Selamawit Kifleyesus v. Alberto Gonzales ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3304
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Selamawit Kifleyesus, *
*
Petitioner, *
* Petition for Review of an Order of
v. * the Board of Immigration Appeals.
*
*
Alberto Gonzales, Attorney General of *
the United States, *
*
Respondent. *
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Submitted: June 16, 2005
Filed: September 12, 2006
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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
MELLOY, Circuit Judge.
Selamawit Kifleyesus, an Eritrean citizen, petitions for review of an order of the
Board of Immigration Appeals. In the order, the Board found that she was not
credible; denied her application for asylum, withholding of removal and relief under
the Convention Against Torture; and found that her application was frivolous. We
deny the petition.
I. Background1
The petitioner entered the United States at Detroit on July 6, 2000, on a 90-day
nonimmigrant fiancé visa. She was authorized to stay in the United States through
October 5, 2000. She did not marry her fiancé, and she overstayed her visa. On July
17, 2001, the INS served the petitioner with a notice to appear charging removability.
In a first hearing, on September 27, 2001, the petitioner conceded removability
and sought asylum, withholding of removal, relief under the Convention Against
Torture and, in the alternative, voluntary departure. The IJ designated Eritrea as the
country of removal.
On January 7, 2004, the IJ held another hearing, received evidence, permitted
the petitioner to amend her asylum application, and received testimony from the
petitioner. The petitioner amended her asylum application regarding her education,
employment, and places of residence in the United States. She then declared and
swore that contents of the application were true. The petitioner did not amend several
1
The record in this case is a mix of admittedly false statements, statements that
an immigration judge (“IJ”) rejected as false but that the petitioner maintains are true,
and explanations from the petitioner for the false statements. The explanations for the
false statements are based on the assertion that the petitioner was raped by a police
officer in Sudan while displaced from her native Eritrea and that she was eventually
mistreated and abused by her fiancé in the United States. The petitioner claims that
her situation as a rape victim and a victim of domestic abuse made her particularly
dependent upon, and subject to manipulation by, the fiancé, and that all false
statements and omissions in her application and testimony are attributable to his
advice and her desire not to disclose the rape. Based on this record, the IJ made some
express findings of fact, but did not clearly articulate findings as to every aspect of the
petitioner’s history. Accordingly, we find it necessary to describe the evidence as it
was presented to the IJ and to discuss the infirmities that the IJ identified in
petitioner’s evidence.
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items on her asylum application even though she later admitted that these items were
false.
In her testimony at the January 7, 2004 hearing, the petitioner described the
following history. She is an Eritrean citizen who was born in an area of Ethiopia that
eventually became Eritrea. She left the country with her family in 1978, at the age of
eight, during a time of civil war. The family fled to Kassala, Sudan where the
petitioner spent the remainder of her childhood and graduated from high school. She
received her education in schools run by members of a political group, the Eritrean
Liberation Front (“ELF”). Her parents were members of the ELF, and she eventually
joined and became active in the group. In 1988, after high school, she moved to
Khartoum, Sudan, received vocational training, and obtained a job as a secretary at a
YMCA. She worked in that capacity for three years. The petitioner’s family returned
to Eritrea in 1992 when Eritrea obtained its independence from Ethiopia. The
petitioner remained in Sudan.
While in Sudan, she met a man named Mehretab Abraha. Mr. Abraha moved
to Egypt to attend college and eventually moved to the United States and became a
United States citizen. The petitioner stated she remained in Sudan until November
1996, at which time she returned to Eritrea and lived in hiding until April 1998. She
did not explain what she did between the time that she stopped working as a secretary
in Khartoum and the time that she returned to Eritrea in 1996. She left Sudan for
Eritrea in order to procure an Eritrean passport so she could travel to the United States
to marry Mr. Abraha.
The petitioner claimed that while in Eritrea between 1996 and 1998, she lived
in hiding because her active participation in the ELF made her a target of the Eritrean
government. She did not, however, claim that her mother lived in hiding or was
targeted for having previously been active with the ELF. The petitioner also claimed
that she feared harm from the government of Eritrea and could not obtain an Eritrean
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passport or identification card due to her failure to participate in compulsory national
service. She does not claim that she actually suffered any harm during that time.
She claimed that, in April 1998, she fled to Ethiopia where she lived in hiding
for six months with an uncle and attempted to obtain an Ethiopian passport.
Eventually, the uncle arranged for a passport and travel to Germany with a Somali
businessman. She then traveled to Germany where she lived from September 1998
until July 2000. While there, she met other Eritreans and became active in a local
branch of the ELF. She applied for an Eritrean passport at the Eritrean embassy, but
her application was denied. She applied for and was denied asylum in Germany. She
did not state why Germany denied her application for asylum. She claimed to have
filed an appeal of the German decision but to have withdrawn the appeal in order to
obtain German travel documents that would allow her to join Mr. Abraha, by then her
fiancé, in the United States. The petitioner testified that she and Mr. Abraha originally
had planned to marry in Germany before she traveled to the United States, but that he
changed the plan after she arrived in Germany and decided instead to apply for a
fiancé visa for her admission to the United States.
When she arrived in the United States, she stayed with Mr. Abraha’s sister. She
stated that Mr. Abraha refused to marry her and instead insisted that she marry his
older brother. She claimed that when she refused to marry his brother, Mr. Abraha
became angry, held her down, tied her in rope, demanded that she give him her
documents and photos, and then forcefully took her photos and documents. In fact,
she filed a domestic violence complaint against him and obtained a protective order
from law enforcement in Minnesota. The immigration judge noted at the January 7
hearing that she had read the materials and the order arising from the domestic
violence complaint.
The petitioner then stated that she was active in the ELF in Minnesota and had
participated in numerous ELF events throughout the United States. She also described
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the basis for her fears of persecution if returned to Eritrea. She claimed her nephew
lives in hiding with her mother and sleeps on the roof to avoid detection from officials
who come looking for him every morning. She also claimed that her brother and
brother-in-law were forced to participate in national service in Eritrea. She did not
claim that only ELF members were forced into service. Instead, she admitted that all
Eritreans within a certain age range are required to participate in national service. She
identified national service as a reason she did not want to return to Eritrea. She stated
that the government of Eritrea knew of her participation in the ELF outside Eritrea and
that the government of Eritrea indefinitely detained and killed ELF members.
At the hearing, the IJ had in her possession letters and supporting evidence
received from Mr. Abraha. These letters accused the petitioner of lying in the asylum
application. In particular, the letters contradicted the petitioner’s claims about her past
countries of residence, her allegiance to the Eritrean government, and her claim that
Mr. Abraha had called off the engagement. Mr. Abraha’s letters stated that the
petitioner had not lived in Sudan for the entire period claimed, but rather, had lived
in Doha, Qatar from 1993 to 1998 under the assumed Islamic name Selma Hiyabu.
Supporting documents included a cancelled check, envelopes from Selma Hiyabu, a
“free of marriage” contract for the petitioner obtained from the government of Eritrea,
and a birth record and census and civil status documents from Eritrea. Letters from
Mr. Abraha accused the petitioner of refusing to marry him and of having an affair
with an Eritrean man that she met in Germany. The letters stated that she traveled to
Germany via Italy and Mr. Abraha had paid for her travel.
The IJ asked the petitioner if she had ever lived in Italy or Qatar or heard the
name Selma Hiyabu. The petitioner answered no. The IJ then explained the letters
and documents that were in the file. It was unclear whether the materials had any
basis in fact or whether Mr. Abraha had submitted them as an act of vindictiveness in
relation to the earlier domestic violence claim. Accordingly, the IJ continued the
hearing to permit the petitioner time to review the materials.
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At a third hearing, on March 18, 2004, the petitioner revised her claims
regarding her personal history and admitted that aspects of her prior testimony and
application were false. She stated she was raped in Sudan by a police officer when
she was briefly incarcerated. She stated she felt unsafe after the rape and decided to
leave Sudan. She did not report the crime due to fear of another assault by the police.
Also, she told no one other than Mr. Abraha that the rape had occurred. She stated
that she feared returning to Eritrea because of her affiliation with the ELF and because
she was opposed to participating in mandatory national service in Eritrea. In the
asylum proceedings, she had not previously disclosed the fact that she had been
incarcerated in Sudan.
She then stated that, through an employment agency, she obtained work as a
nanny and domestic servant for a royal family in Qatar and traveled to Qatar on a
Ethiopian passport in 1993 under the assumed name, Selma Hiyabu. She lived in
Qatar and worked for the family until 1998. She claimed that she returned to Eritrea
briefly between May and September 1996, when she lived in hiding and attempted to
obtain an Eritrean passport but was denied due to her refusal to participate in national
service. She claimed that she had heard stories of women being sexually abused while
in national service or returning from national service pregnant. She explained that she
lied on her United States asylum application and in the prior hearing because Mr.
Abraha had told her she would be denied asylum if she admitted to having lived in
Qatar.
She explained her journey from Qatar to the United States was an effort that she
undertook at the instruction of Mr. Abraha. She admitted that she had not lived in
Ethiopia immediately before traveling to Germany, but rather, had traveled with the
Qatari family to Germany and fled from them at the airport. She also explained that,
through a series of letters in 1995, the petitioner and Mr. Abraha agreed to marry and
that he believed it would be easier to marry in Germany than Qatar since he was a
Christian and Qatar was a Muslim nation. She also explained that her mother was able
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to obtain the birth certificate and “free of marriage” certificate from Eritrea. She
claimed that Mr. Abraha had taken these documents from her during the episode of
domestic violence and had not returned them.
The petitioner claimed that the only thing she had failed to disclose in her
asylum application was the fact that she had lived in Qatar. The petitioner denied
having traveled to Germany via Italy, although a Western Union receipt suggested that
she had received money from Mr. Abraha consistent with his claim to have provided
money for an airline ticket from Italy to Germany. When pressed by the IJ for
evidence or corroboration of her claim regarding Mr. Abraha’s demand that she marry
his brother, the petitioner stated that she had no corroborating evidence. She claimed
that she had wanted to marry Mr. Abraha and that if she didn’t want to marry him, she
could have married “the guy in Germany when he asked me.”
The petitioner also admitted that she had spent two weeks in Eritrea in 1992 at
the time that her father died. She then admitted that national service did not begin
until 1994 and that she did not encounter difficulty during her visit in 1992. She also
admitted that she obtained an Eritrean national ID and voted in 1993. In addition, she
stated that her nephew has lived with her mother since 1992 and has not participated
in national service. Although the petitioner initially stated that government officials
came to her mother’s house every morning to look for the nephew, she later stated that
they only visited “once in a while.” She stated that the nephew had been eligible for
service for two years. She claimed initially that the Eritrean government would know
of her participation in the ELF because she participated in demonstrations that were
video-taped. She later stated, however, that she did not know if the government had
knowledge of her participation in ELF activities since 1993.
The petitioner stated that she could not seek asylum in Qatar because she was
merely brought there to work and was not allowed to leave the employing family’s
compound. There was, however, documentary evidence regarding her receipt of a
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funds transfer at a money exchange in Doha, Qatar, suggesting that she could move
about outside the employing family’s compound. She admitted that when she traveled
to Eritrea in 1996, she did so on a false Ethiopian passport and that she stopped in
Dubai and got off the plane in Dubai, but did not apply for any form of protected
status in that country.
The IJ then asked her about her German asylum application. The petitioner
stated that she failed to disclose the rape in the German application, that she did have
a copy of the German application, and that she didn’t provide it in her United States
immigration proceedings because she didn’t know it was important. She stated that
she had been in possession of the German application for three years. The IJ then
continued the hearing to permit translation of the German application. The IJ refused
the petitioner’s request to have certain witnesses testify, holding that their testimony
would be redundant with affidavits and other testimony.
A fourth hearing was held on April 19, 2004. At that time, the Department of
Homeland Security requested a finding that the petitioner’s application for asylum was
frivolous. In her testimony at this hearing, the petitioner stated that the reason she
could not obtain an Eritrean passport in 1992, following her alleged rape in Sudan,
was that Eritrea was not yet an independent country. She also elaborated on her travel
to, and time spent in, Germany. She explained that she fled from the employing
family at the airport in Germany, met an Eritrean man, and with his aid, established
contact with one of her sister’s in-laws, with whom she stayed. She explained further
that Mr. Abraha advised that they marry in Germany, but she didn’t have the
necessary papers and she applied for asylum in Germany while waiting to obtain the
appropriate documents from Eritrea. She admitted that she lied in her German asylum
application about living in Ethiopia and claimed that Mr. Abraha had advised her to
lie. She also elaborated on the Minnesota domestic violence incident and admitted
that she claimed in the domestic violence proceedings that Mr. Abraha had wanted to
continue the relationship with her.
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The IJ expressed clear frustration with the false statements the petitioner had
made. She ultimately found the petitioner non-credible and denied all relief based on
this credibility finding. In the alternative, the IJ found that there was no evidence of
past persecution and no evidence to support the petitioner’s claimed fear of future
persecution if returned to Eritrea. Based on the credibility assessment and the fact that
the petitioner had received warnings throughout the immigration proceedings
regarding the consequences of filing a frivolous application, the IJ found the
application frivolous. In making the credibility assessment, the IJ expressly rejected
the findings set forth in the opinion that accompanied the protective order related to
the domestic violence in Minnesota. The IJ stated that she did not believe that Mr.
Abraha had called off the marriage or that he had tied the petitioner in rope. Rather,
the IJ found that the record “reflected that it was the respondent who didn’t go through
with the marriage after Mr. Abraha brought her to the United States.”
The petitioner appealed to the Board of Immigration Appeals. The Board found
that the IJ’s credibility finding was “not clearly erroneous.” The Board stated:
We particularly note that the respondent’s admitted dishonesty regarding
living in Qatar for several years would implicate facts bearing on her
eligibility for asylum. For example it bears directly on her original claim
of having lived in fear and hiding in Eritrea for a year and a half and in
Ethiopia for 5 months, an integral part of her overall story, when she was
really living in safety in Qatar during that period with a stay of only 3
months in Eritrea.
The Board proceeded to expressly adopt the IJ’s finding that the application was
frivolous.
In her petition to our court, the petitioner presents explanations for her false
statements. She states that all of the false statements were made in an effort to
construct a coherent story that would eliminate the need to disclose or talk about the
rape in Sudan. She also stresses the degree to which Mr. Abraha held sway over her
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actions. She argues that her false statements were not material and that she is entitled
to relief. In support of her arguments, she presents affidavits from psychologists who
describe the impact of the rape and the petitioner’s dependancy on Mr. Abraha.
II. Discussion
We have repeatedly stated that we owe considerable deference to the credibility
assessments of immigration judges. See Mamana v. Gonzales, 436 F.3d 966, 968 (8th
Cir. 2006) (“[A]n IJ’s adverse credibility findings ‘are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’”) (quoting
Turay v. Ashcroft, 405 F.3d 663, 668 (8th Cir. 2005)); Ibrahim v. Gonzales, 434 F.3d
1074, 1079 (8th Cir. 2006) (“We defer to the IJ’s findings regarding the petitioner’s
credibility if those findings are supported by specific, cogent reasons.”). Here, the
credibility assessment enjoys sufficient explanation and support.
There are two possible interpretations of the record in this case. The one urged
by the petitioner is that she was a repeat victim of abuse whose false statements were
the product of bad advice dispensed by an abuser who held a position of control over
her actions. Under this view of the facts, the petitioner endured a life of hardship,
finally arrived in the United States, and was abused by the man she intended to marry
after he inexplicably demanded that she marry his brother. The other interpretation,
the one adopted by the Board, is that the petitioner is a woman who repeatedly
demonstrated independence, arrived in the United States, refused to marry her fiancé,
and spun a false tale of living in hiding to exaggerate her fear of persecution.
Although we are not unsympathetic towards the petitioner and although her
explanation enjoys some support, the interpretation adopted by the IJ and the Board
is adequately supported by the record, and as such, we must accept the Board’s
interpretation, credibility assessment, and denial of relief. 8 U.S.C.A. §
1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992) (mandating that
we accept the Board’s findings unless the record “compels” the opposite result).
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Aside from the issue of credibility, we note that the IJ’s independent finding of
no past persecution nor likelihood of future persecution is supported by the record.
The petitioner experienced no harm at the hands of Eritrean officials or sympathizers,
much less persecution due to a protected basis. Further, her claimed fear of future
persecution related to speculative general allegations regarding the treatment of ELF
supporters, and she admitted that she did not know if the government of Eritrea was
aware of her participation in the ELF since 1993. Finally, her claimed fear of future
persecution also related to her desire to avoid national service. The petitioner’s desire
to avoid compulsory service is not a valid basis for finding a fear of future persecution
because the compulsory service in this case is unrelated to a protected basis such as
race, religion, or political opinion. See, e.g., Elias-Zacarias, 502 U.S. at 481-83;
Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003) (rejecting an asylum claim
where “guerillas were simply trying to fill their ranks and were not concerned with
[the petitioner’s] political beliefs”).
The more difficult issue we face is whether it was appropriate for the Board to
find the petitioner’s asylum application frivolous. Section 208(d) of the Immigration
and Nationality Act (the “Act”), 8 U.S.C. § 1158(d), as amended by the Immigration
Reform and Immigrant Responsibility Act of 1996, provides that if an asylum
applicant receives notice, inter alia, of the consequences of filing a frivolous asylum
application, and if the attorney general subsequently determines that the applicant
knowingly filed a frivolous application, the applicant “shall be permanently ineligible
for any benefits under this chapter.” Id. § 1158(d)(4), (6). Regulations promulgated
under the Act explain with more particularity what is meant by the term “frivolous.”
8 C.F.R. § 208.20 provides:
[A]n asylum application is frivolous if any of its material elements is
deliberately fabricated. Such finding shall only be made if the
immigration judge or the Board is satisfied that the applicant, during the
course of the proceedings, has had sufficient opportunity to account for
any discrepancies or implausible aspects of the claim.
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The Second Circuit recently addressed the issue of frivolousness, described the
requirements for a showing of frivolousness, and reviewed the limited authority from
other circuits interpreting this regulation. Liu v. U.S. Dept. of Justice, 455 F.3d 106,
117-18 (2d Cir. 2006) (remanding to the Board with instructions to identify the
standards used to find an application frivolous). The Liu court noted that the
regulation identifies three separate elements for a finding of frivolousness: “an alien
has (1) ‘deliberately fabricated’ (2) a ‘material’ element of his asylum application, and
(3) has been given a ‘sufficient opportunity’ to address the perceived problems with
his claim.” Id. at 113 (quoting 8 C.F.R. § 208.20).
Beyond the text of the regulation, the Second Circuit in Liu identified three
“emergent standards” for finding applications frivolous. Id. at 113-15. First, the court
noted that in the Third and Eleventh Circuits, more than an adverse credibility finding
is needed to support a finding of frivolousness. Id. at 113; Scheerer v. U.S. Att. Gen.,
445 F.3d 1311, 1318 (11th Cir. 2006); Muhanna v. Gonzales, 399 F.3d 582, 589 (3d
Cir. 2005). Next, the court noted that in the Ninth Circuit a petitioner must be given
a “sufficient opportunity to account for” the specific concerns upon which the finding
of frivolity rests. Liu, 455 F.3d at 113-14 (quoting 8 C.F.R. § 208.20); Farah v.
Ashcroft, 348 F.3d 1153, 1158 (9th Cir. 2003). Finally, the court reviewed the facts
of several cases in which circuit courts affirmed findings of frivolousness. Liu, 455
F.3d at 114-15. Based on those affirmances, the court suggested that mere “garden-
variety inconsistencies,” id. at 115, could not justify a finding of frivolousness, but
instead, “concrete and conclusive evidence of fabrication is needed to warrant a ruling
that renders an alien permanently ineligible for immigration benefits in the United
States.” Id. at 114; c.f. Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005)
(upholding a finding of frivolousness where a hospital identified medical records
submitted by the petitioner as fraudulent); Selami v. Gonzales, 423 F.3d 621, 626-27
(6th Cir. 2005) (upholding a finding of frivolousness where a comparison of copied
documents provided by a petitioner to true copies of the original documents
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demonstrated convincingly that the petitioner had submitted forged documents); Efe
v. Ashcroft, 293 F.3d 899, 902 n.1, 908 (5th Cir. 2002) (upholding a finding of
frivolousness where dental records conclusively disproved a petitioner’s claim about
his age at the time of his entry to the United States); Barreto-Claro v. U.S. Att. Gen.,
275 F.3d 1334, 1339 (11th Cir. 2001) (upholding a finding of frivolousness where a
petitioner admitted to having lied in a first, related asylum application).
While we find Liu instructive, we find it unnecessary to adopt or approve any
of the specific “emergent standards” for the application of Rule 208.20—all would be
satisfied by the present facts. It is undisputed that the petitioner filed a false
application, failed to modify that application when given the chance, swore to the truth
of the application, lied in response to the IJ’s questions, and subsequently admitted to
the falsity of testimony and her application. Accordingly, there were fabrications.
She was given “sufficient opportunity to account for any discrepancies or implausible
aspects of [her] claim,” before the IJ, but admitted rather than denied the falsity of her
testimony regarding time spent in Eritrea.
The petitioner did present explanations regarding her state of mind. Also she
described her false statements as side issues that did not bear directly on her claims
for relief. As such, she appears to base her challenge on the deliberateness and
materiality elements under Rule 208.20. Regarding deliberateness, we are constrained
by the Board’s finding as to credibility and the Board’s rejection of the petitioner’s
claim that Mr. Abraha overbore her will. These findings were supported by
substantial evidence. See Ignatova, 430 F.3d at 1214 (applying a substantial
evidence standard to a finding of frivolousness by the Board). As such, we must reject
the argument that the petitioner’s state of mind made her fabrication something less
than deliberate. Also, we agree with the Board that her false statements were material.
Her claims regarding time spent in hiding in Eritrea and Ethiopia relate directly to the
issue of past persecution and also to the issue of the likelihood of future persecution.
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We affirm the Board and deny the petition for relief.
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