Diallo v. Mukasey ( 2007 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0854n.06
Filed: December 14, 2007
No. 06-4445
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHERIF DIALLO, )
)
Petitioner-Appellant, )
) ON APPEAL FROM THE BOARD OF
v. ) IMMIGRATION APPEALS
)
MICHAEL B. MUKASEY, Attorney )
General of the United States, ) OPINION
)
Respondent-Appellee. )
Before: GUY, MOORE, and GILMAN, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Cherif Diallo, a native and citizen of Guinea,
applied for asylum, withholding of removal, and protection under the Convention Against Torture
(CAT). She claimed that she had been subjected to female genital mutilation (FGM) as a young
child, and that she was arrested, beaten, and raped on account of her political activities as an adult.
After a hearing, an immigration judge (IJ) found her fear of future persecution not to be credible and
ordered that she be deported. The Board of Immigration Appeals (BIA) summarily affirmed the IJ’s
decision. For the reasons discussed below, we AFFIRM the judgment of the BIA.
I. BACKGROUND
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Diallo arrived in the United States from Conakry, Guinea on an international flight in June
of 2002. She was then 28 years old. When an immigration inspector at the Washington-Dulles
International Airport identified problems with her passport and visa, he began to interview her
through a French interpreter because an interpreter who spoke Diallo’s native language of Fulani was
not available. Diallo, who is fluent in French, said that the interpreter “did not speak French well,”
so the inspector secured a second French interpreter by phone.
According to Diallo’s sworn statement, the inspector began by explaining to Diallo that she
appeared to be inadmissible, but that U.S. law provides protection to persons who face persecution
or harm upon return to their home country. The inspector also told Diallo that, if she feared
returning to Guinea, she could have a separate, confidential interview with another immigration
officer regarding her fear. When the inspector asked Diallo if she understood what he had said, she
answered, “Yes.”
The inspector then proceeded to question Diallo regarding her identity, passport, visa, and
reasons for coming to the United States. According to her statement, Diallo told the inspector that
she had come to the United States to attend school in Washington, D.C. Her visa, however, did not
include the name of a school. She told the inspector that she did not know the name of the school
or how long she would stay in the United States because she had not yet contacted the school. Diallo
also said that she did not know when she was to start school, only that she was to begin “after [she]
checked the different schools.” The inspector then asked Diallo about some of the items that she had
in her possession, including pills, a secure keycard, and a document in French titled “Materiels Du
Labo Boimedical.”
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At the end of the interview, the inspector asked Diallo, “Do you have any fear or concern
about being returned to your home country or being removed from the United States?” Diallo
answered, “I am not afraid.” A sworn statement was prepared in English on Immigration and
Naturalization Services (INS) Form I-867A, as required by 8 C.F.R. § 235.3(b)(2). Diallo initialed
each page and signed the document. The inspector did the same, and a witness signed the overall
document. Diallo was then returned to Guinea.
Three months later, in September of 2002, Diallo again flew to the United States and this
time was admitted, apparently because her new visa specified the school that she planned to attend.
She subsequently filed a timely application for asylum, withholding of removal, and protection under
the CAT. Diallo claimed asylum based on persecution due to her political activities and because she
was forcibly subjected to FGM as a young child.
In her asylum application, Diallo recounted two incidents of political persecution. The first
allegedly occurred during municipal elections in June of 2000, when Diallo said that she worked as
a polling monitor on behalf of the Union for the New Republic (the UPR), an opposition party that
represents her ethnic group. According to Diallo, members of the PUP governing party (its initials
are not explained in the record) arrived at the polling station, said that they were going to vote for
people who were not present, and began “filling up the boxes with ballots.” When Diallo and others
allegedly protested, they were arrested, accused of manipulating the votes in favor of the UPR,
interrogated, and taken to a police station. Diallo said that she was then beaten and raped by two
soldiers. She claims that she was released 13 days later and was forced to sign a document stating
that she would not participate in any future demonstrations or political party activities.
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The second incident allegedly occurred in November or December of 2001. While protesting
conditions at Nasser University, where she was a student, she claims that she was again arrested,
beaten, and interrogated by some soldiers. The soldiers allegedly told her that she had been arrested
for political reasons and warned her to quit her political activities. She said that she was released
on or before December 31, 2001 and was required to report to the police every two weeks thereafter,
which she purportedly did.
Diallo’s claim for asylum is also based on the fact that she was forced to undergo FGM when
she was five or six years old. FGM is defined by the World Health Organization as “all procedures
which involve partial or total removal of the external female genitalia or other injury to the female
genital organs whether for cultural or any other non-therapeutic reasons.” Diallo submitted an
affidavit from an INS doctor corroborating her FGM claim. She also claims that she fears that any
daughters she might have could also be subjected to FGM, but conceded that she does not presently
have any daughters.
Diallo met with an asylum officer in January of 2003 to discuss her application. During the
interview, Diallo recounted her claims of political persecution, but did not discuss her FGM claim.
The interview was conducted in Diallo’s native language of Fulani through an interpreter that Diallo
provided. When asked why she left Guinea in September of 2002, she said that she “had a problem
with the PUP party” due to her UPR affiliation. Diallo also told the asylum officer that, after she
was returned to Guinea in June of 2002 and until she entered the United States in September of 2002,
she attended classes at Nasser University and did not encounter any problems because “there were
no events that caused trouble.”
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At the end of the interview, the asylum officer questioned Diallo about her inconsistent
statements regarding her fear of returning to Guinea:
Officer: When you gave your statement at the airport on June 21, 2002, you
said you were not afraid to return to Guinea, and mentioned nothing
about any political activities or persecution you suffered. Why is
your story so different now?
Diallo: When I arrived at the airport, they told me that my passport was fake,
that my visa did not have the address of my school in Washington,
and they did not give me the chance to tell my story. They did not
have a Fullah [sic] interpreter, and the woman interpreter did not
speak French well. When they got an interpreter by telephone, I
could not understand him well.
The asylum officer transcribed the interview by hand and prepared a statement that Diallo signed,
attesting that it was read to her in her native language, and that it is a true, complete, and correct
statement.
An asylum hearing before an IJ commenced in December of 2004 and continued into March
of 2005. Diallo repeated the claims that she had made to the asylum officer in January of 2003.
When asked why she tried to enter the United States in June of 2002, Diallo testified that she wanted
to continue her studies in the United States and confirmed that this was the reason she had given in
her visa application. She also testified that, contrary to the June 2002 airport statement, she had been
afraid to return to Guinea and told the IJ that, after being returned to Guinea, she lived in hiding at
her uncle’s house.
Diallo further testified that her June 2002 statement is inaccurate, that the immigration
inspector never asked her if she was afraid to go back to Guinea, and that she was threatened with
jail if she did not sign it. She also claimed that she could not read the statement because it was in
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English and that, contrary to the requirements of 8 C.F.R. § 235.3, it was not read or explained to
her. Finally, Diallo contended that she could not understand the second interpreter. In her asylum
application, however, Diallo acknowledged that she speaks French “fluently.” She said that the
second interpreter’s “French was good,” but that his accent was “different.”
The IJ issued his decision in March of 2005, denying Diallo’s application for asylum and
withholding of removal, and dismissing her claims under the CAT. He found that she had in fact
been subjected to FGM, but concluded that Diallo’s claims of political persecution and of fearing
a return to Guinea were not credible. Diallo appealed from the IJ’s decision to the BIA, which
summarily affirmed the IJ’s findings. This timely appeal followed.
II. ANALYSIS
A. Standard of review
Where the BIA summarily adopts the IJ’s decision without issuing its own opinion, we
review the decision of the IJ as the final administrative order. Hasan v. Ashcroft, 397 F.3d 417, 419
(6th Cir. 2005). We must affirm the IJ’s factual findings, as well as the conclusion that the petitioner
failed to establish eligibility for asylum, if substantial evidence supports such determinations. INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (upholding the IJ’s rulings where “supported by
reasonable, substantial, and probative evidence on the record considered as a whole”) (citation
omitted). Under this standard, we will not reverse a factual determination of the IJ unless we find
“that the evidence not only supports a contrary conclusion, but compels it.” Marku v. Ashcroft, 380
F.3d 982, 986 (6th Cir. 2004) (emphasis in original). Questions of law involving immigration
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proceedings, on the other hand, are reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir.
2004).
B. Asylum
Adjudicating a request for asylum involves a two-step inquiry: “(1) whether the applicant
qualifies as a refugee as defined in [8 U.S.C.] § 1101(a)(42)(A), and (2) whether the applicant merits
a favorable exercise of discretion by the Attorney General.” Mikhailevitch v. INS, 146 F.3d 384, 389
(6th Cir. 1998) (citation and quotation marks omitted). With respect to the first issue, the term
“refugee” is defined by federal law as
any person who is outside any country of such person’s nationality or, in the case of
a person having no nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that 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)(A).
“The asylum applicant bears the burden of establishing that he or she qualifies as a refugee
‘either because he or she has suffered past persecution or because he or she has a well-founded fear
of future persecution.’” Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003) (quoting 8 C.F.R.
§ 208.13(b)). Once the applicant shows that he or she has suffered from past persecution, the
applicant is presumed to have a well-founded fear of future persecution. Mikhailevitch, 146 F.3d
at 389 (quoting 8 C.F.R. § 208.13(b)(1)(i)). This presumption can be rebutted by the government
“only through establishing by a preponderance of the evidence that since the persecution occurred,
conditions in the applicant’s country have changed to such an extent that the applicant no longer has
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a well-founded fear of being persecuted if he were to return.” Id. (citation and quotation marks
omitted).
The applicant’s “well-founded fear must be both subjectively genuine and objectively
reasonable.” Daneshvar v. Ashcroft, 355 F.3d 615, 623 (6th Cir. 2004). “[A]n alien must actually
fear that he will be persecuted upon return to his country, and he must present evidence establishing
an ‘objective situation’ under which his fear can be deemed reasonable.” Perkovic v. INS, 33 F.3d
615, 620-21 (6th Cir. 1994).
1. Adverse credibility determination
Credibility determinations are findings of fact, and are therefore reviewed under the
“substantial evidence” standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004). “Even so, the
immigration judge’s conclusion must be supported by specific reasons and must be based upon
issues that go to the heart of the applicant’s claim.” Chen v. Gonzales, 447 F.3d 468, 472 (6th Cir.
2006) (brackets, citations, and quotation marks omitted). “Credibility encompasses not just
consistency, but also plausibility and sufficient detail.” Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th
Cir. 2004). A credibility finding, like other factual findings, will be reversed “only if any reasonable
adjudicator would be compelled to conclude to the contrary.” Yu, 364 F.3d at 703 (quoting 8 U.S.C.
§ 1252(b)(4)(B)) (quotation marks omitted).
The IJ found that Diallo was not credible because of “abundant” discrepancies in her case.
Most damaging to Diallo’s credibility is her June 2002 airport statement, in which she explicitly
states that her reason for coming to the United States was to go to school, and that she was not afraid
of returning to Guinea. The 2002 statement lacks any mention of the persecution that she allegedly
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suffered in Guinea and explicitly contradicts her present claim that she fears returning there. Diallo
has since disavowed the airport statement and challenges it on the grounds that she could not
understand the second interpreter, that the statement does not accurately reflect her answers, and that
the statement was not read back to her before she signed it.
Other evidence in the record, however, seriously undermines these claims and her credibility
generally. Diallo’s own asylum application states that she is “fluent” in French and attended French
schools for almost 20 years, including two years of classes at Nasser University that were conducted
solely in French. When pressed about why she could not understand the second interpreter at her
June 2002 airport interview—who, like Diallo, was a French speaker from West Africa—Diallo said
only that his accent was “different.” She seemed at other times to accuse the interpreter of lying
about the questions and answers, a claim made less plausible by Diallo’s own acknowledgment that
the interview was being simultaneously transcribed as it took place.
In addition, a second interpreter was located when Diallo said that she could not understand
the first interpreter. Despite her current claim that she could not understand the second interpreter
either, she did not raise this as an issue at the time. She instead apparently sat through a lengthy
interview and then signed a sworn statement memorializing the interview without further protest.
Diallo had no reason to believe that the immigration inspector would not have tried to locate still
another interpreter if she had requested him to do so.
Moreover, Diallo does not challenge the sworn statement in its entirety. She instead
selectively challenges the portions of her statement that hurt her asylum claim the most—i.e., why
she came to the United States and that she was not afraid to return to Guinea—and does not
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challenge other parts that are consistent with her hearing testimony (e.g., that her uncle, who was
allegedly Guinea’s ambassador to the United States, helped her get a visa, that she wanted to go to
school in the States, and why she had certain items in her possession at the airport).
Diallo also claims that the immigration inspector did not ask her if she was afraid to return
to Guinea, that she did not read the statement before signing it, and that the statement was not read
or explained to her. The claim that she was not asked about her fear of returning to Guinea is
particularly difficult to credit because, as the IJ noted, that was the very purpose of the interview,
consistent with the applicable immigration form, which states that the officer will first “explain [the
immigrant’s] rights, and the purpose and consequences of this process.”
Regulations promulgated under § 235(b)(2) of the Immigration and Nationality Act require
that the examining immigration officer, here the inspector, “create a record of the facts of the case
and statements made by the alien” in the form of a sworn statement using Form I-867A, and “read
(or have read to [the alien]) all information contained on Form I-867A.” See 8 C.F.R.
§ 235.3(b)(2)(i). If an alien in Diallo’s position indicates an intention to apply for asylum or
expresses a fear of persecution, the inspector must discontinue removal proceedings and record
“sufficient information in the sworn statement to establish and record that the alien has indicated
such intention, fear, or concern, and to establish the alien’s inadmissibility.” 8 C.F.R. § 235.3(b)(4).
There is nothing in the record, other than Diallo’s unsubstantiated claims, to indicate that the
inspector failed to comply with his legal duties in either conducting her interview or taking her
statement.
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Apart from the June 2002 airport statement, the IJ also questioned the evidence that Diallo
submitted to corroborate her claims of political persecution. The IJ specifically noted that Diallo’s
most credible witness, her cousin Lena Diallo, testified about Diallo’s political activities on the basis
of information that came entirely from the petitioner herself. Furthermore, Diallo did not produce
corroborating evidence of her political activities that predated her asylum application. She also
acknowledged at both her asylum interview and at her hearing that she did not suffer any persecution
after she was returned to Guinea in June of 2002. As the IJ noted, this undermines her claims that
she will face persecution for her past political activities if she is returned to Guinea. Diallo also
provided inconsistent accounts of her activities in Guinea between June and September of 2002.
According to the sworn statement from her January 2003 asylum interview, which she does not
challenge, she said that she attended classes at Nasser University, where she had allegedly been
arrested in 2001 for protesting education conditions. But at her asylum hearing before the IJ in 2005,
Diallo told the IJ that she lived in hiding at her uncle’s house during that time, and did not mention
that she had attended classes at the university.
We conclude that the IJ’s adverse credibility determination was based on “specific reasons”
that “go to the heart of [her] claim[s]” of political persecution and fear of returning to Guinea. See
Chen v. Gonzales, 447 F.3d 468, 472 (6th Cir. 2006). The record thus contains substantial evidence
to support the IJ’s adverse credibility determination and does not compel a conclusion to the
contrary. See Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004).
Diallo’s citation to INS v. Amadou, 226 F.3d 724 (6th Cir. 2000), does not warrant a different
conclusion. In that case, Amadou appealed a denial of asylum, claiming that his due process right
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to a full and fair deportation hearing was violated because the interpreter was incompetent. Id. at
726. The transcript of Amadou’s hearing showed that the interpreter, who was from Sierra Leone,
and Amadou, who was from Mauritania, spoke entirely different dialects of Fulani, and that there
were several occasions during the hearing when problems with vocabulary, semantics, and coherence
confused the interpreter. Id. at 724, 727. Because the interpreter commented repeatedly that he did
not understand Amadou, the IJ was on notice that there was a problem. Id. at 727. The IJ also
instructed the interpreter, at the end of the hearing, to “just translate what [a witness] said even if it
doesn’t make sense.” Id. This court found that, because Amadou’s application for asylum was
denied based on his hearing testimony, the poor translation adversely affected his constitutional right
to a fair hearing. Id.
Diallo’s case, however, is distinguishable from Amadou in a number of respects. Unlike
Amadou, Diallo does not dispute that she had a full and fair deportation hearing before an IJ.
Diallo’s hearing, which was conducted in her native language, allowed her the opportunity to explain
why she was allegedly unable to understand the second interpreter at the 2002 airport interview. As
previously noted, there is nothing to suggest that the interpreter was incompetent or could not
understand Diallo, or that either the immigration inspector or the second interpreter was aware that
Diallo was having any trouble comprehending the translation.
Diallo’s answers at the 2002 airport interview were responsive, detailed, and generally
consistent with her hearing testimony, with the notable exceptions of her statements that she was not
afraid to go back to Guinea and that she came to the United States to attend school. The specificity
of the interview questions and answers also belies Diallo’s claim that the translation was not
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accurate. In contrast to Amadou, who pointed to several specific problems with the translation,
Diallo relied only on the generality that the interpreter’s accent was difficult to understand.
2. Female genital mutilation
The evidence supports, and the government does not challenge, the IJ’s conclusion that
Diallo in fact suffered past persecution in the form of FGM. Diallo says she fears that, if returned
to Guinea, any daughter that she might have would be subjected to FGM, though she concedes that
she does not presently have a daughter. This speculative possibility is too remote to support her
current asylum claim. See Bah v. Gonzales, 462 F.3d 637 (6th Cir. 2006) (denying asylum to a
mother who claimed that she feared her four daughters, who were living in Guinea at the time, would
be subjected to FGM if she did not obtain asylum and bring them to the United States, because the
daughters were “not here [in the United States] seeking asylum in their own rights based on their
[own] fears of FGM and persecution”); Cf. Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004)
(granting asylum to a mother in her own right because she had a well-founded fear that her young
daughter would face FGM if returned to Ethopia, where the practice is nearly universal, because the
daughter, who sought asylum on her own behalf, was found to have a well-founded fear of
undergoing FGM).
Moreover, we decline to reach Diallo’s argument that she is eligible for asylum solely
because she herself suffered FGM in the past. Diallo did not raise this argument in her appellate
brief, and addressed it only briefly at oral argument in response to the Rule 28(j) supplemental
citations submitted by the government one week before. Issues not adequately raised on appeal may
be deemed waived. See Fed. R. App. P. 28(a) (requiring that an appellate brief contain a statement
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of the issues presented and that the argument contain the contentions of the appellant with respect
to the issues presented, the reasons therefor, and citations to the authorities relied on); see also
Lewless v. Sec’y of Health & Human Servs., No. 93-1581, 1994 U.S. App. LEXIS 12261 at *12 (6th
Cir. May 23, 1994) (unpublished) (holding that this court “is not obligated to consider unsupported
arguments inadequately developed in the briefs” and citing federal circuit cases). Furthermore, as
discussed in Part II.B.1. above, substantial evidence supports the IJ’s finding that Diallo’s belated
claim that she fears returning to Guinea is not credible.
3. Political persecution
Diallo also seeks asylum on the basis of political persecution. Substantial evidence, however,
supports the IJ’s findings that her claims of past political persecution and of a fear of future
persecution are not credible. The evidence that the IJ found most credible, being the testimony of
Diallo’s cousin Lena Diallo, is based solely on information that the witness received from the
petitioner herself. And although Diallo submitted letters from two individuals who attested that they
were arrested with her, she did not produce any corroborating evidence that predates her asylum
application tending to show that she actually protested, or that she was arrested, beaten, and raped.
Moreover, she did not experience any problems upon being returned to Guinea in the summer of
2002, despite attending classes at Nasser University. Her proffered evidence, in sum, does not
compel a conclusion contrary to that of the IJ.
C. Withholding of removal and protection under the CAT
Because Diallo has not satisfied the requirements for asylum, she cannot meet the more
stringent standards required to qualify for withholding of removal or for protection under the CAT.
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See INS v. Cardoza-Foncesca, 480 U.S. 421, 431-32 (1987) (holding that a petitioner who does not
satisfy the asylum requirements for establishing past persecution or a well-founded fear of future
persecution cannot meet the higher thresholds for the latter two forms of relief).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the BIA.
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