzania because of his political opinions and membership in the Civic
United Front (CUF) political party. After the hearing, the I] issued an oral decision
making adverse credibility findings with respect to Khamis’s claims. As a result, the
II (1) found Khamis’s application for asylum was untimely because Khamis had not
applied within one year of his arrival to the United States, and Khamis failed to show
material changes in Tanzania and Zanzibar (a Tanzanian archipelago) to support an
exception for Khamis’s untimely filing; and (2) denied all of Khamis’s other claims
for relief based primarily on Khamis’s lack of credibility. The IJ granted Khamis’s
request for voluntary departure.
Khamis appealed to the BIA. The BIA affirmed the IJ’s decision, finding the
IJ ’ s adverse credibility determination was not clearly erroneous. Specifically, the BIA
stated Khamis failed to meet his burden of proving he was entitled to withholding of
removal or relief under the CAT and reasoned the IJ’s adverse credibility
determination was also dispositive as to Khamis’s asylum claim, even if the claim
were timely.
We review the BIA’ s determination under the substantial evidence standard and
will reverse only if “it would not be possible for any reasonable fact-finder to come
to the conclusion reached by the administrator.” Menendez-Donis v. Ashcroft, 360
F.3d 915, 918 (8th Cir. 2004). An alien is eligible for asylum when he is a refugee
“who is unwilling or unable to return to his or her home country ‘because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” Celaj v.
Gonzales, 468 F.3d 1094, 1097 (8th Cir. 2006) (quoting 8 U.S.C. § 1101(a)(42)(A)).
An alien’s testimony, if credible, may be sufficient to sustain the alien’s burden of
establishing refiigee status. 8 C.F.R. § 208.13(a).
In this case, the I] discredited Khamis’s testimony based on specific, cogent
reasons. $9 W, 310 F.3d 594, 597 (8th Cir. 2002). A reasonable
fact finder could find Khamis was not credible based on inconsistencies in the record,
including, but not limited to: (1) in his asylum application, Khamis said the CUF was
unable to obtain a permit from the government for an October 6, 1999 demonstration,
but at the hearing, he stated a permit was not needed for such a demonstration;
(2) Khamis testified he had never been arrested, but Khamis then offered into
evidence a letter stating he had been arrested multiple times and tortured; (3) Khamis
claimed he filed for asylum, in part, because his wife had been raped, but his asylum
application made no mention of his wife’s alleged rape and the allegation was raised
belatedly (in fact, Khamis’s wife joined him in the United States for only a few
months and then she returned to Tanzania); and (4) Khamis declared he left Tanzania
because the police were looking for him as a result of his participation in the 1999
demonstration, yet Khamis obtained his visa to the United States, issued August 30,
1999, several months before the October 1999 demonstration. m Daiga v. INS, 183
F.3d 797, 798 (8th Cir. 1999) (per curiam) (upholding an adverse credibility finding
where the alien offered inconsistent testimony and submitted questionable
documents).
Because substantial, material evidence supports the I] ’ s and BIA” s findings and
conclusions, we conclude the BIA properly determined Khamis’s claim for asylum,
even if timely, would fail on the merits. Thus, the BIA properly affirmed the IJ’s
decision denying Khamis’ 5 claims for asylum, withholding of removal, and protection
under the CAT. E Bropleh v. Gonzales, 428 F.3d 772, 776 (8th Cir. 2005) (stating
inconsistent testimony and questionable documents taint an alien’s credibility on all
of his claims for relief).
For these reasons, we deny Khamis’s petition for review.