Moussa Fofana v. Eric H. Holder, Jr. , 704 F.3d 554 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 11-3870
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Moussa Fofana
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr.
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 14, 2012
Filed: January 29, 2013
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Before SMITH, BEAM, and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Moussa Fofana petitions for review of the Board of Immigration Appeals' (BIA)
decision denying him asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Having jurisdiction under 8 U.S.C. § 1252(a),
this court denies the petition.
I. BACKGROUND
A. Testimony
Fofana is a native and citizen of the Republic of Guinea, born in 1970. He is
a member of the Malinke ethnic group. Fofana testified that while in Guinea, he was
the president of a neighborhood youth association and organized unemployed youth
to create a non-governmental organization (NGO). The objectives of the association
were to plan events and meetings around culture, sports and arts. In 1996, Fofana
additionally joined the Rally of People in Guinea (RPG). Fofana testified that the
RPG was a political party that had no ethnic affiliation. He served in a leadership
capacity in this organization and solicited participants in the RPG from the already-
functioning youth organization.
Fofana testified that he was arrested on April 14, 2002, and again on June 24,
2002, by security officers due to, he believes, his RPG affiliation and his Malinke
ethnicity. He asserted that during each detention, he endured beatings and physical
abuse and, in one instance, was stabbed in the arm with a knife. Fofana sought
medical treatment following his release from the April arrest.
When Fofana was released the second time he moved to his home village of
Kindia where he later obtained a plane ticket and false documents that allowed him
to leave Guinea on December 24, 2002, and enter the United States. Fofana testified
that he traveled to the United States with a smuggler and used a fraudulent passport
to gain admission. Fofana immediately returned the passport and was thus unable to
produce corroborating evidence of his actual admission date to the United States, or
his manner of entry, during his hearings before the Immigration Judge (IJ).
At Fofana's initial hearing before the IJ, Fofana was unable to authenticate or
corroborate his submitted documents. Given the IJ's "serious concerns" regarding the
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documents submitted on Fofana's behalf, the IJ was interested in having the Forensic
Document Laboratory (FDL) report on the documents. A delay to accomplish this,
noted the IJ, also benefitted Fofana because it gave Fofana an extra opportunity to
present his brother's testimony, which Fofana had failed to do at the November 2,
2006, hearing. When the parties reconvened, Fofana submitted an additional country
report, and the IJ admitted the FDL report. The FDL report found that none of the
enumerated documents could be effectively authenticated, and a handwriting
comparison was not possible with the information provided. Fofana did not submit
his brother's testimony at the subsequent hearing.
B. IJ's Credibility Findings
An IJ denied Fofana's applications based on an adverse credibility finding. In
its order, the IJ painstakingly highlighted the inconsistencies and implausibilities in
Fofana's applications, testimony, and hearing exhibits. Most prevalent of the
inconsistencies were Fofana's alleged arrest dates and detentions. Fofana claimed he
was arrested on April 14, 2002, held for two weeks, and that he sought a physician's
care immediately upon release. Yet, the physician's "Forensic Report" Fofana
submitted in support of his claim is dated May 22, 2002, nearly one month after
Fofana's alleged release.
When this particular discrepancy was brought to Fofana's attention, he corrected
his prior testimony, explaining with difficulty that he saw one physician the date of
his release (who was not actually a licensed medical doctor) and then visited a
different doctor. Fofana returned to the second doctor to receive a letter confirming
his treatment, which is the "Forensic Report" submitted to the IJ. Additionally, the
report does not acknowledge that Fofana was beaten at the hands of security officers,
as Fofana alleged before the IJ. The doctor's report notes that Fofana was the victim
of "voluntary or involuntary assault and battery," and was seemingly drafted for
submission to the police, as it states "Hoping you good reception Mr. the Police
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Captain with all the best regards." Fofana testified that he lied to the doctor about the
source of his injuries. The IJ concluded that Fofana's answers defied logic as to the
timing and reasoning behind Fofana's decision to obtain this medical report.
Further, Fofana testified with certainty that the June 24, 2002, arrest occurred
as a result of, and immediately following, the national presidential referendum.
However, multiple human rights reports and other such governmental reports place
the referendum in 2001, not 2002. When confronted with this discrepancy, Fofana
would not confirm the date of the referendum and only reiterated that he was arrested
on June 24, 2002.
Finally, in addition to other discrepancies recognized by the IJ, the IJ noted that
Fofana's demeanor at the hearing in no way bolstered his credibility: "To the contrary,
[Fofana's] demeanor created little confidence in the overall veracity of his claims.
Throughout his November 2006 hearing, the respondent often provided evasive
answers [that] failed to answer very simple questions. When questioned by the
Department, the respondent often became argumentative." Additionally, the IJ noted
that Fofana's testimony lacked sufficient detail in many key areas. Following the IJ's
denial, Fofana appealed to the BIA, which likewise dismissed his appeal.
II. DISCUSSION
"This court reviews the BIA's decision as the final agency action, but to the
extent the BIA adopts the findings of the IJ, this court reviews those findings as part
of the final agency action." R.K.N. v. Holder, 701 F.3d 535, 537 (8th Cir. 2012). An
agency's findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B). This court reviews
decisions on asylum, withholding of removal, and CAT protection under the
"substantial evidence" standard, upholding the decision if it is "supported by
reasonable, substantial, and probative evidence" based on the record as a whole.
Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir. 2005) (internal quotation omitted).
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An IJ's credibility determinations are likewise conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary. R.K.N., 701 F.3d at 537.
Indeed, an agency's credibility findings in particular "are entitled to much weight
because the IJ sees the witness testify and is therefore in the best position to determine
his or her credibility." Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006).
The burden of proof remained on Fofana at all times before the IJ and the BIA
to prove his eligibility for asylum, withholding of removal, and CAT protection. 8
C.F.R. §§ 1208.13(a), 1208.16(b) & (c)(2). The Attorney General, in his discretion,
may grant asylum to any alien who demonstrates that he is a "refugee" within the
meaning of the Immigration and Nationality Act. 8 U.S.C. § 1158(b)(1)(A); Falaja,
418 F.3d at 894. The term "refugee" is defined as an alien "who is unable or unwilling
to return to . . . [his] country [of nationality] 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). Noted above, the IJ
made its determination denying relief based upon its credibility finding. And, in
doing so, the IJ made thorough, specific findings with regard to Fofana's credibility.
On appeal Fofana argues that the basis upon which the IJ questioned his credibility
was de minimis in relation to the record as a whole and that as a result, the court
denied him due process. In essence, Fofana attempts to transform a fact issue on
appeal into a constitutional one.
The Due Process Clause of the Fifth Amendment entitles Fofana to a fair
hearing, which includes "the opportunity to be heard at a meaningful time and in a
meaningful manner." Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007)
(quotation omitted). To establish a due process violation, Fofana "must demonstrate
both a fundamental procedural error and prejudice as a result of the error." Camishi
v. Holder, 616 F.3d 883, 886 (8th Cir. 2010). He is wholly unable to achieve this task
on appeal. Aside from his unconvincing efforts to recharacterize his claims regarding
credibility and persuasiveness as constitutional contentions, Fofana attempts to argue
that the IJ erred by basing its negative credibility finding on a very small percentage
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of the evidence presented. However, Fofana fails this attempt because he does not,
and cannot, argue that the IJ did not consider evidence altogether–the only meaningful
violation of due process he could argue in this vein. See Hanan v. Mukasey, 519 F.3d
760, 764 (8th Cir. 2008) (noting that "an allegation of wholesale failure to consider
evidence implicates due process"). Further, that the noted discrepancies and
inconsistencies allegedly constituted only a small percentage of the overall testimony
and record evidence is of little consequence in the overall analysis. The issue of
consequence is that these discrepancies and inconsistencies relate to the very basis of
Fofana's claimed persecution–the entire thrust of Fofana's claims for relief.
The IJ considered all of the evidence presented and its decision is supported by
reasonable, substantial, and probative information from the record as a whole. The
inconsistencies and discrepancies noted by the IJ in this case were not minor or
peripheral. Fofana's lack of both corroboration and consistency are cogent reasons to
question Fofana's believability and his disagreement with the IJ's factfinding does not
implicate a constitutional infringement. No adjudicator, on this record, would be
compelled to conclude otherwise.
Because Fofana failed to satisfy the lower statutory burden of proof required
for asylum, it follows that he failed to satisfy the higher, clear probability standard of
eligibility required for withholding of removal. 8 C.F.R. § 1208.16(b); Falaja, 418
F.3d at 897. Similarly, as Fofana's CAT protection claim was based on the same
discredited testimony, the agency properly found his lack of credibility fatal to that
application. Esaka v. Ashcroft, 397 F.3d 1105, 1111 (8th Cir. 2005) (noting standard
for relief under the CAT).
III. CONCLUSION
We affirm the denial of asylum, withholding of removal, and CAT relief as
determined by the IJ and BIA, and deny the petition for review on appeal.
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