Legal v. Lynch , 838 F.3d 51 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2529
PIERRE RICHARD LEGAL,
Petitioner,
v.
LORETTA E. LYNCH,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
Carlos E. Estrada on brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Cindy S. Ferrier, Assistant Director,
Tracie N. Jones, Trial Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, on brief for
respondent.
September 23, 2016
HOWARD, Chief Judge. Petitioner Pierre Richard Legal,
a native and citizen of Haiti, asks us to review a Board of
Immigration Appeals (“BIA”) order denying his claims for asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”). The BIA upheld an immigration
judge's (“IJ”) finding that Legal's testimony was not credible
and, thus, that he was unable to establish eligibility for relief.
After careful consideration of the briefs and the record, we deny
the petition.
I.
Legal entered the United States on August 9, 2011 without
a valid entry document and applied for admission. The next day,
a Department of Homeland Security ("DHS") officer interviewed
Legal about his application for admission. During the interview,
Legal said that he understood the interpreter and the questions
asked and that his statements were true and complete.
Legal initially claimed that he departed Haiti for
Mexico on April 20, 2010 to avoid further persecution due to his
political opinion. He explained that he was a "simple member" of
the "Plateform Organisation des Mines" and that members of the
opposing political party, Lavalas, had harassed him. Legal stated
that he had received approximately seven telephonic death threats,
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which began a week before his April 20th departure, but that he
was never physically harmed.
Although Legal had earlier told the DHS officer that he
obtained a visa in May 2010 to travel to Mexico in order to avoid
persecution, later in the interview he claimed that he obtained
the visa in March 2010 in order to "leave the country and find a
job and bring my family." The DHS officer clarified, "[T]he
purpose of you getting a Mexican visa was not to avoid persecution
like you stated previously?" Legal replied that "the purpose was
to leave the country and find work." He admitted that he remained
in Mexico for sixteen months and then attempted to enter the United
States because he "was not doing well in Mexico to take care of
his family."
The DHS commenced removal proceedings against Legal by
filing a Notice to Appear ("NTA") charging him as removable
pursuant to Immigration and Nationality Act § 212(a)(7)(A)(i)(I),
8 U.S.C. § 1182(a)(7)(A)(i)(I). In response, Legal sought asylum,
withholding of removal, and protection under the CAT.
In his asylum application, Legal claimed that he had
suffered past persecution and feared future persecution because of
his work as a grassroots leader in the Konvansyon Inite Demokratik
("KID"), a Haitian political party. He stated that on April 14,
2002, eight years before he left Haiti, he endured a beating at
the hands of five Lavalas members as a result of his involvement
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in the KID. He described a further incident two years later in
which, while he was driving for work, fifteen masked men stole his
car, shot at him, and left him on the street. In his application,
Legal indicated that he began receiving threatening phone calls in
March 2010. He claimed he left Haiti to avoid any further
mistreatment but acknowledged that he left Mexico because he was
not making enough money to support his family.
On March 3, 2014, Legal appeared with counsel before an
IJ for his merits hearing. Legal testified as the only witness,
and his testimony was generally consistent with his asylum
application. Legal contended that he went to Mexico to save his
life and give security to his family; he denied that he went to
Mexico to look for work. Legal admitted that he did not tell the
DHS officer anything about the KID. He claimed, however, that he
did not remember being questioned about any political
organizations, nor did he remember denying that he was physically
harmed in Haiti. He also stated that he may not have understood
the interview questions because he was under stress at the time,
and the interpreter was available only by telephone.
Following the hearing, the IJ denied Legal's claims for
relief. The IJ premised his decision on a finding that Legal's
testimony lacked credibility. The IJ detected a bevy of
discrepancies between Legal's sworn statement to the DHS officer
on the one hand and his written application for asylum,
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supplemental affidavit, and hearing testimony on the other. The
IJ gave more weight to the sworn statement, since it was prepared
immediately upon Legal's apprehension, whereas "his asylum
application was prepared much more recently and after the
respondent had time to come up with the story which he tells
today."
The BIA adopted and affirmed the IJ's decision,
emphasizing that Legal provided inconsistent statements with
respect to the political organization with which he was affiliated
and the extent to which he participated, as well as whether he was
physically harmed as a result. The BIA also agreed with the IJ
that Legal’s sworn statement to the DHS officer was entitled to
more weight than his subsequent representations and that Legal
failed to demonstrate past persecution or fear of future
persecution on account of a protected ground.
This timely petition for review followed.
II.
Legal challenges the BIA's upholding of the IJ's adverse
credibility determination and resulting denial of his claims for
relief. Where, as here, the BIA adopts the IJ's decision and
reasoning, we review both decisions under the deferential
substantial evidence standard. Conde Cuatzo v. Lynch, 796 F.3d
153, 156 (1st Cir. 2015). Under this standard, we will not reverse
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"unless 'the record would compel a reasonable adjudicator to reach
a contrary determination.'" Id. (quoting Ying Jin Lin v. Holder,
561 F.3d 68, 72 (1st Cir. 2009)).
In order to qualify for asylum, an applicant must
establish either past persecution or a well-founded fear of future
persecution if repatriated, on account of one of five enumerated
grounds, including political opinion. See 8 U.S.C. §
1101(a)(42)(A). Although an asylum applicant's own testimony may
be adequate to meet this burden, an IJ may discount or disregard
testimony if the IJ reasonably deems it to be "speculative or
unworthy of credence." Bebri v. Mukasey, 545 F.3d 47, 50 (1st
Cir. 2008) (decided under the prior "heart of the matter" rule).
Thus, "an adverse credibility determination can prove fatal" to an
asylum claim. Id. (quoting Pan v. Gonzales, 489 F.3d 80, 86 (1st
Cir. 2007)). Further, a factfinder may base a credibility
determination on inconsistencies, inaccuracies, or falsehoods
"without regard to whether [any such inconsistency, inaccuracy, or
falsehood] goes to the heart of the applicant's claim." 8 U.S.C.
§ 1158(b)(1)(B)(iii).1
Here, ample evidence supports the IJ's finding that
Legal's various statements were inconsistent. E.g., Conde Cuatzo,
1
Because Legal's application postdates the enactment of the
REAL ID Act, Pub.L. 109–13, 119 Stat. 302 (2005), the
credibility definition at issue here is subject to that Act.
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796 F.3d at 155–156 (applying the substantial evidence standard to
an adverse credibility determination). In his sworn statement to
the DHS officer — the one closest in time to the alleged beating
— Legal stated that he was never physically harmed in Haiti.
Additionally, he stated that his reason for going to Mexico was to
"find work" and failed to mention his participation in the KID.
It was only in Legal's application for asylum and his merits-
hearing testimony, after the initiation of removal proceedings,
that he claimed he was a member of the KID, had been beaten by
Lavalas supporters, had the car he was driving stolen at gunpoint,
and had traveled to Mexico to save his life. The record thus
supports the IJ's conclusion that Legal's various statements were
"directly at odds."
The mere fact that a detail is omitted from a DHS
interview but is included in subsequent submissions does not
necessarily warrant an adverse credibility finding. Cf.
Kartasheva v. Holder, 582 F.3d 96, 106 (1st Cir. 2009) ("Standing
alone, the omission of [two fines] during the asylum interview did
not render the petitioner incredible."). Yet, the inconsistencies
noted by the IJ are of a type that create strong doubts about the
veracity of Legal's story. Cf. Conde Cuatzo, 796 F.3d at 156
(upholding an IJ’s adverse credibility finding when the IJ cited
inconsistencies between petitioner’s sworn statements). Simply
stated, Legal "has told different tales at different times."
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Munoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir. 2008). Under
such circumstances, an IJ is entitled to "sharply discount" a
petitioner's testimony. Id. Although Legal attempted to explain
these omissions, the IJ was not obligated to credit his
explanations. Rivas-Mira v. Holder, 556 F.3d 1, 5 (1st Cir. 2009).
"Once we accept the [IJ's] adverse credibility
determination—as we must—the petitioner's case collapses." Id. at
6. Without Legal's own testimony, the record does not show that
he was targeted on account of his political beliefs. Accordingly,
we conclude that substantial evidence supports the agency's asylum
determination. As Legal seeks remand of only his asylum claim, he
has waived his withholding of removal and CAT claims. In any
event, the same credibility problem undermines those claims, and
we would reach the same conclusion as to them.
Consequently, we deny his petition for review.
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