Micheline Lochard v. Atty Gen USA ( 2011 )

  •                                                 NOT PRECEDENTIAL
                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                          No. 09-4642
                            KEVIN ALEX LOCHARD,
                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
               (Agency Nos. A097 200 293; A097 200 294; A097 200 295)
                     Immigration Judge: Honorable Susan G. Roy
                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 4, 2011
                Before: SCIRICA, FISHER and ALDISERT, Circuit Judges
                               (Opinion Filed February 11, 2011 )
                                  OPINION OF THE COURT
          Micheline Noel Lochard, and her minor sons Carl and Kevin, petition for
    review of an order of the Board of Immigration Appeals (ABIA@), which dismissed
    her appeal from an Immigration Judge=s (AIJ@) final removal order. We will deny
    the petition for review.
          Lochard and her sons are natives and citizens of Haiti. They came to the
    United States in April 2003, and applied for asylum and related relief.1 Lochard
    testified that she had been a member of the National Development Mobilization
    Party, or M.D.N., since January 2000. In January 2003, she received a letter
    from a friend inviting her to attend a Lavalas2 meeting. She was reluctant to
    attend, as the M.D.N. was an anti-Lavalas party, but her friend convinced her,
    saying that the issues to be discussed would be social issues, such as economic
    development and creation of a park, rather than political issues. She attended
    the meeting on January 18, 2003, and the organizers passed out a form to sign
    up for Lavalas membership. She declined to sign it, saying that she needed to
    discuss it with her husband, and also said she was a member of M.D.N. She
    testified that she was then shoved out of the meeting, because they thought she
    was a spy. Around 11 p.m. that night, two men knocked on the door of her home
    and then forced their way in, slapped, kicked, beat and interrogated her for 10
               The applications for relief are based solely on Micheline=s claim that
       she was and/or will be persecuted because of political opinion. Although her
       sons also filed applications, they claimed only that they would be persecuted
       because of their mother=s political involvement. The remainder of this opinion
       will refer only to Micheline=s claims.
             Fanmi Lavalas was former president Aristide=s political party. See 2004
       Country Reports on Human Rights Practices, Haiti, A.R. 291.
    minutes. They said they were leaving but would come back and force her to join
    Lavalas and renounce her M.D.N. membership. She suffered a bad migraine and
    a tooth was loosened (and fell out after
    she came to the United States). She did not report the incident or seek medical
    treatment, but her husband did report it to the police later.
          On February 22, 2003, she was not home, but her husband said two men
    came looking for her and asked if she had filled out the membership form; he said
    no, so they said they would return later. Her husband advised her to hide out,
    and she hid at a friend=s house for about one month. Her husband then said she
    could come back because things had calmed down. On March 25, 2003,
    however, seven men came at one a.m. She was able to hide in a pool or basin
    behind the house, but the men came into the house and started breaking things
    and saying they would kill her. They pointed a gun at her husband, and beat him.
    They destroyed everything in the house and then left. She sneaked back into
    the house in about 15 minutes, found her husband lying on the ground, and had
    to revive him by pouring water on him. Her husband made arrangements for her
    to leave the country, and her sons followed soon after. She first testified that her
    husband was in hiding, but then said he was just trying to lie low. She believes
    that even though Aristide is no longer in power, members of the Lavalas party are
    still powerful and interested in her.
          The IJ found her not to be credible, based primarily on several
    inconsistencies between her initial asylum application and her testimony: (1) the
    application did not mention the January 18, 2003 incident, when she was
    allegedly physically harmed; (2) the application did not state that she told Lavalas
    members at the meeting that she was a member of M.D.N.; (3) the application
    stated that she attended the meeting because she wanted to hear what they had
    to say (rather than because she thought they would not be discussing political
    matters); and (4) the application did not state anything about her husband being
    beaten during the March 25, 2003 incident. Lochard explained these
    discrepancies by stating that a friend filled out the form for her and that Lochard
    did not speak much English when she came to the United States.
          The IJ=s decision also mentioned an additional statement, see A.R. 212,
    Awhich was never submitted to the Court,@ and which addressed some of the
    discrepancies. The IJ considered the statement, but found it did not cure the
    problems with Lochard=s credibility. The statement did say that Lochard told the
    people at the meeting that she would have to notify her party before she signed
    the form. The additional statement mentioned the incident on the evening of
    January 18th, but stated that there were three men that came to her home, rather
    than two. The statement also said she was punched and slapped, but did not
    mention her being kicked, nor did it mention that she had a migraine headache
    and a loosened tooth. The statement also mentioned the March 2003 incident,
    but did not mention that her husband was beaten. The IJ found Lochard
    incredible due to the inconsistencies, and also because she failed to provide
    corroborating evidence from her husband and friends. The IJ denied all
    requested relief, except for voluntary departure.
          On appeal, the BIA stated that the IJ Aappear[ed] to have made a legal
    error in relying on the lead respondent=s failure to submit certain documents to
    support her adverse credibility ruling,@ but found the IJ=s remaining findings
    regarding Lochard=s omissions and discrepancies Anot clearly erroneous and . . .
    sufficient on their own to support an adverse credibility ruling.@ The BIA found
    that the discrepancies mentioned were central to Lochard=s claim. The BIA also
    agreed that the Asupplemental statement@ did not solve the credibility problems,
    and noted that there was no indication that Lochard had Asubmitted the
    supplemental statement or testified regarding its contents to the asylum officer.@
    Because of the credibility problems, the BIA upheld the IJ=s denial of asylum and
    withholding of removal. The BIA noted that Arespondents have not appealed from
    the [IJ=s] denial of their applications for withholding of removal under the
    Convention Against Torture [(ACAT@)]@ and thus did not address the IJ=s denial of
    relief under the CAT.3
          Lochard filed a timely, counseled petition for review. She argues that the
               Lochard filed a motion to reopen Aseeking administrative closure of
       their case in order to pursue Temporary Protected Status (ATPS@).@ The BIA
       denied the motion on April 7, 2010.
    BIA Aabused its discretion@ in denying relief, as petitioners provided Acredible,
    consistent and objective testimony and evidence.@ Petitioner=s Brief at 11. She
    argues that the BIA erred by failing to remand the matter to the IJ because of the
    IJ=s erroneous finding regarding credibility and the need for corroborative
    evidence, and that her due process rights were thereby violated. Id. She further
    argues that the petitioners Asatisfied the statutory criteria for withholding of
    removal and protection@ under the CAT, and that the BIA erred in denying
    petitioners= motion to reopen to remand to the Department of Homeland Security
    for final processing of their applications for TPS. Petitioner=s Brief at 23, 35.
          We first consider the scope of our review. Because Lochard did not file a
    petition for review of the April 7, 2010 decision, we may review only the BIA=s
    November 17, 2009 decision. See Nocon v. I.N.S., 
    789 F.2d 1028
    , 1032-33 (3d
    Cir. 1986) (final deportation orders and orders denying motions to reconsider are
    independently reviewable; a timely petition for review must be filed with respect to
    the specific order sought to be reviewed). Our scope of review is further limited
    by the requirement that an alien Araise and exhaust his or her remedies as to
    each claim or ground for relief if he or she is to preserve the right of judicial
    review of that claim.@ Abdulrahman v. Ashcroft, 
    330 F.3d 587
    , 594-95 (3d Cir.
    2003); 8 U.S.C. ' 1252(d)(1). As the BIA noted, Lochard did not raise any issues
    regarding withholding of removal under the CAT in her brief to the BIA. We thus
    lack jurisdiction to consider whether relief under the CAT is warranted. Because
    the BIA issued its own opinion, we review the decision of the BIA, not that of the
    IJ. Huang v. Att=y Gen., 
    620 F.3d 372
    , 379 (3d Cir. 2010).
    We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 
    325 F.3d 396
    405 (3d Cir. 2003), and uphold factual determinations, including adverse
    credibility findings, if they are Asupported by reasonable, substantial and probative
    evidence on the record considered as a whole.@ Guo v. Ashcroft, 
    386 F.3d 556
    561 (3d Cir. 2004). An adverse credibility finding is reviewed under the
    substantial evidence test, and must be upheld unless Aany reasonable adjudicator
    would be compelled to conclude to the contrary.@ Gao v. Ashcroft, 
    299 F.3d 266
    272 (3d Cir. 2002) (quoting 8 U.S.C. ' 1252(b)(4)(B)). To reverse an adverse
    credibility finding, the evidence of credibility must be so strong Athat in a civil trial
    [the alien] would be entitled to judgment on the credibility issue as a matter of
    law.@ Chen v. Ashcroft, 
    376 F.3d 215
    , 222 (3d Cir. 2004). Under the applicable
    law, an adverse credibility finding cannot be supported by speculation, conjecture
    or minor inconsistencies, but must involve discrepancies that go to the Aheart of
    the asylum claim.@ Kaita v. Att=y Gen,, 
    522 F.3d 288
    , 296 (3d Cir. 2008).4
              Because Lochard=s petition was filed before May 11, 2005, the REAL
       ID Act provisions regarding credibility do not apply. Kaita, 522 F.3d at 296.
          The BIA here upheld the IJ=s adverse credibility finding because of
    Asignificant omissions and discrepancies between [Lochard=s] testimony and [her]
    written statements.@ A.R. 4-5. The omissions cited by the IJ go to the heart of
    Lochard=s claim. In particular, we find troubling Lochard=s failure to mention her
    beating and her husband=s beating in her initial asylum application. Lin v. Att=y
    543 F.3d 114
    , 127 (3d Cir. 2008) (attempts by applicant to enhance claims
    of persecution go to heart of petitioner=s claim for relief). Considering those
    inconsistencies and the others cited by the IJ, we find that the adverse credibility
    finding is supported by substantial evidence.5 Because Lochard did not meet her
    burden of supporting her asylum claim through credible testimony, the BIA
    properly upheld the denial of her asylum claim. Abdille v. Ashcroft, 
    242 F.3d 477
    482 (3d Cir. 2001).6
    For the foregoing reasons, we will deny the petition for review.
              Lochard spends much of her brief arguing that the BIA erred by failing
       to remand to the IJ for new credibility findings, and that this failure violated her
       due process rights. However, Lochard failed to ask the BIA to remand the
       matter, and did not claim that her due process rights had been violated by her
       hearing before the IJ. We thus lack jurisdiction to consider the claim. 8
       U.S.C. ' 1252(d)(1). Lochard also argues that she provided sufficient
       corroborative evidence in support of her asylum claim, but the issue regarding
       corroborative evidence is irrelevant because she failed to provide credible
       testimony in support of her claim.
               Lochard was unable to establish refugee status for the purpose of
       asylum; thus, she is necessarily unable to establish the right to withholding of
       removal. See Zubeda v. Ashcroft, 
    333 F.3d 463
    , 469-70 (3d Cir. 2003). As
    Lochard=s claims have failed, the derivative claims of her sons fail as well.