Farah v. Ashcroft

Decision Date14 November 2003
Docket NumberNo. 02-70252.,02-70252.
Citation348 F.3d 1153
PartiesJamal Ali FARAH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Cheri Attix, Law Office of Cheri Attix, San Diego, California, for the petitioner.

Stephen J. Flynn and Jacqueline R. Dryden, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before Mary M. SCHROEDER, Chief Judge, David R. THOMPSON and Susan P. GRABER, Circuit Judges.

Opinion by Chief Judge Schroeder.

OPINION

SCHROEDER, Chief Judge.

Petitioner, Jamal Ali Farah, petitions for review of the BIA's decision denying his application for asylum and adopting the opinion of the immigration judge ("IJ"). The IJ had ordered Farah removed on the basis of the finding that Farah was not credible and had further ordered Farah permanently ineligible for any benefits under the immigration laws of the United States because his application was frivolous. See 8 U.S.C. § 1158(d)(6).

In this petition for review, Farah first challenges the IJ's credibility determination underlying his removal order. Farah, however, bears a heavy burden, for he is required to establish that the evidence was so compelling that this court must find it worthy of credence and must order him eligible for asylum relief. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Farah has not borne this burden.

Farah also challenges the IJ's finding that he knowingly filed a frivolous asylum application. Such a finding carries the severe penalty of a permanent bar to immigration relief, so, INS regulations require there to be sufficient opportunity to account for discrepancies or implausibilities. 8 C.F.R. § 208.20. Our research discloses no case in which we have upheld such a bar, and we agree with petitioner that the IJ's finding was infirm for failure to follow the requirements of that regulation. We therefore affirm the order of removal but vacate the order of permanent ineligibility for immigration benefits under section 208(d)(6) of the Immigration and Nationality Act (the "Act" or "INA").1

I. BACKGROUND:

Farah, a citizen of Somalia, stated in his asylum application that he arrived in New York on January 24, 1999, using concededly false travel documents, and then transferred immediately to a flight to San Diego. He filed his application for asylum with the INS on February 16, 1999, conceding removability at his hearing before the IJ on April 27, 1999.

In his asylum application, Farah asserted eligibility for asylum because of past persecution on account of membership in a particular group, his clan. He further stated that he fears future persecution by the United Somali Congress (the "USC") if he returns to Somalia. His application stated that the USC looted his family's business and attacked his family home as part of an orchestrated plan of ethnic cleansing. According to his application, the USC militiamen shot his two cousins and knocked him unconscious because he and his family are members of the Meheri clan.

At the hearing, Farah, his alleged half-brother, Ahmed Ali Farah, and his expert witness on Somalia, Dr. Asha Samad, all testified concerning Farah's clan and his identity. Dr. Samad stated that Farah is from the "Meheri Ismail" clan and that Farah's father's name was "Ali Farah Mahamoud Ismail." Farah, however, testified that his father's name was "Ali Farah Abdi." Later Dr. Samad clarified that Farah's father's full name was "Ali Farah Abdi Farah Mahamoud Ismail Mahamoud Saleh" and that Farah's father would be known as "Ali Farah Abdi." The IJ found that Dr. Samad's testimony was inconsistent.

Farah's alleged half-brother, Ahmed Ali Farah, testified that his father's name was "Ali Farah Abdi," although on his own application he had listed "Ali Farah Ali" as his father. He explained that at the hearing as a clerical error. Farah's half-brother also listed a different clan association than the "Meheri" in his application, and he did not identify Jamal Farah as a sibling on the application. At the hearing, the half-brother explained that, when he filed for asylum, he listed his clan as traced from his mother's patrilineal descent, not his father's, and that he did not include Farah as a sibling because, unlike Farah's application, his application was derivative of his mother's clan, not his father's. The IJ also found the half-brother's testimony inconsistent and lacking credibility.

Additionally, Farah's alleged half-brother testified that, after Farah arrived in San Diego, the half-brother sent Farah their father's identification card for use in Farah's asylum application. The IJ, however, doubted whether, if Farah arrived in the United States on January 24, he could have filed his asylum application on February 16. The IJ concluded that Farah was not credible in claiming that he navigated through a foreign country and language, found a place to live, and filed an asylum application within that short period of time.

At the conclusion of Farah's initial appearance, the IJ reviewed the penalties for filing a frivolous application with Farah, and Farah indicated he understood the penalties and desired to go forward. During the course of the proceedings, the IJ did not, however, go through specific inconsistencies or implausible elements of Farah's claim, upon which the frivolousness finding relied, and did not give Farah an opportunity to explain them.

Eventually, the IJ entered an order setting forth his findings and his overall adverse credibility determination. The IJ further concluded that Farah had received notice under section 208(d)(4) of the Act and had knowingly made a frivolous application for asylum. The IJ ordered Farah's removal to Somalia and denied requests for asylum, withholding of removal, and relief under the United Nations Torture Convention. The IJ ordered that Farah be permanently ineligible for any benefits under the immigration laws.

The BIA reviewed the administrative record and then entered a summary order adopting and affirming the IJ's decision in its entirety, dismissing the appeal in an order dated May 9, 2001. This petition followed.

II. DISCUSSION:

Where the BIA adopts the findings and reasoning of the IJ, this court reviews the decision of the IJ as if it were that of the BIA. Al-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). The standard of review is extremely deferential: "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(A)-(B). Thus, when a petitioner contends that the IJ's findings are erroneous, the petitioner "must establish that the evidence not only supports that conclusion, but compels it." Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998) (citation and internal quotation omitted).

The same standard applies to the IJ's credibility findings. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001); Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). Thus, this court must deny Farah's petition unless Farah has presented evidence "so compelling that no reasonable factfinder could find" that he was not credible. Garrovillas v. INS, 156 F.3d 1010, 1015-16 (9th Cir.1998); see also Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812.

Here, the IJ established a legitimate, articulable basis to question Farah's credibility and offered specific, cogent reasons for disbelief as required under our law. See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000). These credibility findings went to key elements of the asylum application, including identity, membership in a persecuted group, and date of entry in the United States. Eligibility for asylum depends on the credible establishment of these elements. 8 U.S.C. § 1158(d)(5)(A)(i). We must defer to the IJ's credibility findings and uphold the denial of asylum relief.

Because we affirm the BIA's determination that Farah failed to establish eligibility for asylum, we also affirm the denial of Farah's application for withholding of removal. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000) ("A failure to satisfy the lower standard of proof required to establish eligibility for asylum therefore necessarily results in a failure to demonstrate eligibility for withholding of deportation.")(internal citation omitted).

A failure to establish eligibility for asylum does not necessarily doom an application for relief under the United Nations Convention Against Torture, however. In Kamalthas v. INS, 251 F.3d 1279, 1282-83 (9th Cir.2001), we expressly rejected the BIA's determination that an "`applicant [fails] to satisfy his burden of presenting a prima facie case for relief under the Convention where he merely restates facts that have already been deemed incredible at a prior [asylum] hearing'" (alteration in original). Instead, we held that the standards for the two bases of relief are distinct and should not be conflated. We explained that, "pursuant to 8 C.F.R. § 208.16(c)(3), `all evidence relevant to the possibility of future torture shall be considered,' even apart from any prior findings in the asylum context." Id. at 1283. In that case, we particularly pointed to the fact that "nowhere in its opinion did the BIA consider the documented country conditions in Sri Lanka which corroborate the widespread practice of torture against Tamil males." Id.

In this case, by contrast, Farah's claims under the Convention Against Torture are based on the same statements, by Farah and others, that the BIA determined to be not credible. Farah points to no other evidence that he could claim the BIA should have considered in making its determination under the Convention Against Torture. Therefore, because we affirm the BIA's determination that Farah and his witnesses...

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