Karim v. Garland ( 2023 )

Appellate Case: 22-9507 Document: 010110795816 Date Filed: 01/11/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 11, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
ABDALLAH KARIM,
Petitioner,
v. No. 22-9507
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges.
_________________________________
Abdallah Karim, a native and citizen of Ghana, petitions for review of a Board
of Immigration Appeals’ (BIA) decision affirming an immigration judge’s (IJ) denial
of asylum, restriction on removal, and protection under the Convention Against
Torture (CAT). The IJ denied relief after finding Mr. Karim’s testimony was not
credible. The BIA dismissed his appeal. Exercising jurisdiction under 8 U.S.C.
§ 1252(a)(1), we deny the petition for review. As explained below, the adverse
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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credibility finding is supported by substantial evidence revealing inconsistencies, not
only between Mr. Karim’s testimony and the documentary evidence, but also in his
explanations attempting to reconcile those discrepancies.
I
Mr. Karim entered the United States on August 16, 2011, and surrendered to
Customs and Border Protection (CBP) officers. The next day, he gave a sworn
statement, indicating he spoke English and understood he could be subject to civil
and criminal penalties for failing to tell the truth. Further, he swore his answers were
true and complete.
In his sworn statement, Mr. Karim indicated he is a Sunni Muslim who was
born in Ghana. He said he had four brothers and sisters and fled Ghana because he
was being threatened by a group called the “Land Guard.” Admin. R. at 286. He
stated the Land Guard wanted to kill him and they had tortured his brother.
The government charged Mr. Karim with being removable as a noncitizen who
lacked valid entry documents at the time of his application for admission to the
United States. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). He conceded the charge, but
applied for asylum, restriction on removal, and CAT relief. He claimed to fear harm
in Ghana based on his political opinion for exposing the Land Guard’s corrupt
activities.
During removal proceedings, Mr. Karim appeared before an IJ with counsel
and indicated his “best language” was English. Admin. R. at 76. However, he later
appeared for another hearing with counsel and requested an interpreter, indicating he
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spoke English but his “best language [was] Hausa,” id. at 90. Ultimately, the IJ
conducted Mr. Karim’s merits hearing through an interpreter, although at one point,
his counsel paused to remind him to speak in Hausa rather than English. Id. at 194.
During his merits hearing, Mr. Karim testified that the Land Guard is a group
in Ghana hired by local chiefs to fight over land that does not belong to them. He
first spoke out against the Land Guard in September 2010 at a “lorry park,” “where
taxis come and . . . transport people around [the] area[.]” Id. at 152. He twice spoke
at the lorry park, the second time before a crowd of forty to fifty people. The Land
Guard had been recruiting young men, telling them the Land Guard’s work was not
dangerous. But Mr. Karim told the men the Land Guard was lying to them and they
should resist their recruitment efforts. He told the crowd the Land Guard was
responsible for killing two police officers, and he reminded them that their Muslim
faith forbade the Land Guard’s activities.
Mr. Karim further testified that after his second speech at the lorry park, four
or five members of the Land Guard followed him as he walked home. They accused
him of exposing their activities, which they told him were none of his business. One
of the men struck Mr. Karim on the back of his right shoulder with a stick decorated
with metal. When he turned to confront the man, another man stabbed him in the
abdomen with a pocketknife. Mr. Karim screamed for help and fell unconscious. He
regained consciousness at a hospital and discovered his stab wound had been treated
and stitched. He submitted into evidence a hospital record documenting the stabbing.
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On cross-examination, the government questioned Mr. Karim about several
inconsistencies and omissions in his testimony. The government noted his testimony
that he was stabbed after giving a public speech about the Land Guard at a lorry park
differed from his hospital record, which indicated he reported being “attacked by [a]
mob at a mosque during a preaching session,” id. at 572. Mr. Karim explained that
he falsely told the hospital staff he was attacked at a mosque during a preaching
session because he knew the hospital gave more attention to “anything that involved
religious conflict or religious violence.” Id. at 215. He stated he wanted to ensure he
received the necessary medical attention and if he had told them he was attacked by a
mob on his way home, the hospital staff would start asking questions that could delay
treatment. The government pointed out, however, that an affidavit from Mr. Karim’s
friend, Ahmed Abubakar, indicated he had been attacked by a mob while preaching
about Islamic fundamentalism. See id.; see also id. at 574 (Abubakar aff., Apr. 3,
2012). Mr. Karim replied that his speech tried to relate the Land Guard’s activities to
Islamic fundamentalism. He further testified that if he had not told the hospital he
was attacked at a mosque, they might have denied him treatment. The IJ later asked
why he would have been concerned with getting treatment if his stab wound had
already been stitched, to which Mr. Karim replied he thought he might need
additional treatment.
The government also questioned why Mr. Karim’s sworn statement to the CBP
officer indicated he had four brothers and sisters, yet his amended asylum application
listed only two sisters. Mr. Karim explained he has two sisters, and he listed two
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extended family members as brothers. He identified his cousin, Suleman Karim, as a
brother because they are very close. The government asked which brother he claimed
had been tortured and why he omitted any mention of the alleged torture from his
direct testimony. Mr. Karim replied that he was referring to Suleman, whom his
mother had incorrectly told him had been tortured. He explained that “older folks
give narratives,” id. at 211, and “she was just trying to say all sort[s] of things to
me,” id. at 213. He testified that when he spoke to Suleman, however, Suleman
clarified that he had not been tortured, only threatened. On redirect, Mr. Karim’s
attorney asked what specifically his mother told him that made him think Suleman
had been tortured. Mr. Karim testified that she told him the Land Guard “came and
threatened your brother,” saying they would do to Suleman what they had done to
him, which he understood to mean “an attack.” Id. at 227.
Following the hearing, Mr. Karim submitted a second affidavit from his friend,
Ahmed Abubakar, and an affidavit from his cousin Suleman. These affidavits
ostensibly attempted to reconcile some of the discrepancies between Mr. Karim’s
testimony and the documentary evidence. Ahmed Abubakar’s second affidavit
indicated Mr. Karim “was attacked by an unknown mob/gang” while “he was
preaching at a small mosque at the . . . lorry station against Islamic Fundamentalism
and illegal activities of land guards.” Id. at 265 (Abubakar aff., Oct. 24, 2018).
Suleman’s affidavit indicated he attended Mr. Karim’s “public sermon” about “the
menace of land-guards” and “youth fleeing to join terrorist[] groups in neighboring
West African countries.” Id. at 268 (Suleman Karim aff., Aug. 28, 2018). It further
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indicated the public sermon was at a “lorry station” and “market square/mosque,” and
after Suleman left, he learned Mr. Karim had been “attacked by a section of angry
Land-guard.” Id.The IJ admitted these additional affidavits but found “[g]laring discrepancies”
between Mr. Karim’s testimony and the documentary evidence he provided to
substantiate “the central event of harm in his story.” Id. at 71. In particular, the IJ
pointed out the difference between, on one hand, Mr. Karim’s testimony that he had
been attacked and stabbed by four or five members of the Land Guard after speaking
out against them at the lorry park, and on the other hand, his hospital record, which
indicated he had been attacked by a mob while preaching at a mosque. The IJ
acknowledged Mr. Karim admitted lying to the hospital to obtain quicker, better
treatment. But the IJ found this explanation dubious because Ahmed Abubakar’s
first affidavit indicated Mr. Karim actually had been attacked by a mob or a gang
while preaching about Islamic fundamentalism. The IJ recognized Mr. Karim
attempted to reconcile the discrepancy by providing the additional affidavits from
Ahmed Abubakar and Suleman, but the IJ noted the additional affidavits were filed
after the hearing where the discrepancies were scrutinized. The IJ acknowledged it
was possible Mr. Karim’s speech about the Land Guard included religious
components, but the IJ questioned why he would not have simply said it included
religious components when confronted with the discrepancy between his testimony
and the medical record. Instead, the IJ observed, Mr. Karim testified that he
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fabricated the religious component to obtain faster, better treatment. The IJ found the
affidavits did not rehabilitate this conflicting explanation.
The IJ cited other inconsistences as well. The IJ questioned why Mr. Karim
testified that he fabricated the story about being attacked at a mosque to receive
treatment when he already had been treated. The IJ recognized he thought he might
need additional treatment, but the IJ found that explanation unpersuasive and did not
resolve the inconsistency with the additional affidavits, which indicated he had been
preaching, at least in part, about religion at a mosque.
The IJ also mentioned inconsistencies between Mr. Karim’s testimony and the
sworn statement he gave to the CBP officer. While Mr. Karim’s sworn statement
indicated his brother had been tortured, the IJ observed, Mr. Karim testified on
cross-examination that his cousin, not his brother, was threatened, not tortured. The
IJ acknowledged Mr. Karim’s explanations about referring to his cousin Suleman as
his brother and being misinformed by his mother that Suleman was tortured. But the
IJ found that, rather than clarify the discrepancies, Mr. Karim changed his testimony
on redirect by stating his mother told him Suleman had merely been threatened.
Based on these inconsistencies, the IJ found Mr. Karim was not credible and
determined the other evidence failed to satisfy the standards for asylum or restriction
on removal. Likewise, the IJ concluded Mr. Karim’s failure to present credible
evidence of torture precluded his CAT claim. Accordingly, the IJ denied relief and
ordered him removed to Ghana. The BIA upheld the adverse credibility finding,
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concluded the other evidence failed to satisfy the standards for relief, and dismissed
the appeal. Mr. Karim now seeks review.
II
A. Standards for Relief
To obtain asylum, an applicant must establish they are a “refugee” as defined
by 8 U.S.C. § 1101(a)(42), and then obtain a discretionary grant of relief. See
8 U.S.C. § 1158(b)(1)(A); Diallo v. Gonzales, 447 F.3d 1274, 1282 n.4 (10th Cir.
2006). “To obtain . . . restriction on removal, an applicant must show that his [or
her] ‘life or freedom would be threatened in the proposed country of removal because
of [their] race, religion, nationality, membership in a particular social group, or
political opinion.’” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008)
(brackets omitted) (quoting 8 U.S.C. § 1231(b)(3)(A)). And to obtain CAT relief, an
applicant must demonstrate “‘it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.’” Id. (quoting 8 C.F.R.
§ 1208.16(c)(2)). The burden of proof necessary to satisfy all three standards may be
satisfied by an applicant’s credible testimony alone. See 8 U.S.C. § 1158(b)(1)(B)(ii)
(asylum); id. § 1231(b)(3)(C) (restriction on removal); 8 C.F.R. § 1208.16(c)(2)
(CAT relief).
B. Standard of Review
“This court reviews the BIA’s legal determinations de novo and its factual
findings under a substantial-evidence standard.” Igiebor v. Barr, 981 F.3d 1123,
1131 (10th Cir. 2020) (brackets and internal quotation marks omitted). “Credibility
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determinations are factual findings . . . subject to the substantial evidence test.” Id. at
1132 (internal quotation marks omitted). The Supreme Court has instructed “that a
reviewing court must accept ‘administrative findings’ as ‘conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Garland v.
Ming Dai, 141 S. Ct. 1669, 1677 (2021) (quoting 8 U.S.C. § 1252(b)(4)(B)). “This is
a highly deferential standard.” Id. (internal quotation marks omitted). “Under this
standard, we do not weigh evidence or independently assess credibility; rather, even
if we disagree with the BIA’s conclusions, we will not reverse if they are supported
by substantial evidence and are substantially reasonable.” Htun v. Lynch, 818 F.3d
1111, 1119 (10th Cir. 2016) (brackets and internal quotation marks omitted).
Where, as here, the BIA issues an opinion by a single member affirming the IJ,
“we will not affirm on grounds raised in the IJ decision unless they are relied upon by
the BIA in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.
2006). “However, when seeking to understand the grounds provided by the BIA, we
are not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Id.C. Discussion
Based on the record before us, we cannot say any reasonable adjudicator
would be compelled to find Mr. Karim credible. We note Mr. Karim’s hospital
record appears to substantiate his allegation that he was stabbed for making some sort
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of public pronouncement.1 Nonetheless, the BIA determined there was no clear error
in the IJ’s adverse credibility finding, which was predicated on specific, cogent
reasons. Prime among them, the BIA recognized, was that his testimony that he was
attacked after speaking out against the Land Guard at the lorry park was inconsistent
with his hospital record, which indicated he reported being attacked by a mob while
preaching at a mosque. This was a permissible basis for discounting Mr. Karim’s
credibility under the applicable legal standards. See Niang v. Gonzales, 422 F.3d
1187, 1193, 1201 (10th Cir. 2005) (upholding adverse credibility finding based in
part on discrepancy between noncitizen’s testimony regarding her age when she was
attacked and a letter from her doctor indicating noncitizen reported she was a
different age at the time she was attacked). Although Mr. Karim tried to explain he
fabricated the story about being attacked while preaching at a mosque, the BIA
recognized this explanation conflicted with Ahmed Abubakar’s first affidavit, which
indicated Mr. Karim actually had been preaching about Islamic fundamentalism.
This is substantial evidence supporting the adverse credibility determination. See
Igiebor, 981 F.3d at 1135 (concluding that adverse credibility finding was supported
by substantial evidence because noncitizen’s explanation “only created further
questions as to his honesty”).
1
The government does not specifically dispute Mr. Karim was beaten and
stabbed, but it does argue that because he was found “to be not credible, his
testimony and statements in the record should be treated as allegations.” Resp. Br. at
2. The government’s argument does not question the hospital record, which indicates
he was treated for a stab wound sustained while making a public pronouncement.
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Still, Mr. Karim maintains he was speaking about both the Land Guard and
religion when he was attacked, which he says is corroborated by the additional
post-hearing affidavits he submitted from Ahmed Abubakar and Suleman. He points
out the IJ gave these affidavits full weight, but he contends the IJ rejected them
without giving specific, cogent reasons for doing so. The record shows otherwise,
however. As the BIA explained, the IJ gave full weight to the affidavits, which
indicated Mr. Karim had been speaking about the Land Guard and religion at a
mosque located at a lorry park. The IJ acknowledged these affidavits might have
resolved some inconsistencies, but they did not reconcile Mr. Karim’s explanation
that he fabricated the religious aspect of his story to obtain faster, better treatment at
the hospital. Indeed, contrary to his explanation that he fabricated the religious
aspect of his story, the affidavits indicate his speech did compare the Land Guard to
religious fundamentalists. The affidavits thus support the adverse credibility finding.
Mr. Karim also contends the IJ provided deficient reasoning for rejecting his
explanation that he fabricated the religious aspect of his story to ensure he received
better, faster treatment. But the IJ pointed out Mr. Karim had already received
stitches and his explanation that he thought he might need additional treatment was
unpersuasive. The BIA determined the IJ did not clearly err in rejecting this
explanation. See Kabba v. Mukasey, 530 F.3d 1239, 1245-46 (10th Cir. 2008)
(recognizing the BIA reviews an IJ’s credibility findings for clear error and “where
there are two permissible views of the evidence, . . . the factfinder’s choice between
them cannot be clearly erroneous” (internal quotation marks omitted)). Given
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Mr. Karim’s conflicting explanations, “[a] reasonable adjudicator would not be
compelled to find [him] credible,” Htun, 818 F.3d at 1120, because the record
demonstrated a sound basis for discounting his credibility. See Chaib v. Ashcroft,
397 F.3d 1273, 1278 (10th Cir. 2005) (“A proper incredibility determination can be
based on inherent inconsistencies in the applicant’s testimony, lack of detail, or
implausibility of the applicant’s story[.]”).
Next, Mr. Karim faults the IJ’s analysis of the sworn statement he gave to the
CBP officer. Although Mr. Karim acknowledges his sworn statement indicated his
brother was tortured, he says he adequately explained this mistake based on faulty
information provided by his mother. Mr. Karim contends he clarified on cross-
examination that Suleman, his cousin, had been threatened, not tortured, so he
omitted the torture allegation from his direct testimony. He therefore insists these
discrepancies do not support discrediting him.
To the extent Mr. Karim asks us to reweigh the adequacy of his explanations,
we cannot do so. See Htun, 818 F.3d at 1119. To the extent he contends the BIA
improperly rejected his explanations, we disagree. The inconsistencies cited by the
BIA—that Mr. Karim’s sworn statement indicated his brother had been tortured when
it was his cousin who had only been threatened—were substantial evidence
supporting the adverse credibility finding.
Moreover, the BIA observed that when the government asked Mr. Karim about
why he did not mention his brother being tortured, he replied, “it was my mother who
told me that,” Admin. R. at 210, meaning Mr. Karim’s mother told him Suleman had
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been tortured. Yet on redirect, Mr. Karim testified his mother told him the Land
Guard “came and threatened your brother,” saying they would do to Suleman what
they had done to him. Id. at 227 (emphasis added). Noting this changing testimony,
the IJ observed Mr. Karim initially testified his mother told him Suleman had been
tortured, but on redirect testified she told him Suleman had been threatened.
Mr. Karim insists he simply misunderstood his mother, and even if we agreed, we
may not reweigh the evidence of his credibility, which is what Mr. Karim asks us to
do. See Htun, 818 F.3d at 1119. Applying the deferential standard of review, we
conclude Mr. Karim’s shifting testimony supported the adverse credibility
determination because it exemplifies how his efforts to explain the omission “only
created further questions as to his honesty,” Igiebor, 981 F.3d at 1135.
Mr. Karim also challenges the reliability of his sworn statement, arguing that
the CBP interview was informal and conducted in English. The BIA rejected this
argument, and so do we. As an initial matter, we reject Mr. Karim’s premise that the
adverse credibility finding was predicated simply on inconsistencies between his
sworn statement and his testimony. The foregoing discussion demonstrates the
adverse credibility finding was based, not simply on inconsistencies between the
sworn statement and Mr. Karim’s testimony, but critically, on his failed attempts to
explain those inconsistencies.
In any event, there is no indication the CBP interview and Mr. Karim’s sworn
statement were unreliable. Mr. Karim points out that Hausa is his native language
but the CBP interview was conducted in English. Yet he told an IJ at a preliminary
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hearing that English was his best language. And while Mr. Karim later stated Hausa
was his best language, his attorney had to remind him during his merits hearing to
speak in Hausa rather than English. Moreover, the record confirms that, as the BIA
observed, Mr. Karim’s sworn statement bore sufficient indicia of reliability. Indeed,
it was administered by the CBP officer, who advised Mr. Karim that it was very
important to tell the truth because he could be subject to civil or criminal penalties or
barred from receiving immigration benefits if he gave false information. Mr. Karim
indicated he understood what the officer said to him, and he swore that his responses
were true and complete. He then answered the officer’s questions. We discern
nothing in this evidence to suggest any language barriers or comprehension
difficulties, and nothing about the CBP interview or Mr. Karim’s sworn statement
undermines the agency’s adverse credibility finding.
Apart from challenging the adverse credibility finding, Mr. Karim contends the
IJ inadequately explained what other evidence in the record, independent of his
testimony, she considered in concluding that he failed to satisfy the standards for
asylum and restriction on removal. Both the IJ and the BIA stated, however, that the
IJ considered all the record evidence, even if it was not specifically discussed. “The
BIA is not required to write an exegesis on every contention. What is required is
merely that it consider the issues raised, and announce its decision in terms sufficient
to enable a reviewing court to perceive that it has heard and thought and not merely
reacted.” Ismaiel, 516 F.3d at 1207 (internal quotation marks omitted). We must ask
whether the BIA’s decision is sufficient to permit our meaningful review, and here,
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we are satisfied it is. The agency appropriately considered the record evidence in
concluding Mr. Karim failed to satisfy the standards for asylum and restriction on
removal.
Finally, Mr. Karim challenges the denial of CAT relief based on what he says
is the unsupported adverse credibility finding, but our disposition upholding that
finding defeats his argument. See id. at 1206 (“[T]he IJ and BIA could reasonably
refuse to believe [the noncitizen’s] claims of past torture and, reviewing all the
evidence, remain unpersuaded that [he] satisfied his burden of proving that he would
probably be tortured if [removed].”).
III
Accordingly, the petition for review is denied.
Entered for the Court
Veronica S. Rossman
Circuit Judge
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