Arslan v. Atty Gen USA , 190 F. App'x 114 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-27-2006
Arslan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3578
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3578
MUSTAFA ARSLAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A95-833-769
Submitted Under Third Circuit LAR 34.1(a)
June 27, 2006
Before: BARRY, VAN ANTWERPEN and SILER,* Circuit Judges
(Opinion Filed: July 27, 2006)
OPINION
*
The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
BARRY, Circuit Judge
Mustafa Arslan petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) affirming without opinion the decision of an Immigration Judge (“IJ”)
ordering his removal. Arslan had applied for asylum, withholding of removal, and
withholding of removal under the Convention Against Torture (“CAT withholding”).
Because the IJ’s adverse credibility finding was supported by substantial evidence, we
will deny the petition for review.
Arslan is a native and citizen of Turkey. He entered the United States on July 23,
2002 in Miami, without a valid visa or entry documents. On April 23, 2003, the former
Immigration and Naturalization Service (“INS”) 1 served him with a Notice to Appear,
alleging that he was removable as “[a]n alien present in the United States without being
admitted or paroled,” 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien arriving without valid
entry documents, id. § 1182(a)(7)(A)(i)(I). He conceded removability at a hearing before
the IJ on May 16, 2003. He submitted an application for asylum, withholding of removal,
and CAT withholding on July 10, 2003.
In the affidavit he attached to his application, Arslan alleged that he is a Muslim
who was persecuted in Turkey on account of his religion and his activities on behalf of
the Fazilet (“Virtue”) political party. He attended a peaceful demonstration on June 18,
1
On March 1, 2003, the functions of the INS were transferred from the Department of
Justice to the Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, 110 Stat. 2135 (Nov. 25, 2002).
2
1999 to protest the Turkish government’s closure of Islamic schools. The police arrived,
beat up protesters, and arrested Arslan and others. At the police station, he was stripped
naked, sprayed with cold water, and beaten, before being released without being charged.
He continued to attend Fazilet meetings until the government banned the party in June,
2001. His sister was banned from attending college because she wore a head scarf. On
April 11, 2002, he attended another demonstration on behalf of a new religious freedom
political party, Soudet. Again, he and others were arrested, stripped, sprayed with cold
water, and beaten. His boss then fired him because of his religious beliefs. Although he
stopped going to political meetings, the police came to his house on May 31, 2002 to
question him about a Soudet rally. He had not attended, but the police warned him that he
would be in “very dangerous trouble” if he did not stop going to demonstrations. He then
decided to come to the United States because of its reputation for religious freedom.
Arslan testified at a hearing before the IJ on February 25, 2004. An interpreter
was present, and Arslan testified in a mixture of Turkish and English. He repeatedly
answered questions about his personal experiences with protestations of confusion,
mostly directed at the reasons for the Turkish authorities’ alleged actions against him. A
few excerpts illustrate the form and substance of his testimony:
MR. ROTHMAN TO MR. ARSLAN
Q. What type of religious school did you attend?
A. It was a regular school, but it was a religious school.
JUDGE TO MR. ARSLAN
Q. What do you mean by a religious school?
A. I don’t know what they were thinking, that’s how they
3
accepted that.
Q. Who accepted that, what are you talking about?
A. Whatever lessons they were getting, we were getting as well.
Q. Who is they, who are you talking about?
A. I don’t understand?
...
Q. Now sir, let me try and understand. You said you went
to a religious school. What kind of religious school is
this?
A. It’s just named, it’s a religious school, 99 percent, it’s Muslim
in Turkey.
Q. What was 99 percent Muslim, sir?
A. The majority is Muslim. They are saying that schools,
religious schools, whatever lessons we were learning –
Q. Sir –
A. It’s called a religious school or whatever, I still, we don’t
understand.
...
MR. ROTHMAN TO MR. ARSLAN
Q. And what type of activities would you be involved in as a
member?
A. We were being restricted as far as our independence, freedom.
JUDGE TO MR. ARSLAN
Q. Sir, the question was, what type of activities did you partake
in?
A. What I like about the party was religiously only religious
freedom of people because Turkey is a Muslim nation, there
was no pressures on that, but this Party, not only for the
Muslims but generally for all people, and if I’m a human
being, I would like to be a member of a country that accepts
people as human beings. I would like to have worked under
Party leaders that had that in mind.
...
MR. ROTHMAN TO MR. ARSLAN
Q. Can you tell us about the protest which you attended?
A. Yes.
Q. What did you do during the protest?
A. There is Party, a Facilet Party (indiscernible) in these protests.
The government had closed that Party, the reason is, we have
no idea.
4
Q. Were you at the protest?
A. I was there, yes.
JUDGE TO MR. ARSLAN
Q. Okay, so what happened, when did this occur?
A. It happened in Toro. We were holding some plaques up.
Q. What date was this, sir? Sir, you’re testifying half in English
and half in Turkish, for the record.
A. It was a date I don’t know.
...
MR. ROTHMAN TO MR. ARSLAN
Q. Your sister (indiscernible)
A. My sister? My sister had one of the university exams, but
because her hair was covered it was very difficult to, I can’t
even tell you all this here.
Q. What, if anything, did you --
JUDGE TO MR. ARSLAN
Q. Well where is it that you think you’re going to tell me?
A. This is something that can’t be explained, it has to be lived.
Q. Okay sir, well this is your golden opportunity to explain it to
me so I can understand it. You can’t expect me to go live it.
A. That’s what I’m trying to explain. Nobody’s doing things by
the rules. They were really pressuring us, then we protested
and it was over, they took us inside, the police, beating us up,
putting cold water on us –
Q. When did this occur?
A. After this protest
Q. When did this occur?
A. ‘98.
Q. In ‘98?
A. No, it’s not ‘98.
Q. When was it, sir?
A. I know the year, so I don’t remember the months.
Q. You know the year, but you don’t remember the month, for
the record he’s speaking in English. Now sir, whether it’s in
English or Turkish, can you tell me when this arrest occurred
or this detention that you’re trying to tell me about? You said
it’s not in 1998, so do you know when it was?
A. 2001, it happened. It was June 16th or so.
...
MR. ROTHMAN TO MR. ARSLAN
5
Q. How often did the police come to your house?
A. I don’t, didn’t want to go to the parties and all of the activities
of my Party because of I was feeling very frightened. They
were threatening.
Q. What kind of threats?
A. You’ll never be able to see your family again. I don’t want to
understand this, I don’t.
Q. What, if anything else, would the police do besides
(indiscernible)
A. If I knew the answer to that.
At the close of the hearing, in an oral opinion, the IJ denied Arslan all relief. She
concluded that he had not met his burden of proof, finding him “not credible nor
persuasive in the least bit.” She found his testimony “inarticulate and devoid of any
rational basis to support a claim for asylum” and cited several specific instances of
vagueness and evasion. She mentioned, for example, his inability to clarify why he called
his high school a “religious school” and his difficulty in settling on the date of the protest,
in the end naming a date different from the one he named in his affidavit. She also found
significant the lack of supporting affidavits from family members in Turkey who could
have corroborated his stories of the various incidents. She denied his requests for relief
and ordered him removed. Arslan appealed to the BIA, which affirmed in a single-judge
opinion on June 28, 2005, under its streamlining regulations. See 8 C.F.R. §
1003.1(e)(4). Arslan filed a timely petition for review.2
2
We have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the BIA
summarily affirms the decision of an IJ, we review the decision of the IJ as though it were
the decision of the BIA. Jishiashvili v. Attorney General, 402 F.3d 386, 391 (3d Cir.
2005). We review factual findings, including credibility determinations, for support by
6
The Attorney General may grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1). A
refugee is defined, in relevant part, as one “who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of, [his 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.” 8 U.S.C. §
1101(a)(42). Withholding of removal is similar: An alien may not be removed to a
country where the alien’s life or freedom would more likely than not be threatened on one
of these five enumerated grounds. 8 U.S.C. § 1231(b)(3); INS v. Stevic, 467 U.S. 407,
429 (1984). Under CAT withholding, an alien may not be removed to a country where it
is more likely than not that he or she would be tortured. 8 C.F.R. § 1208.16(c)(1). The
applicant bears the burden of proof of establishing that he qualifies under one of these
standards. 8 C.F.R. §§ 1208.13(a), 1208.16(b), 1208.16(c)(2). “The testimony of the
applicant, if credible, may be sufficient to sustain the burden of proof without
corroboration.” Id.; see In re M—— D——, 21 I. & N. Dec. 1180, 1182 (B.I.A. 1998)
(“[W]here an alien's testimony is the only evidence available, it can suffice where the
testimony is believable, consistent, and sufficiently detailed to provide a plausible and
substantial evidence. Id. at 392. Such findings will be upheld if “supported by
reasonable, substantial and probative evidence on the record considered as a whole.”
Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003) (internal quotation marks
omitted). They may only be overturned if “any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4). Adverse credibility
determinations must be “supported by specific cogent reasons.” Gao v. Ashcroft, 299
F.3d 266, 276 (3d Cir. 2002).
7
coherent account of the basis of the alien's alleged fear.”).
Arslan argues that the reasons the IJ cited for her adverse credibility determination
were improper. He blames his inarticulate performance at the hearing on his nervousness
and objects that the discrepancy in the dates of his arrest was “a minor inconsistency” that
does not, in our words, “involve the heart of the asylum claim.” Gao, 299 F.3d at 272
(internal quotation marks omitted). We believe, however, that the IJ’s stated reasons
“bear a legitimate nexus to the [adverse credibility] finding,” Balasubramanrim v. INS,
143 F.3d 157, 162 (3d Cir. 1998). While in other circumstances we might not place such
reliance on such seemingly minor matters as an inconsistent date and the petitioner’s
inability to explain further the meaning of the phrase “religious school,” here we find two
factors particularly significant.
First, Arslan’s detentions for taking part in political protests were central to his
claims of intimidation and retaliation. They involved the most severe mistreatment he
alleged, and they were the proximate cause of the authorities’ interest in him and his
family. As such, they were at the “heart” of his claims, and it was reasonable for the IJ to
expect him to describe those events. Second, and perhaps more importantly, as described
above, Arslan’s testimony was by turns elusive, incoherent, nonresponsive, and confused.
Had he been more detailed in the remainder of his testimony, such matters as the year and
date of an arrest might not have loomed so large in the case. As it was, the date of his
arrest was the most specific material fact either his own lawyer or the IJ could elicit from
8
him. As Arslan could not testify consistently either about matters central to his claim or
when he was at his most specific, the IJ justifiably discounted the remainder of his
testimony.
Stated somewhat differently, the IJ’s adverse credibility determination depended
not so much on specific inconsistencies in Arslan’s testimony as on the IJ’s conclusion
that his testimony was not “sufficiently detailed to provide a plausible and coherent
account” of the alleged persecution he suffered. In re M—— D——, 21 I. & N. Dec. at
1182. Where, as here, it is not, the applicant has simply failed to provide the necessary
evidence to substantiate his claim, whether or not this failure is termed an “adverse
credibility determination.” Arslan did not or could not explain in any coherent detail why
he was prevented him from attending college, what he meant by “religious school,” what
activities he was involved in as a member of Fazilet, what he did at the protests, when the
protests were, what happened to him after his arrest, the nature of his work as an
accountant, how often the police came to his house, or the nature of the threats they made
against him. We do not require an IJ to be more specific in describing inconsistencies in
a petitioner’s testimony than the petitioner himself has been in testifying. Accordingly,
we conclude that the IJ’s adverse credibility determination was supported by substantial
evidence.3
3
Arslan also argues that the IJ improperly noted that his family did not supply
corroborating evidence. As he did not raise this issue before the BIA, he has not properly
exhausted it, and we may not consider it. 8 U.S.C. § 1252(d)(1).
9
We will deny the petition for review.
10