Ahmed Majid v. Eric Holder, Jr., No. 07-1436 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1436 AHMED SHAH MAJID; SIMA A. MAJID; S. M., Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. No. 08-1489 AHMED SHAH MAJID; SIMA A. MAJID; S. M., Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petitions for Review of Orders of the Board of Immigration Appeals. Argued: May 15, 2009 Decided: July 14, 2009 Before MICHAEL, SHEDD, and AGEE, Circuit Judges. Petitions for review denied by unpublished per curiam opinion. ARGUED: David Christopher Drake, JOHNSON & ASSOCIATES, PC, Arlington, Virginia, for Petitioners. Paul F. Stone, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Randall L. Johnson, JOHNSON & ASSOCIATES, PC, Arlington, Virginia, for Petitioners. Gregory G. Katsas, Assistant Attorney General, Civil Division, Ethan B. Kanter, Senior Litigation Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Ahmed Shah Majid seeks review of the Board of Immigration Appeals (BIA) affirmance of an immigration judge s (IJ) denial of his application for asylum and withholding of removal. Majid additionally seeks review of the BIA s denial of his motion for reconsideration. Majid claims that the IJ and the BIA erred in ruling that his asylum application was not timely filed. He also claims that the IJ erred in finding that he was not credible and that he had not established a likelihood of future persecution if he was returned to Afghanistan. We deny Majid s petition for review as to both of these claims. First, this court lacks jurisdiction to consider Majid s challenge to the timeliness of his asylum application. Second, we conclude that the IJ offered, on balance, cogent reasons to support his adverse credibility determination - a determination that formed a sufficient basis for the IJ and the BIA to deny Majid s request for withholding of removal. I. Majid is a native and citizen of Afghanistan seeking asylum in the United States or, alternatively, withholding of removal to Afghanistan, on behalf of himself and his wife and daughter. Majid claims to have traveled from Afghanistan to the United States with his wife and daughter in August of 2001. 3 The date of his family s entry into this country, however, was not conclusively established. According application, his before testimony to the Majid s IJ, and asylum several affidavits, he entered the United States by boat on August 10, 2001. An additional affidavit from Majid s cousin places his arrival on August 10, 2002, four months after Majid had filed his asylum application within the United States. Neither the IJ nor the BIA credited Majid s account of his travel to the United States, and the IJ placed Majid s arrival in the United States on or about August 10, 1999, J.A. 177, thereby disqualifying Majid s asylum application, which he was required to file within one year of his entry into the United States. Majid support of sought his to asylum withholding of removal. establish application the following and facts application in for While residing in Afghanistan, Majid suffered persecution first at the hands of a powerful general, Rashid Dostum, and later from the Taliban after it came to power in 1996. Majid was trained as a lawyer and studied English for approximately four years in school in Afghanistan. He came to General Dostum s attention in 1989 while defending a man accused of bribery and corruption who claimed to have been framed by the general. Dostum Majid investigated the case and concluded that General had indeed framed his client because the client had previously accused the general and the general s soldiers of 4 gang raping the man s daughter. When General Dostum learned of Majid s investigation, he had his soldiers threaten Majid and order Majid to discontinue the investigation. do so. Majid refused to Majid was eventually arrested by General Dostum with the help of the KHAD (the Afghani security and intelligence agency). While in prison Majid was tortured, and after his release under a general amnesty thirteen months later in 1991, he remained under the watch of General Dostum s soldiers who were always harassing [him]. secretive J.A. 1060. newsletters Following his release Majid wrote condemning committed by the communists. the Id. human rights atrocities When General Dostum and the mujahidin came to power in April 1992, Majid spoke out against them before fleeing from Kabul to Kara-Bagh, where he remained for six years. Majid was forced to return to Kabul in 1998 when the Taliban began burning villages in the north of Afghanistan. Upon his return to the capital, Majid suffered abuse at the hands of the Taliban. He was beaten once for not wearing his beard at an appropriate length, and was arrested twice in 2000 and held for a month and then for three weeks based solely on his Tajik ethnicity and the fact that he was from north of Kabul, the region where the Northern Alliance had fought against the Taliban. In Kabul Majid spoke out against the Taliban s rejection of cooperation with the United Nations and aid from 5 the United States. Majid was accordingly accused of helping Christians and Westerners. In 2001 Majid, upon learning from a friend that the Taliban was planning to execute him, arranged his family s flight from Afghanistan. Majid paid the equivalent of $25,000 to two smugglers, Najeeb and Asef, to help his family to get to the United States. The smugglers provided Majid and his wife and daughter false documentation in the form of green passports. with Beginning in Pakistan, Asef accompanied the Majid family throughout their travels to the United States. border into Pakistan on The journey involved crossing the foot, driving several hours, taking three plane flights, the first from Pakistan to an Arab country that Majid was unable to identify, the second to a European country that Majid was also unable to identify, and the third to a country that Majid later concluded was Canada, based on its proximity to New York. The family then embarked on a boat for the final leg of their journey and ultimately arrived in New York. There, Majid contacted a relative in Virginia, and Asef bought train tickets to Virginia for Majid and his wife and daughter. Asef accompanied Majid and his family on the first few stops of their rail journey, but Asef then got off the train, punched taking by the with him the conductor. group s The only tickets, which documentation had been from the journey Majid retained is a handwritten receipt in English from 6 the Shobra Hotel in Peshawar, Pakistan, where Majid and his family stayed for two nights on the 26th and 27th of July 2001. On April 1, 2002, Majid filed an application asylum with the Department of Homeland Security (DHS). for After conducting a credible fear interview, DHS referred Majid to the Department of Justice for removal proceedings and charged Majid with removability under Immigration and Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Majid appeared before an IJ and conceded removability, but sought relief from removal in the form of asylum, withholding of removal, protection under the Convention Against Torture (CAT). denied Majid s asylum claim, holding that Majid and The IJ failed to demonstrate by clear and convincing evidence that he had filed the claim within one year of his arrival in the United States. Further, the IJ found that Majid was not a credible witness. The IJ therefore determined that Majid had not established that he suffered persecution in Afghanistan on account of a protected criterion, and concluded that Majid failed to establish that it was more likely than not he would be persecuted if he returned to Afghanistan. The IJ consequently rejected Majid s applications for withholding of removal under the INA and the CAT. He also found Majid ineligible for voluntary departure pursuant to INA § 240B(b), 8 U.S.C. § 1229c(b), because Majid had not established a desire for voluntary departure, the means 7 to do so, or that he had been present in the United States for more than one year before the notice to appear was served. On appeal the BIA affirmed the IJ s decision. It adopted the IJ s finding that Majid failed to establish entrance into the United States within one year of filing his asylum application and the IJ s adverse credibility determination. The BIA accepted the reasons offered by the IJ and, in addition, pointed out affidavit, United the which States contradiction places date August on the 10, between of 2002, Majid s Majid s and the entry other cousin s into the affidavits, Majid s application, and Majid s testimony, which place it on August 10, 2001. significantly Judge s The underscores decision on this BIA noted the that this propriety issue. J.A. of contradiction the 60. Immigration The BIA also rejected Majid s claim for withholding of removal under the CAT. Majid filed two subsequent motions for reconsideration with the BIA, both of which were rejected, and he now petitions for review of the denial of his asylum application and the denial of withholding of removal. II. Majid determinations first that challenges he did not the IJ s timely and file the his BIA s asylum application within one year of his arrival in the United States. 8 Majid does not dispute that pursuant to INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), he bore the burden of proving that his asylum application was filed within one year after the date of his arrival in the United States. The IJ found, and the BIA affirmed, that Majid had not carried this burden. Section 208(a)(3) of the INA, 8 U.S.C. § 1158(a)(3), provides a Limitation on judicial review : No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2) -- that is, any determination of whether the asylum seeker has met his burden of proof regarding the timeliness of the application. We have affirmed in dicta that this provision means what it says. See Niang v. Gonzales, 492 F.3d 505, 510 n.5 (4th Cir. 2007) ( It is worth noting that, even assuming [the petitioner] had not waived the timeliness issue with respect to her asylum claim, we lack jurisdiction to review the BIA s decision in this respect. ) (citing 8 U.S.C. § 1158(a)(3)); Balde v. Gonzales, 223 F. App x 265, 266 (4th Cir. 2007) (unpublished); Lin v. Gonzales, 190 F. App x 301, 305 (4th Cir. 2006) (unpublished). Other circuits have similarly held that § 1158(a)(3) precludes review by federal courts. See Hana v. Gonzales, 503 F.3d 39, 42 (1st Cir. 2007); Yakovenko v. Gonzales, 477 F.3d Ashcroft, 338 F.3d 631, 180, 635 185 (8th Cir. (3d Cir. 9 2007); 2003); Tarrawally v. Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th Cir. 2003); Fahim v. U.S. Att y Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815-16 (9th Cir. 2001); see also Tarraf v. Gonzales, 495 F.3d therefore unable 525, to 531 review n.5 the (7th Cir. timeliness 2007). of We Majid s are asylum claim. III. Majid also challenges the denial of his application for withholding removal, Majid Afghanistan, of removal. must there To establish is a qualify that clear if for withholding of he was sent back to probability that his life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). An applicant who has failed to establish the less stringent wellfounded fear standard of proof required for asylum relief is necessarily also unable to Cir. 2008) an entitlement to Anim v. Mukasey, 535 F.3d 243, 253 withholding of removal. (4th establish (internal quotations removed). While [a]n applicant who successfully demonstrates that she suffered past persecution on account of a protected ground is presumed to have [the] well-founded fear of persecution required for refugee status, Dankam v. Gonzales, 495 F.3d 113, 120 (4th Cir. 2007) 10 (internal quotations removed), [b]ecause the subjective element cannot generally be proved other than through the applicant s testimony, an about fear unless the beyond credibility finding future persecution will of applicant persecution, omitted). adverse Anim, introduces 535 F.3d regarding likely independent at 260 testimony defeat evidence (internal a claim of past quotations Here, Majid offered no evidence of past persecution his own personal declined to credit. account, which the IJ and the BIA Accordingly, the BIA s denial of his claim for withholding of removal must be affirmed if we accept the IJ s adverse credibility determination. We review the BIA's administrative findings of fact under the substantial evidence rule, and we are obliged to treat them as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary. (4th Cir. 2007). Haoua v. Gonzales, 472 F.3d 227, 231 When the BIA adopts the IJ s opinion and supplements it with its own reasoning, we review both decisions. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007). When rendering an adverse credibility determination, an IJ must offer a specific, cogent reason for his or her disbelief of the applicant. Zuh v. Mukasey, 547 F.3d 504, 507 (4th Cir. 2008) (internal quotations and alterations omitted). Examples of specific and cogent reasons include inconsistent 11 statements, contradictory evidence, and inherently improbable testimony; [in particular,] where these circumstances exist in view of the background evidence on country conditions, it is appropriate for an Immigration credibility determination on Judge such a to make an basis. adverse Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (quoting In re S-MJ-, 21 I. & N. Dec. 722, 729 (BIA 1997) (en banc)). In contrast, we will not defer to adverse credibility findings based on speculation, conjecture, or an otherwise unsupported personal opinion. Zuh, 547 F.3d at 507. [A]n alien's own testimony may in some cases be the only evidence available, and it can suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his alleged fear. I. & N. Dec. 120, 124 (BIA 1989). Matter of Dass, 20 Illusory inconsistencies do not, however, support an adverse credibility finding. 547 F.3d at 508. See Zuh, And while omissions of facts in an asylum application or during testimony do not, in themselves, support an adverse credibility determination, the omission of key events coupled with numerous inconsistencies may provide a specific and cogent reason to support an adverse credibility finding. In re A-S, 21 I. & N. Dec. 1106, 1109 (BIA 1998). Here, the IJ based his determination on five independent grounds. 12 adverse credibility Although not all of the IJ s stated grounds withstand scrutiny, we conclude that, on balance, the IJ had cogent reasons for the determination. The IJ first faulted Majid for a lack of detail in his testimony regarding his smuggled trip to the United States, including his alleged dates of travel and plane and boat routes. The IJ found Majid s account of his travel implausible, noting that: Despite his education and training as a lawyer, [Majid] expresses a glaring lack of awareness of his surroundings during his smuggled trip into the United States. J.A. 190. The IJ went on to note that [Majid] knows some English, a language present in most airports and on airlines, but he did not recognize the countries that he passed through or the airlines he took during his smuggled trip to the United States. Further, the IJ observed that [Majid] was in Id. occasional possession of a false passport during his trip to the United States, but claims that he did not notice his alleged country of origin even though he saw his pictures inside the passport and passed through countries. immigration control in one of the transit Id. Majid attempts to explain away these deficiencies in his account by claiming that he was frightened during the trip and was concerned with taking care of his wife (then five months pregnant) and two-and-a-half year old daughter. He notes that the IJ offered no basis for his claim that English signage is 13 present in most airports. as a lawyer information in about And Majid questions how his training Afghanistan his is flight relevant itinerary, to ascertaining which, as explains, Asef sought to keep secret from Majid. Majid Majid was instructed by Asef not to ask questions about the details of the travel. Majid additionally supplied an affidavit from Kurt Lohbeck, an Afghanistan expert, which states that the method of smuggling by men called[] Najeeb and Asef is typical of how such things worked prior to 9/11/2001. J.A. 84. Lohbeck affirmed that a cost of $25,000 was within the norm and that: For this Afghan family to stay in a place in Peshawar, Pakistan for less than two weeks, a place called Shobra Hotel, it is not uncommon for them not to have records. The hotels in Peshawar where refugees would go is [sic] very different from such places in this country. They are primitive, crude and most likely do not have records to be kept for proof of staying in the hotel. Id. We observe first that an assumption regarding what a person trained as a lawyer in Afghanistan would or would not have observed otherwise amounts unsupported to speculation, personal opinion conjecture, and is not a or an cogent reason that can support an adverse credibility determination. See Zuh, 547 F.3d at 507; cf. Cosa v. Mukasey, 543 F.3d 1066, 1068-69 (9th Cir. 2008) (rejecting 14 IJ s credibility determination based upon pure speculation about how someone of petitioner s purported religion might look and act); Razkane v. Holder, 562 F.3d 1283, 1287-89 (10th Cir. 2009) (rejecting IJ s determination regarding how person who is a homosexual would look and act). Similarly, we cannot base affirmance on the IJ s unsubstantiated assertion that English [is] a language present in most airports and on airlines. J.A. 190. This assertion lacks any foundation in the record. We assessment do, that however, Majid s accept account States was lacking in detail. of the his IJ s more voyage to general the United The IJ was permitted to cite this lack of detail as a cogent reason in support of an adverse credibility determination. Second, determination the IJ with what supports he his adverse perceived to credibility be several inconsistencies in Majid s asylum application and testimony. discussed below, because two of these inconsistencies As are supported by the record, we conclude that these inconsistencies provide a second cogent reason to support the adverse credibility determination. Specifically, the IJ found Majid s claim that his thirteen-month imprisonment by General Dostum resulted from his investigation inconsistent into with the his general s statement 15 that alleged he was crimes to be accused by the general of being a CIA spy. Majid claims that there is no inconsistency here because the accusations of being a CIA spy were pretextual and the real reason for Majid s arrest was his investigation into the general s alleged crimes. Majid provided the Lohbeck affidavit to the BIA in support of this contention. Majid s original affidavit in support of his asylum application, however, stated that the accusations of being a CIA spy were the result of his objection to communism, which the IJ was entitled to find inconsistent with Majid s later explanation and the Lohbeck affidavit. The accounts Majid s of IJ the also found manner investigation in inconsistent into which the General general s Majid s Dostum criminal various learned of activities, and Majid s statements regarding whether he had ever filed a complaint against the general. and extensive testimony on We agree that Majid s affidavit these points was confusing and potentially contradictory, and the IJ was within his discretion to interpret them as inconsistent. Third, the IJ concluded that Majid s demeanor, which appeared unemotional and unaffected, was inconsistent with a person who alleged he had been tortured. the IJ s assessment that Majid J.A. 190. appeared We review unemotional and unaffected bearing in mind the IJ s superior ability to gauge the witness demeanor. Zine v. Mukasey, 517 F.3d 535, 541 (8th 16 Cir. 2008). important [A] consistent story, independently supported in respects inconsistencies, and could unmarred not by normally implausibilities be disregarded or merely because the witness -- especially one from a different culture and unversed in English -- simply struck the decision-maker as untruthful. Teng v. Mukasey, 516 F.3d 12, 16 (1st Cir. 2008). We are not faced with such a situation in this case. adverse credibility determination hinges not only The IJ s on Majid s unemotional demeanor, but on additional and independent cogent reasons: inconsistencies detail. We demeanor as therefore in Majid s accept the IJ s the IJ s supportive of accounts and a conclusions adverse lack of regarding credibility determination. Fourth, the IJ found it troubling that Majid provided inadequate corroboration for his claim that he entered the United States within one year of his asylum application as well as regarding persecution. his J.A. 191. claim of past and fear of future The IJ observed that medical records or affidavits from Majid s coworkers, neighbors, or family members describing the circumstances of his arrest, prison conditions, or recovery from injuries inflicted better support [Majid s] testimony. through Id. torture would Additionally, the IJ would have liked tangible evidence of Majid s trip to the United 17 States other than his unauthenticated letter from the Shobra Hotel in Pakistan. Although an applicant s credible testimony may be sufficient to carry his burden of proof, an IJ is entitled to evaluate the asylum-seeker s credibility and to require corroboration of self-serving testimony when such corroboration appears to be readily obtainable. 551 F.3d 1, 8 (1st Cir. 2008). Muñoz-Monsalve v. Mukasey, Here again, the IJ did not base his adverse credibility determination solely on Majid s lack of corroborating evidence, and, as we have explained above, the IJ offered several cogent reasons for the determination. Consequently, we need not determine whether the IJ was entitled to discount the credibility of Majid s testimony based Majid s failure to produce specific records. We have some skepticism about the IJ s fifth basis for his adverse credibility determination. Majid s testimony was non-responsive The IJ observed that when the DHS Court inquired into basic components of his story. and this J.A. 190. The IJ did not, however, specify which components of Majid s story he transcript was referring reveals that, to. And while a review Majid s of initial the hearing responses to certain yes or no questions were in the form of explanations rather than simple one-word answers, after prompting from the IJ, he did eventually answer each question. 18 Additionally, few of these yes or no questions pertained to material aspects of Majid s account. See, e.g., J.A. 340-41 (offering explanation rather than yes or no when asked whether General Dostum had been elected president of Afghanistan); J.A. 345 (initially nonresponsive when asked whether he informed his relatives he planned to nonresponsive flee when Afghanistan); asked whether J.A. 353-54 communists and (initially mujahidin in Afghanistan, whom Majid referred to as hav[ing] been criminal, have ever been prosecuted); J.A. 358 (offering explanation rather than yes or no when asked whether he had attempted to contact the Karzai government members of the government). these questions may be to advise it of misdeeds of To the extent Majid s answers to attributed to language problems or nervousness, they do not form a proper basis for an adverse See Elias v. Gonzales, 490 F.3d 444, credibility determination. 450 (6th Cir. 2007). However, because the IJ offered several other cogent reasons in support of his determination, and his analysis largely credibility, we supports need not the finding determine that whether Majid Majid s lacked alleged nonresponsiveness provided a separate cogent reason. In conclusion, the bases cited by the IJ for his adverse credibility determination in this case were, on balance, cogent, and the record does not compel a contrary conclusion. As explained above, because we 19 accept the IJ s adverse credibility determination, we will leave in place the IJ s conclusion that Majid has failed to establish the requisite fear of future persecution. * For the reasons * stated * above, we deny Majid s petitions for review of (1) the BIA s order denying his claims for asylum and withholding of removal and (2) the BIA s order denying his motion for reconsideration. PETITIONS FOR REVIEW DENIED 20
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