Mitondo, Mpoyi v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3178
MPOYI MITONDO,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
ARGUED AUGUST 8, 2007—DECIDED APRIL 24, 2008
____________
Before EASTERBROOK, Chief Judge, and COFFEY and
MANION, Circuit Judges.
EASTERBROOK, Chief Judge. Mpoyi Mitondo, a citizen
of the Democratic Republic of the Congo (known as
Zaire between 1971 and 1997), arrived in the United States
from Scotland bearing a French passport. Citizens of
France do not need visas to enter the United States, and
Mitondo did not have one.
Only cursory checks are made of persons who carry
the passports of nations participating in the visa-waiver
program. But one of the checks is for the passport’s legiti-
2 No. 06-3178
macy, and Mitondo was detained because a blank bearing
the number of the passport he presented had been stolen.
He soon confessed that the passport was not his, and
that he is not French. His request to stay in the United
States has been processed under the “asylum-only”
approach applicable to those who claim entitlement to
enter without visas. Before arriving, Mitondo had
waived any ground other than asylum for remaining in
the United States beyond 90 days. See 8 U.S.C. §1187(b)(2);
8 C.F.R. §217.4(a)(1).
Mitondo contends that he has been persecuted on
account of his politics. He supports the Union for Democ-
racy and Social Progress (Union pour la Démocratie et
le Progrès Social, or UDPS), which is on the outs with
the ruling People’s Party for Reconstruction and Democ-
racy. UDPS is a recognized party with representatives
in the legislature, and its leader Étienne Tshisekedi wa
Mulumba served three stints as Prime Minister. But sup-
porters of the UDPS sometimes receive rough handling
from the police during political demonstrations. Mitondo
testified that he endured ghastly treatment during May
2005, after Joseph Kabila, Congo’s President, postponed
scheduled elections. The UDPS called a general strike,
and Mitondo says that during a demonstration in Mbuji-
Mayi he was arrested, thrown into a filthy cell where his
hands were tied behind his back and a hood kept over his
head, beaten four times, and then sent to the fields for
forced labor—from which he escaped after two weeks.
Mitondo met Roman Catholic priests who helped him to
escape to Zambia, where a second group of priests pro-
vided him with tickets and (false) documentation that
enabled him to reach Glasgow, receive the stolen pass-
port, and enter the United States equipped with a
voucher for prepaid stay at a youth hostel in Chicago.
No. 06-3178 3
The immigration judge accepted Mitondo’s claim to
membership in the UDPS (a claim backed up by the
party’s records and affidavits from its officials) but was
skeptical about the story of his detention and beatings in
May 2005. The voucher had been issued in Glasgow to a
“V. Mitondo,” the same name on the passport, before
Mitondo had escaped from his captors and thus before he
could have met the priests—about whom he has supplied
no details. Asked to explain how this could be so, Mitondo
replied: “I don’t know how they arranged these travel
documents or how they arranged any, any of this.”
After a six-week continuation so that both sides could
gather additional evidence, Mitondo’s memory improved.
Now he testified that the person in Glasgow who gave
him the documents told him that a Vital Mitondo had
planned to travel to the United States but had backed out.
Mpoyi’s photograph then replaced Vital’s on the passport,
and Mpoyi claimed to be Vital in order to use the voucher.
The IJ was skeptical of this story and continued the hear-
ing to allow forensic examination of the passport. An
expert concluded that the document was “free from any
conclusive physical evidence indicating data entry alter-
ation, page substitution, or photo-substitution.” In other
words, Mpoyi’s photo was the first to have been placed
on the stolen blank. Mitondo had no explanation for this,
which demolished his revised story.
The IJ then denied Mitondo’s application for asylum,
finding that he was willing to lie to enter the United
States—Mitondo concedes as much in light of the bogus
claim of French citizenship—and had lied about the
events of May 2005 in particular. Cf. Alsagladi v. Gonzales,
450 F.3d 700 (7th Cir. 2006) (fraud in obtaining entry to the
United States is a good reason to reject a request for
4 No. 06-3178
asylum). The IJ relied on three particular discrepancies:
First, the hostel voucher was issued before Mitondo
claims to have met the priests; second, Mitondo’s testimony
that he took over travel documents from someone else is
inconsistent with his earlier sworn statement that he had
no idea how the documentation was arranged; third, the
forensic evidence undercut Mitondo’s second story about
how his surname and picture came to be on the stolen
passport. The Board of Immigration Appeals affirmed.
Jurisdiction is the first question. Because Mitondo was
placed in asylum-only proceedings following his failed
effort to enter the United States, no formal order of re-
moval has been entered. A court of appeals reviews final
orders of removal, 8 U.S.C. §1252(a)(1), but, for reasons
given in Jiménez Viracacha v. Mukasey, No. 07-1548 (7th Cir.
Mar. 3, 2008), an order that is proper only if the alien is
removable implies an order of removal. At least three other
courts of appeals have reached the same conclusion and
have held that there is jurisdiction to review the final
disposition of an asylum-only proceeding. See Shehu v.
Attorney General, 482 F.3d 652, 656 (3d Cir. 2007); Kanacevic
v. INS, 448 F.3d 129, 134–35 (2d Cir. 2006); Nreka v. Attorney
General, 408 F.3d 1361, 1366–67 (11th Cir. 2005).
Mitondo’s principal argument is that the agency’s
decision is not supported by substantial evidence, because
the problems that the IJ identified do not “go to the
heart of” his claim for asylum. Many decisions, in this
and other circuits, state that inconsistencies on minor
details do not justify disbelief of an alien’s claim to have
suffered persecution. See, e.g., Giday v. Gonzales, 434 F.3d
543, 551–52 (7th Cir. 2006). Mitondo observes that none
of the IJ’s reasons concerns the events that (he maintains)
occurred in Mbuji-Mayi in May 2005. Some other evidence
No. 06-3178 5
in the record suggests that a crackdown on UDPS mem-
bers began in June 2005, and the documents that Mitondo
presented to establish his membership in the UDPS do not
show his presence in Mbuji-Mayi during May 2005 (though
they do establish his activities on behalf of the party in
earlier months). But the IJ did not mention these prob-
lems and so, Mitondo maintains, the judiciary can’t rely
on them either. See SEC v. Chenery Corp., 318 U.S. 80,
88–89 (1943); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
Dissatisfied with judicial reluctance to accept immigra-
tion judges’ credibility decisions, Congress enacted this
provision in 2005 as part of the Real ID Act:
Considering the totality of the circumstances, and
all relevant factors, a trier of fact may base a credi-
bility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s
or witness’s written and oral statements (when-
ever made and whether or not under oath, and
considering the circumstances under which the
statements were made), the internal consistency of
each such statement, the consistency of such state-
ments with other evidence of record (including
the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim, or any other
relevant factor. There is no presumption of credi-
bility, however, if no adverse credibility determina-
tion is explicitly made, the applicant or witness
shall have a rebuttable presumption of credibility
on appeal.
6 No. 06-3178
8 U.S.C. §1158(b)(1)(B)(iii). This subsection applies only
to claims for asylum made after May 11, 2005, see 119
Stat. 230, 305 (2005), and Mitondo’s application is the first
time this circuit has been required to apply the new law.
This statute abrogates decisions that focus on “whether
an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim”. It also specifies that “[t]here
is no presumption of credibility”. Beyond that, the stat-
ute requires courts to use in immigration proceedings
the same deferential approach traditionally applied to
credibility findings in labor cases and other administrative
controversies. See, e.g., Universal Camera Corp. v. NLRB,
340 U.S. 474 (1951); Elliott v. CFTC, 202 F.3d 926 (7th Cir.
2000).
Asylum cases pose thorny challenges in evaluating
testimony. Applicants regularly tell horrific stories that,
if true, show past persecution and a risk of worse to
come. But these stories rarely are susceptible to documen-
tary proof, because persecutors don’t publish records of
their misdeeds. (Though they sometimes keep such records,
they remain secret until the regime has fallen.) Countries
that oppress their citizens may be disordered in other
ways—so that, for example, medical records are unreliable,
and victims cannot use them to demonstrate injuries
received at the hands of police, or may record events in
ways that complicate interpretation (for example, wheth-
er an abortion was compulsory or voluntary may be omit-
ted from the file or noted in a way that foreigners find
opaque).
Most claims of persecution can be neither confirmed
nor refuted by documentary evidence. Even when it is
certain that a particular incident occurred, there may be
doubt about whether a given alien was among the victims.
No. 06-3178 7
Then the alien’s oral narration must stand or fall on its
own terms. Yet many aliens, who want to remain in the
United States for economic or social reasons unrelated
to persecution, try to deceive immigration officials. Often
they are coached by friends or organizations that disap-
prove of this nation’s restrictions on immigration and
do what they can to help others remain here. Occasionally
the coaches (like smugglers who provide transportation
and bogus credentials) do this for pay rather than out of
friendship or commitment. How is an immigration judge to
sift honest, persecuted aliens from those who are feigning?
The belief that many people form from watching televi-
sion and movies—that this can be done by careful atten-
tion to a witness’s demeanor—has been tested and re-
jected by social scientists. Looking for mannerisms, hes-
itations, and perspiration is the method of the lie detector
without the polygraph machine. In a large-scale test of lie-
detecting abilities, in which people told matched pairs of
true and false stories, a television audience (which had
access to the speakers’ demeanor) did no better than chance
at separating truth from fiction, while newspaper readers
spotted the lie 64% of the time and people listening to the
radio got it right 73%. Richard Wiseman, Quirkology: How
We Discover the Big Truths in Small Things 50–81 & refer-
ences at 287–90 (2007). In other words, if you want to find
a liar you should close your eyes and pay attention to what
is said, not how it is said or what the witness looks like
while saying it. See Stephen Porter & John C. Yuille, The
Language of Deceit: An Investigation of the Verbal Cues to
Deception in the Interrogation Context, 20 L. & Human
Behavior 443 (1996); Michael J. Saks, Enhancing and Re-
straining Accuracy in Adjudication, 51 L. & Contemp. Probs.
243, 263–64 (Aut. 1988). And even then the error rate is
high.
8 No. 06-3178
So what gives the liar away? Wiseman’s book recounts
what is known about this subject. The major clue, apart
from factual gaffes and inconsistencies that amount to
confessions, is the amount of detail. “When it comes to
lying, the more information you give away, the greater
are the chances that some of it will come back to haunt
you. As a result, liars tend to say less, and to provide
fewer details”. Id. at 58–59. What’s more, “[l]iars often
try to distance themselves psychologically from their
falsehoods, and so they tend to include fewer references
to themselves, and their feelings, in their stories.” Id. at
59. Truth-tellers have normal amounts of memory failure.
But “[w]hen it comes to relatively unimportant informa-
tion, [liars] seem to develop super-powered memories
and often recall the smallest of details. In contrast, truth-
tellers know that they have forgotten certain details and
are happy to admit it.” Id. at 59–60. In a nutshell: details
matter, and the story’s periphery may expose a liar. This
is not a novel point; our opinion in Carradine v. Barnhart,
360 F.3d 751, 753 (7th Cir. 2004), says much the same
thing, in reliance on these empirical findings.
In immigration cases an additional set of clues may be
available. An alien who is repeating a story fed to him by
handlers may be able to testify up to a certain point
but then run out of information at the place where the
briefing stopped. The IJ suspected that of Mitondo, who
professed ignorance about travel documentation at the
first hearing, then recited a detailed story on this topic
at the second hearing.
The immigration judge paid close attention to the de-
tails of Mitondo’s story, which did not hang together
even after its amendment. Mitondo’s current explana-
tion for the shortcomings—that he was confused or
No. 06-3178 9
nervous—is generic and would make it impossible to
disbelieve any story, however fanciful. The IJ was
not obliged to believe that Mitondo was too jittery to pro-
duce an internally consistent story. Substantial evidence
supports the agency’s decision that he is not credible.
When documentary proof one way or the other is un-
available, the agency must use the details of an alien’s
story to make an evaluation of its truth. Section
1158(b)(1)(B)(iii) permits it to do so, using whatever
combination of considerations seems best in the situa-
tion at hand. This is not to say that an IJ may make irratio-
nal assumptions about how dictators subjugate their
citizens, see Banks v. Gonzales, 453 F.3d 449 (7th Cir. 2006),
or how the society of a foreign nation operates, see
Pramatarov v. Gonzales, 454 F.3d 764 (7th Cir. 2006); Grupee
v. Gonzales, 400 F.3d 1026 (7th Cir. 2005); Zhen Li Iao v.
Gonzales, 400 F.3d 530 (7th Cir. 2005). Those are subjects
on which proof is available. Once the background
facts about the alien’s native land have been assembled,
however, and a question remains about whether the
applicant is among that nation’s victims, §1158(b)(1)(B)(iii)
permits the agency to make a decision despite the irreduc-
ible uncertainty in any evaluation of oral testimony.
Mitondo’s other arguments were not presented to the
Board of Immigration Appeals and have been forfeited.
The petition for review is denied.
USCA-02-C-0072—4-24-08