Helen Adaeze Obah v. Alberto Gonzales , 241 F. App'x 348 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1594
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Helen Adaeze Obah, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, * [UNPUBLISHED]
*
Respondent. *
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Submitted: June 14, 2007
Filed: June 20, 2007
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Before BYE, RILEY, and BENTON, Circuit Judges.
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PER CURIAM.
Helen Adaeze Obah, a Nigerian, entered the United States without inspection.
The government began removal proceedings in 2001. After four evidentiary hearings,
the immigration judge denied asylum, withholding of removal, and relief under the
Convention Against Torture, ordering her removed to Nigeria. The Board of
Immigration Appeals affirmed the IJ, dismissing Obah’s appeal. This court affirms.
I.
The government argues that “this court lacks jurisdiction to consider whether
petitioner is eligible for asylum.” “To be eligible for asylum, an alien must
demonstrate by clear and convincing evidence that she filed an application for asylum
within one year of arriving in the United States.” Aden v. Ashcroft, 396 F.3d 966, 968
(8th Cir. 2005). See 8 U.S.C. §§ 1158(a)(2)(B). Obah filed for asylum on February
11, 1999 – the issue is when she arrived in the United States. Obah claims she arrived
on January 29, 1999. But the IJ found her “utterly incredible,” and her accounts of
entry into the United States are inconsistent and unsupported:
In her written statement, she’s dressing up like a man to leave
[Nigeria]. In her testimony in Court she can’t recall doing that. We have
no tickets, no boarding passes, no luggage claims, no travel documents
for certain, to show how respondent left Nigeria and came to the United
States. We simply have the mysterious Madam Coker who apparently
handled all the arrangements. The respondent entered in a van, using a
Nigerian passport. She was never questioned. The Court finds claims
such as these to be very questionable.
The IJ concluded: “The Court does not believe that the respondent has met her burden
of proof with the documentation and testimony offered. . . . the absence of solid
documentary proof of her entry is a further bar to her receiving asylum.”
Like the petitioner in Aden, Obah claims her testimony on this issue was
credible, and that the IJ erred. But section 1158(a)(3) is clear: “no court shall have
jurisdiction to review any determination of the Attorney General under” section
1158(a)(2). The IJ’s finding that Obah failed to meet the one-year requirement is a
“determination of the Attorney General under” section 1158(a)(2)(B). Therefore, this
court lacks jurisdiction to consider her asylum claim. See Aden, 396 F.3d at 968.
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II.
Obah does not qualify for withholding of removal, or relief under the
Convention Against Torture.
Withholding of removal is available “if the Attorney General decides that the
alien’s life or freedom would be threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3). “The standard for mandatory withholding of removal is
stringent, a ‘clear probability that he or she will face persecution in the country to
which he or she will be deported.’” Ruzi v. Gonzales, 441 F.3d 611, 614-15 (8th Cir.
2006) (quoting Eta-Ndu v. Gonzales, 411 F.3d 977, 986 (8th Cir. 2005)). “Under this
standard, the petitioner must show that ‘more likely than not’ he or she would be
subjected to persecution on account of one (or more) of the statutory grounds.” Id. at
615.
“If the immigration judge determines that the alien is more likely than not to be
tortured in the country of removal, the alien is entitled to protection under the
Convention Against Torture.” 8 C.F.R. 1208.16(c)(4). The alien bears the burden of
proof for CAT protection. 8 C.F.R. 1208.16(c)(3).
Obah testified she was persecuted and tortured in Nigeria in the 1990s for
opposing the military government of General Sani Abacha. Specifically, Obah claims
she was arrested four separate times for engaging in pro-democracy activities, and
while in custody was beaten, repeatedly gang-raped, and otherwise abused by her
captors, who worked for the government. She fears the same treatment if returned.
As the final agency decision, the Board’s order is the subject of this court’s
review. Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005). Because the Board
adopted the IJ’s findings, this court also reviews the IJ’s decision and order as part of
the final agency decision. Id. This court affirms a decision supported by “reasonable,
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substantial, and probative evidence.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). “To reverse the BIA finding we must find that the evidence not only supports
that conclusion, but compels it.” Id. at 481 n.1 (emphasis in original). In other words,
the Board’s factual findings 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 the Board’s legal conclusions de novo, but defers to its interpretation of the
Immigration and Nationality Act. See Nyirenda v. INS, 279 F.3d 620, 623 (8th Cir.
2002).
This court agrees with the IJ: “If the respondent had been subjected to the abuse
she described in her testimony and in some of her documents, the Court would very
likely grant her relief.” This court also agrees that “[t]he real issues in this case
entirely turn on [Obah’s] credibility.”
The IJ found Obah “utterly incredible.” Obah offered purported membership
cards for several political organizations, as well as photocopies of a Nigerian police
wanted poster and a criminal recognizance issued for her by the police. After
commenting on “some very definite similarities between the typed [sic] used on all of
the respondent’s political identity cards and the Nigerian police documents,” the IJ
found it “utterly implausible that one office would issue identity cards for three
different political organizations.” One card misspells the word “bearer.” The wanted
poster “uses the old style of type used on ‘old west’ wanted posters,” and “the word
military in the middle of the page is spelled with two L’s.” A handwritten statement
from Obah also misspells “military” with two Ls. The poster also misspells the words
“Nigerian” (N-I-G-I-R-I-A-N) and “physical” (P-H-I-S-I-C-A-L), leading the IJ to
describe it as “an extremely shaky document.” Oddly, the criminal recognizance
identifies Obah as the complainant and the government of Nigeria as the defendant,
using “similar type face to all the previously mentioned documents” and misspelling
“military” with two Ls. The IJ viewed the recognizance as “another fraudulent
document prepared on the same typewriter as the political cards.” The Department
of Homeland Security’s Forensic Document Laboratory concluded that Obah’s
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documents “could not be effectively authenticated” and “should be considered
suspect.” Describing the poster and the recognizance as “just laughable,” the IJ
concluded that “this Court has every reason to believe that this respondent phonied up
these documents herself.”
The documents’ origin is similarly dubious. First, Obah testified that a friend
went to Obah’s husband’s house in Lagos, retrieved “all the documents I brought [to
the hearing],” and gave them to her before she left Nigeria in January 1999. At the
second hearing, Obah testified that she got the wanted poster and the criminal
recognizance from someone named “Bukky” or “Bukola,” who traveled to Nigeria and
retrieved these documents for Obah. The IJ was appropriately skeptical about “the
ubiquitous Bukky”:
[S]ome person that the respondent just happened to run into at the Mall
of America, and who was willing to travel back to Nigeria to obtain
documents or information for the respondent. The mysterious nature of
this person, including her never leaving means for the respondent to
contact her, or a last name to assist in locating her, indicates just what a
preposterous story this is.
At the third hearing, Obah testified that another friend gave her the photocopy of the
recognizance before she left Nigeria. None of these people testified.
Obah produced a facsimile copy of a letter confirming her membership in the
Campaign for Democracy. The IJ is justified in concluding that “the flaming fraud
of the documents discussed previously [membership cards, wanted poster, criminal
recognizance], heavily outweighs the one document that she has presented that has
any hope of validity.” See, e.g., Sterkaj v. Gonzales, 439 F.3d 273, 277 (8th Cir.
2006) (“An applicant’s presentation of a fraudulent document to prove a central
element of the claim in an asylum adjudication . . . in the absence of an explanation
regarding such presentation[] creates serious doubts regarding the [applicant’s] overall
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credibility. [S]uch fraud tarnishes [the applicant’s] veracity and diminishes the
reliability of his other evidence.”) (citations omitted) (brackets in original).
The IJ “is in the best position to make credibility findings because he [or she]
sees the witness as the testimony is given.” Gemechu v. Ashcroft, 387 F.3d 944, 947
(8th Cir. 2004). For this reason, “we defer to the IJ’s credibility finding when it is
supported by specific, cogent reasons for disbelief.” Onsongo v. Gonzales, 457 F.3d
849, 852 (8th Cir. 2006) (citing Eta-Ndu, 411 F.3d at 982). Here, the IJ’s credibility
finding is supported by many specific, cogent reasons to doubt Obah’s credibility.
Obah’s “inconsistent testimony” and “suspect corroborating evidence” support the IJ’s
finding. See id. at 853. Far from thinking that “a reasonable factfinder would be
compelled by the record to credit the disputed testimony,” this court finds the IJ’s
decision persuasive. See id.
Obah offered testimony from Dr. Patricia Shannon with the Center for Victims
of Torture. On appeal, Obah complains that “the IJ completely disregarded the
photographs of Obah’s scars/injuries, the CVT reports concerning her psychological
problems and the torture she suffered, and Dr. Shannon’s testimony.” The
photographs show that Obah has scars on her body and is missing a tooth – they do
not prove the cause was torture. The information contained in the reports, and the
testimony of Dr. Shannon, are based on statements made by Obah herself. Obah’s
“overall credibility” is tarnished by the “flaming fraud” of her other documents. See
Sterkaj, 439 F.3d at 277.
III.
The judgment of the Board is affirmed.
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