Summesh Naul v. Atty Gen USA , 106 F. App'x 791 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-3-2004
Summesh Naul v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1762
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
NO. 03-1762
_________
SUMESH NAUL,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES
_________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
BIA No. A79-429-861
Argued May 27, 2004
Before: RENDELL and COWEN, Circuit Judges,
and SCHW ARZER*, District Judge.
(Filed: August 3, 2004)
Visuvanathan Rudrakumaran [ARGUED]
Suite 2309
875 Avenue of the Americas
New York, NY 10001
Counsel for Petitioner
* Honorable William W. Schwarzer, Senior District Judge for the Northern District
of California, sitting by designation.
Mark C. Walters
Douglas E. Ginsburg
Lyle D. Jentzer
Stephen J. Flynn [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Sumesh Naul, a citizen of Guyana, petitions for review of a decision by the Board
of Immigration Appeals (“BIA”) denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). In so ruling, the
BIA affirmed without opinion the finding of the Immigration Judge (“IJ”) that Naul
lacked credibility because of inconsistencies between his testimony and certain
documentary evidence presented. We have jurisdiction under 8 U.S.C. § 1252. For the
reasons set forth below, we will grant Naul’s petition for review.
I.
Naul was the sole witness at his asylum hearing, and he provided a narrative of his
experiences from which we glean the following facts. Naul is a 26 year-old citizen of
2
Guyana, and his ethnicity is Indo-Guyanese. Naul’s father was a supporter of the
People’s Progressive Party (“PPP”), one of the two dominant political groups in Guyana.
The PPP controls the national government, and the opposing party, the People’s National
Congress (“PNC”), controls the Guyanese police forces. The parties essentially
correspond with the ethnic breakdown of the Guyanese people – the PPP is mostly Indo-
Guyanese, and the PNC is mostly Afro-Guyanese. Naul was not an active PPP member,
but after his father died, the PPP helped Naul set up his own automotive mechanic shop.
In return, Naul did election campaign work in support of the PPP during the March 2001
election.
On March 4, 2001, as part of this campaign work, Naul and two other men were
distributing posters in support of the PPP when they were confronted by a group of five
Afro-Guyanese men who identified themselves as PNC members. The PNC members
threatened them, and when Naul and the others protested, the PNC members beat them
and threatened their lives. Upon returning home, Naul realized that he had cuts on his
arm and forehead. He sought medical treatment for his injuries, and at the asylum hearing
he submitted a doctor’s report confirming his visit and describing his injuries. Naul
reported the incident to the police, but no action was taken. Naul claims that he looked
for an Indo-Guyanese police officer to speak with regarding the incident, but he could not
find one.
3
In October of 2001, while Naul was walking to a supermarket near his home, a
black van stopped next to him, and two men pulled him into the van. Once inside, the
men reminded Naul of how they had beaten him before, and then proceeded to beat him
again, this time threatening him with a gun as well. They warned him that if he did not
close his auto shop, they would kill him. Naul indicated that the men were Afro-
Guyanese mechanics who worked in the village where Naul’s home and shop were
located. The men also suggested that he disappear because they did not want to see him
again in their village. Naul went to report the incident to the police, who slapped him and
told him that they would put him in jail if he came to complain again. Naul’s mother
subsequently went to another police station in a nearby village to report the incident.
However, she was advised that the police officers there could do nothing to help.
Fearing for his safety and the safety of his family, Naul closed his auto shop and
moved to Mahadeo Munsamy’s house to hide. Munsamy, who was a PPP member and,
according to Naul, a member of Parliament, informed Naul that the government was weak
and could not protect him because the police forces were controlled by the PNC.
Munsamy also suggested that he “go to the next country and seek asylum.” Following
this advice, Naul contacted an agent who sold him a fake passport and a ticket to the
United States.
Upon arriving in Miami in December of 2001, Naul was questioned and detained
by INS authorities, who noticed his fake travel documents. After having a credible fear
4
interview with an INS officer, the agency referred Naul’s asylum claim to an IJ for full
consideration. Naul conceded removability before the IJ, renewed his request for asylum
and withholding of removal, and sought protection under CAT. In addition to his
testimony, Naul submitted six affidavits from family members and friends, along with the
medical report related to his first assault and various articles describing the treatment of
Indo-Guyanese by the PNC police forces.
In her oral decision, the IJ found that Naul was not credible and denied his asylum
application. The IJ stated that there were material inconsistencies between Naul’s
testimony and the evidence presented. First, the IJ noted that the medical certificate
documenting the treatment Naul received after the March 2001 incident did not indicate
that Naul was treated for cuts, which he claimed were inflicted on him by the PNC
members. Second, an affidavit submitted by a Justice of the Peace stated that Naul was
beaten by protestors during the March 2001 incident, while Naul testified that his
assailants were PNC members and did not mention a “protest.” Third, Naul testified that
his mother received threats that were conveyed to her by her neighbor, but his mother’s
affidavit mentioned that she had received the threats herself. Fourth, while Naul testified
that Munsamy, the PPP member who advised him to leave Guyana, was a member of
Parliament, Munsamy did not mention that he held such a position in his affidavit. And
fifth, the IJ viewed Naul’s testimony as being generally incredible, based on the extreme
and “hysterical” nature of some of Naul’s comments.
5
In the alternative, the IJ stated that Naul’s beatings were not severe enough to
constitute persecution, that he was not singled out because of his race or other protected
grounds, and that the “persecution” could not be attributed to the government. The IJ also
found that Naul had not shown he would be persecuted upon his return to Guyana.
Finally, the IJ determined that there was no evidence in the record indicating that
relocation was impossible or unreasonable. The BIA affirmed the IJ’s decision without
opinion.
On appeal, Naul challenges the IJ’s conclusions regarding his credibility, the
reasons for and severity of his past persecution, the reasonableness of his fear of future
persecution, the existence of a pattern or practice of persecution of ethnic Indians in
Guyana, and his ability to relocate within the country.
II.
Where the BIA affirms without opinion, the IJ’s decision becomes the final agency
determination for purposes of our review. 8 C.F.R. § 1003.1(e)(4) (2003); Dia v.
Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003) (en banc). We exercise plenary review over
the IJ’s conclusions of law, although the agency’s interpretation of the Immigration and
Nationality Act (“INA”), and the regulations it has passed through the power granted to it
under the INA, are “subject to established principles of deference.” Coraggioso v.
Ashcroft, 355 F.3d 730, 733 (3d Cir. 2004).
6
In reviewing factual findings contained in the IJ’s decision, including adverse
credibility determinations, we apply the substantial evidence standard, which allows us to
grant the petition and vacate the IJ’s determination only if the evidence is “so compelling
that no reasonable factfinder could fail to find” in Naul’s favor. INS v. Elias-Zacarias,
502 U.S. 478, 484 (1992). When we apply this standard of review, we consider whether
“the evidence supporting [the IJ’s] decision is substantial, when viewed in the light that
the record in its entirety furnishes, including the body of evidence opposed to [the IJ’s]
view.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
As we review an IJ’s determination that a petitioner lacks credibility, we examine
whether the IJ provided specific reasons that “bear a legitimate nexus to the finding” that
the petitioner’s claims lack credibility. Balasubramanrim v. INS, 143 F.3d 157, 162 (3d
Cir. 1998). We will generally defer to an IJ’s credibility findings, so long as they are
“conditioned on support in the record.” Dia, 353 F.3d at 249-50 (quoting El Moraghy v.
Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003)). However, “minor inconsistencies in the
record . . . are not an adequate basis for an adverse credibility finding.” Senathirajah v.
INS, 157 F.3d 210, 221 (3d Cir. 1998). The IJ must instead base such a finding on
discrepancies that “involve the ‘heart of the asylum claim.’” Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002).
7
III.
We will first address the IJ’s adverse credibility determination and explain why we
must disagree with it. Unlike many immigration cases that come before us on review, the
IJ here noted that Naul’s testimony was entirely internally consistent, and was also
completely consistent with his written asylum application. Because Naul did not
contradict himself in his testimony or his application, the IJ relied upon perceived
inconsistencies between Naul’s account of his persecution and the documents presented
in connection with his asylum claim. We conclude that the inconsistencies mentioned in
the IJ’s opinion, considered individually or in combination, do not go to the “heart” of
Naul’s asylum claim; therefore, they “are not an adequate basis for an adverse credibility
finding.” Senathirajah, 157 F.3d at 221.
The IJ first noted a discrepancy between Naul’s testimony, which indicated that he
had cuts on his right arm and his head after the first beating, and the medical report,
which indicated that Naul suffered from “blunt trauma” and “post-traumatic oedema” to
his right arm and forehead. We do not view these two pieces of evidence – Naul’s
testimony and the report – to be contradictory at all; the information contained in his
testimony and the report are certainly not mutually exclusive. Because blunt trauma,
swelling, and cuts are all consistent with the type of beating that Naul described, we
actually view the medical report as corroborative of Naul’s testimony, rather than
contradictory to it. Additionally, the report indicates that Naul was injured in the same
8
two locations – his right arm and his forehead – as he indicated himself in his testimony.
Moreover, even if we concluded that a discrepancy existed here, we would find such an
inconsistency to be minor, and insufficient to provide substantial evidence supporting an
adverse credibility finding.
Next, the IJ mentioned three discrepancies that she noticed when comparing
Naul’s testimony to the affidavits from his friends and family members. Naul submitted
affidavits signed by his mother, Munsamy, his uncle, a childhood friend, a minister, and a
Justice of the Peace. All six of these affidavits generally support the major elements of
Naul’s story. However, the IJ focused on inconsistencies she perceived with respect to
three of the affidavits. In one affidavit, Naul’s mother indicates that she left her home to
live with her brother “due to the number of threats [she] received from [Naul’s] political
persecutors.” But, according to Naul’s testimony, his mother was never directly
threatened; her neighbor told her of threatening comments made by PNC members who
came looking for Naul. In another affidavit, a Justice of the Peace indicated that he knew
of the two altercations during which “Naul was being beaten by [a] gang of protesters.”
But, according to Naul’s testimony, he was beaten by PNC members who confronted him;
Naul made no mention of any protests. In a third affidavit, Munsamy stated that he was a
PPC Committee member, but said nothing about holding a position in the Parliament, as
Naul indicated in his testimony.
9
Again, we do not find any of these documents to affirmatively contradict any
portion of Naul’s testimony. His mother could have “received” threats passed along to
her by her neighbor, and the Justice of the Peace could refer to members of the opposing
political party as “protesters.” Munsamy might not have mentioned his role as a member
of Parliament, or Naul could have confused his status as a ranking member of the PPP
with that of a government official. Further, the remaining three affidavits, each of which
supports Naul’s testimony, were in no way discredited. But even if we could countenance
the IJ’s interpretation of these documents as contradictory to Naul’s testimony, we
conclude that the “discrepancies” relied upon by the IJ were precisely the type of “minor
inconsistencies” that are unrelated to the heart of Naul’s asylum claim. See Gao, 299
F.3d at 272; Senathirajah, 157 F.3d at 221. Thus, they cannot form a proper basis for
rejecting Naul’s claim via an adverse credibility determination.1
Finally, the IJ found that “the background documents presented . . . do not support
[Naul’s] extremely generalized and almost hysterical claims . . . .” This characterization
of Naul’s testimony was presumably caused by certain broad statements made by Naul
1
The IJ also noted the fact that Naul, during an interview at the airport, gave his
grandparents’ names when asked for his parents’ names. However, Naul attempted to
explain this in his testimony, stating that he misunderstood the question and was later
prohibited from changing his answers before he signed the interview statement. Given
the fact that we are generally skeptical of reliance upon statements made in airport
interviews, see Dia v. Ashcroft, 353 F.3d 228, 257 (3d Cir. 2003), and given Naul’s
explanation, we do not think this would provide a permissible basis for the IJ’s adverse
credibility determination.
10
near the conclusion of his testimony, indicating that Indo-Guyanese people, including
government officials, would continue fleeing Guyana due to the abuses they suffer at the
hands of the PNC-dominated, Afro-Guyanese police forces. While the IJ might have
correctly believed that Naul was exaggerating a bit in the final portion of his testimony,
his description of the conditions in Guyana and his own experiences there appear to be
confirmed by numerous newspaper and magazine articles submitted by Naul as
supplemental background information.2 And, nothing in the State Department’s Country
Report is directly contradictory. His exaggerations convey his fear, which is supported by
his documentary submissions, as well as indications in the Country Report that ethnic
tensions have resulted in instances of abuse by the police, and we do not think that they
undermine the rest of his testimony sufficiently to reject his account as incredible.
Thus, we conclude that none of the reasons listed by the IJ amount to substantial
evidence to support an adverse credibility determination here. The documentary
evidence, some of which the IJ barely referenced in her opinion, seems to largely support
Naul’s account. Accordingly, we are compelled to reject the IJ’s finding that Naul lacked
credibility.
2
We also note that similar claims of persecution have been asserted in asylum cases
involving other Indo-Guyanese petitioners, including two cases that resulted in non-
precedential opinions from our own court. See Bridgemohan v. Ashcroft, No. 03-1763,
2004 WL 857328 (3d Cir. Apr. 22, 2004) (not precedential); Arjune v. Ashcroft, No. 01-
1468, 2001 WL 1683808 (3d Cir. Dec. 18, 2001) (not precedential).
11
IV.
After rejecting Naul’s claim on the basis of the adverse credibility determination,
the IJ went on to examine, in the alternative, whether Naul should be granted asylum
assuming that he had provided credible testimony. The IJ concluded that Naul would still
not be eligible for asylum, finding that Naul had not been subjected to persecution on
account of his ethnicity or political opinions, that Naul had not shown that the Guyanese
government was unwilling or unable to prevent the type of treatment Naul described, and
that Naul had not demonstrated that he would be unable to avoid future persecution by
relocating within Guyana. Because we conclude that each of these alternative findings
are laced with the same improper skepticism that was at the heart of the adverse
credibility determination, we will remand the case to the agency in order to give the IJ
another chance to consider Naul’s application in light of our opinion. See Ezeagwuna v.
Ashcroft, 325 F.3d 396, 411 (3d Cir. 2003); see also INS v. Ventura, 537 U.S. 12, 16-17
(2002). To demonstrate why a remand is necessary, we will briefly address each of the
IJ’s alternative conclusions.
Regarding past persecution, the IJ thought that neither incident described by Naul
amounted to persecution. As to the first incident, the IJ stated that getting “beaten up” for
“stray[ing] out of his area into an Afro-Guyanese village” did not “rise to the level of
persecution.” As to the second, the IJ concluded that the motivation for the beating and
threats was economic in nature, and was not related to any of the protected grounds – in
12
other words, Naul was beaten up by other competing mechanics because of the success of
his business. W e question both of these conclusions.
Naul testified that during both of his encounters with the PNC members, his
assailants threatened to kill him; the second time, they did so while wielding a gun.3
Further, his testimony also seems to establish that there were, at the very least, ethnic
overtones to both encounters. According to Naul, the cause of the first beating was his
status as an Indo-Guyanese and his assistance to the PPP political party. His testimony
also indicated that the cause of the second encounter was his ethnicity, perhaps in
combination with his profession; according to Naul, and acknowledged by the IJ, his
Afro-Guyanese assailants specifically indicated that they did not want an Indian mechanic
working in their village.4
We perceive that the IJ, in concluding that these attacks did not amount to
persecution or were not attributable to Naul’s nationality, carried over certain feelings
harbored regarding Naul’s credibility into her alternative findings. Her discussion of the
3
As we have previously observed, “persecution” includes “threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (emphasis added).
4
As Naul asserts, an asylum petitioner need not demonstrate that the protected ground,
such as ethnicity, was the exclusive motivation behind the alleged persecution. See
Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997) (holding that asylum applicants need
only offer evidence from which it is reasonable to believe that the harm “was also
motivated, at least in part,” by protected grounds); In re S-P- (Interim Decision), 21 I. &
N. Dec. 486 (BIA 1996) (discussing the burden of proof on petitioners in “mixed motive”
cases).
13
attacks and her explanation of why they did not support Naul’s claim of past persecution
were tainted by her reluctance to believe Naul’s testimony regarding the nature of his
injuries and the racial overtones of his encounters with the Afro-Guyanese PNC members.
Thus, on remand, the IJ should reexamine the question of whether Naul suffered past
persecution, and she should do so in a manner that is consistent with this opinion.5
The IJ’s second alternative conclusion involved the Guyanese government’s
willingness and ability to control the type of abuses described by Naul. Naul and his
mother sought help from the local police forces on three separate occasions, and each
time the police explicitly refused to help them by taking a report and investigating,
despite the fact that Naul was able to name the men who assaulted him. The officers,
who constitute an arm of the government, offered no explanation for their refusal or their
inability to help Naul. However, the IJ was quite obviously skeptical of Naul’s claim that
he was unable to find an Indo-Guyanese police officer. She also seemed hesitant to
believe that Afro-Guyanese officers responded to complaints in the manner described by
Naul, despite the fact that Naul had offered numerous articles describing precisely that
5
Naul also challenges the IJ’s conclusion that he failed to demonstrate that there is a
pattern or practice of persecution against ethnic Indians in Guyana. We are inclined to
agree with the IJ that no such pattern or practice exists in a case such as this one, where
Naul belongs to the slightly dominant political and ethnic group, but we need not discuss
the issue further here in light of our conclusions on the other issues. If Naul succeeds in
showing that he was subjected to past persecution when the agency reconsiders his case in
light of this opinion, he will benefit from a presumption that his fear of future persecution
is well-founded. See 8 C.F.R. § 208.13(b)(1). Thus, his failure to show a pattern or
practice of persecution in Guyana will not be fatal to his asylum claim.
14
sort of behavior on the part of local police forces. The IJ’s reluctance to credit these
aspects of Naul’s testimony demonstrates, again, that her credibility determination
impacted her view on this issue as well. Therefore, she should revisit the question of
whether Naul’s persecution is attributable to the Guyanese government in light of our
discussion in this opinion, as well as the background evidence offered by Naul.6
And finally, as to relocation, the IJ determined that the evidence offered by Naul
did not establish that he would have been unable to safely relocate within Guyana.
However, if, as we have outlined above, Naul actually did prove that he was subjected to
past persecution, he benefits from a presumption that internal relocation is unreasonable.
See 8 C.F.R. § 208.13(b)(3)(ii). To rebut that presumption, the burden would lie with the
Government to establish “by a preponderance of the evidence that, under all the
circumstances, it would be reasonable for the applicant to relocate.” Id. In light of our
decision regarding the other issues raised by Naul, we conclude that this issue may
require further examination on remand as well.
6
Unlike the IJ, we do not think that Naul had any further duty to visit distant police
stations in search of an Indo-Guyanese officer, or to contact higher-ranking members of
the PPP-controlled government to report the failings of the PNC-dominated police forces.
Unheeded attempts to report multiple assaults, especially when considered in light of the
background documentary evidence offered by Naul regarding exactly this type of
uncontrolled police inaction, can be sufficient to show that the government was unable or
unwilling to prevent the type of abuse that Naul suffered. Cf. Surita v. INS, 95 F.3d 814,
819-20 (9th Cir. 1996) (finding past persecution where an Indo-Fijian reported repeated
robberies, but local police refused to protect her or arrest her assailants). The fact that
Naul is a member of the slightly dominant ethnic and political group in a deeply divided
nation is not fatal to his claim of past persecution.
15
V.
For the reasons stated above, we conclude that the IJ’s adverse credibility
determination was not supported by substantial evidence in the record. We also conclude
that the IJ’s alternative findings were likewise infected by improper skepticism of Naul’s
testimony. Accordingly, we will grant the petition for review, vacate the order of
removal, and remand the matter to the BIA with instructions to refer the matter to the IJ
for further proceedings consistent with this opinion.
_________________________
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