Lam v. Ashcroft , 112 F. App'x 477 ( 2004 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0027n.06
Filed: October 13, 2004
No. 02-4279
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SAMBA LAM, )
)
Petitioner-Appellant, )
)
v. ) On Appeal from the Board of
) Immigration Appeals
JOHN ASHCROFT, )
)
Respondent-Appellee. )
Before: BOGGS, Chief Judge; GUY, Circuit Judge; and STEEH, District Judge.*
PER CURIAM. Samba Lam appeals from the Board of Immigration Appeals’s
denial of his application for asylum and associated relief. The Board of Immigration Appeals and
the Immigration Judge had substantial evidence to support their determination that Lam was not a
refugee. We affirm.
I
Samba Lam is a citizen of Mauritania who entered the United States without any valid means
of entry in 1997. The Immigration and Naturalization Service (“INS”) sought removal. In response,
Lam conceded removability but sought asylum under 8 U.S.C. § 1158 and withholding of removal
*
The Honorable George Caram Steeh, United States District Court Judge for the Eastern
District of Michigan, sitting by designation.
No. 02-4279
Lam v. Ashcroft
under 8 U.S.C. §1231(b)(3). Prior to his hearing before an Immigration Judge, Lam filed a
supplemental application that also sought protection under the Convention Against Torture.
Lam primarily alleges that he was persecuted in Mauritania because of his race and ethnicity.
He testified that, in 1989, he fled Nouakchott, Mauritania’s capital, after discovering that his store
was being destroyed during rioting by “White Moors,” the Arab ethnic group that controls
Mauritania’s government. As he approached the village where his family lived, however, the
military captured and imprisoned him for seven months. He claimed that he was tortured in prison
and asked about an opposition political organization called FLAM, a group about which Lam had
no knowledge. He stated that the soldiers subsequently forced him to labor at a military camp near
his village. One night, he escaped by swimming the river to Senegal. He lived there for
approximately seven years, working in someone’s shop.
Lam appeared before an Immigration Judge with the assistance of counsel and an interpreter.
Following a hearing, the Immigration Judge denied Lam any relief primarily because she did not
find Lam credible. He timely appealed that decision to the Board of Immigration Appeals, which
adopted and affirmed the Immigration Judge’s ruling.
II
The decision to grant asylum is a two-step inquiry. Ouda v. INS, 324 F.3d 445, 451 (6th Cir.
2003). The first step is whether the applicant qualifies as a refugee. Only if the petitioner qualifies
as a refugee may the Attorney General choose to exercise his discretion and grant asylum. Ibid. In
this case, the Immigration Judge and the Board of Immigration Appeals ended the inquiry at the first
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Lam v. Ashcroft
step by determining that Lam did not qualify as a refugee. It is this determination that we now
review on appeal. A refugee is an alien who is “unable or unwilling to return to . . . [his] 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). Under
§ 1101(a)(42)(A), an applicant has the burden of proving past persecution or a well-founded fear of
future persecution. 8 C.F.R. § 208.13(a)-(b); see also Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir.
2004). Where, as here, the Board of Immigration Appeals adopts the decision of the Immigration
Judge, we directly review the Immigration Judge’s decision. Denko v. INS, 351 F.3d 717, 726 (6th
Cir. 2003). We review that decision under the substantial evidence test. This court can reverse only
if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see also Yu, 364 F.3d at 703 n.2 (recognizing lingering confusion over the proper
standard but “officially adopt[ing]” substantial evidence).1
The Immigration Judge primarily denied Lam refugee status because she did not think he was
credible. We conclude that this determination was supported by substantial evidence. The
1
The Immigration Judge also ruled against Lam’s claims for withholding of removal and
protection under the Convention Against Torture. Lam does not raise any argument about the
Convention Against Torture in his brief. The claim for relief under the Convention Against Torture
is therefore waived. United States v. Mick, 263 F.3d 553, 567 (6th Cir. 2001); see also Abati v.
Ashcroft, 101 Fed. Appx. 626, 627 (6th Cir. June 17, 2004) (unpublished opinion) (holding that
Convention Against Torture claim is waived when it is absent from appellant’s brief). The grounds
for withholding of removal are the same as for asylum, except that instead of proving a “well-
founded fear of persecution,” 8 C.F.R. § 208.13(b), the applicant “must demonstrate a clear
probability that he would be subject to persecution.” Mikhailevitch v. INS, 146 F.3d 384, 391 (6th
Cir. 1998). Lam then faces the same question, just with “a more stringent showing of truth.” Ibid.
Therefore, a determination that Lam is not eligible for asylum forecloses discussion of withholding
of removal. Ibid.
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Lam v. Ashcroft
Immigration Judge identified several inconsistencies that go to “the heart of [Lam’s] asylum claim,”
specifically his persecution based on his race and ethnicity. Yu, 364 F.3d at 703 (citing Valderrama
v. INS, 260 F.3d 1083, 1085 (9th Cir. 2001)). The inconsistencies most damaging to Lam’s
credibility concerned his nationality certificate. Lam had consistently testified that, after leaving
Nouakchott, he arrived at his village with two forms of identification: his identity card and his
nationality certificate. He claimed that the military asked for his identity card and then tore it up.
In his asylum application, he further claimed that he was able to retain his nationality certificate by
hiding it in his underwear. He testified at his hearing, however, that he kept his card in his pants
pocket, which he then turned over to the military. He claimed at the hearing that the nationality
certificate was still in his pants when his clothes were returned to him seven months later.
Furthermore, the Immigration Judge found it implausible that the military would take his clothes and
then not destroy his nationality certificate after they had torn up his identity card. See Yu, 364 F.3d
at 703 (recognizing that implausibilities in a petitioner’s statement can contribute to an adverse
credibility finding). A second inconsistency concerned the condition of the nationality certificate.
Lam testified that he swam across a river to Senegal with the nationality certificate in his pocket.
When the Immigration Judge examined a copy of the nationality certificate, it in no way suggested
that the original had been water-damaged. Each of these defects in Lam’s account cast doubt on his
account of persecution.
The Immigration Judge also noted an important omission about the period of time in which
Lam was forced to do labor. In his asylum application, Lam described an incident at the camp in
which, after he tried to talk to a woman he recognized, a guard elbowed him in the mouth and broke
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No. 02-4279
Lam v. Ashcroft
his tooth. Lam never mentions this incident in his hearing testimony. Courts have diminished the
significance of omissions when an applicant testifies at a hearing about something that is left out of
his initial application because of the limited space available on the application forms. Secaida-
Rosales v. INS, 331 F.3d 297, 308-09 (quoting Aguilera-Cota v. INS 914 F.2d 1375, 1382-83 (9th
Cir. 1990)); see also Ileana v. INS, 2004 WL 1770569, at *2-3 (6th Cir. Aug. 5, 2004) (unpublished
opinion). This case presents the opposite scenario. Instead of including information at the hearing
that was not disclosed in his asylum application, Lam’s significantly shorter application contains an
incident that is entirely absent from his more detailed hearing testimony. That Lam omitted an act
of persecution from his testimony indicates a lack of credibility.
The Immigration Judge found that Lam’s failure to corroborate aspects of his story further
diminished his credibility. Though “[t]he testimony of the applicant, if credible, may be sufficient
to sustain the burden of proof without corroboration,” 8 C.F.R. § 208.13(a), the Immigration Judge
had already criticized Lam’s credibility. Once credibility has already been challenged, failure to
provide easily ascertainable corroborating evidence reinforces an adverse credibility determination.
See Chebchoub v. INS, 257 F.3d 1038, 1044 (9th Cir. 2001); see also Ba v. Ashcroft, 101 Fed. Appx.
617, 619 (6th Cir. June 17, 2004) (unpublished opinion). Specifically, in this case the Immigration
Judge did not understand why Lam failed to obtain a medical evaluation explaining the origin of the
scars on his back. Having spent several years in the United States, Lam could easily have received
such an evaluation, the results of which might have supported his account of torture during his
imprisonment.
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No. 02-4279
Lam v. Ashcroft
Though some of the other inconsistencies identified by the Immigration Judge may seem
minor in comparison, the inconsistencies, implausibility, omission, and lack of corroboration
discussed above demonstrate that the Immigration Judge’s adverse credibility determination is
supported by substantial evidence. It is clearly not true that “any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
III
Lam argues that the Immigration Judge failed to consider that he would be persecuted on
the basis of an imputed political opinion. Specifically, Lam argues that the Mauritanian government
will assume he is a member of FLAM and persecute him on that basis. The Immigration Judge did
consider that possibility. See J.A. 78 (“I cannot find that the respondent has established that he is
identified or could be identified with the group [FLAM] so as to be subjected to persecution in the
future should be return . . . .”) The only proof Lam offers on this point is testimonial evidence that
he was questioned about FLAM while in prison. But he also testified that he denied all knowledge
about the group and that his interrogators probably recognized he was not a member. See J.A. 108
(“they could not find anything out of me as far as belonging to that group . . . .”) Though Lam
provided a wealth of documentary evidence, none of it suggested that he was a member of FLAM
or that individuals were being wrongly accused of membership in the organization. The
Immigration Judge therefore had substantial evidence that the Mauritanian government would not
associate him with FLAM were he to return.
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Because we affirm the Immigration Judge’s adverse credibility determination, we need not
reach the issue of whether Lam had exhausted his administrative remedies on the issue of
resettlement in Senegal. For these reasons, we AFFIRM the judgment of the Board of Immigration
Appeals.
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