Seng v. Holder

• Decision Date: 08 October 2009
• Docket Number: No. 08-2485.,08-2485.
• Citation: 584 F.3d 13
• Parties: Sovannary SENG, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

584 F.3d 13

Sovannary SENG, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-2485.

United States Court of Appeals, First Circuit.

Submitted July 28, 2009.

Decided October 8, 2009.

Joseph A. MacDonald, on brief, for petitioner.

Tony West, Assistant Attorney General, Civil Division, Thomas B. Fatouros, Senior Litigation Counsel, and Ann M. Welhaf, Trial Attorney, Office of Immigration Litigation, on brief, for respondent.

Before BOUDIN, SELYA and DYK,^* Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Sovannary Seng, a Cambodian national, seeks judicial review of a final order of the Board of Immigration Appeals (BIA). That order mandated her removal from the United States while at the same time denying her cross-application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). Concluding, as we do, that the petitioner's arguments lack force, we deny the petition.

The facts are uncomplicated, albeit disputed in important respects. The petitioner lawfully entered the United States on June 1, 2002, by means of a four-month visitor's visa. She overstayed and, on May 23, 2003, filed an application for asylum that cited a fear of persecution on account of her political affiliation. The Department of Homeland Security rejected her application and served her with a notice to appear, charging that she was subject to removal pursuant to 8 U.S.C. § 1227(a)(1)(b) because she had remained in the United States longer than permitted.

The venue then shifted to the immigration court, where the petitioner, represented by counsel, conceded removability. The case was continued and, albeit before a different judge, she offered evidence in support of her cross-application. On direct examination, she testified that she feared persecution because she and her husband had a previous affiliation with both the FUNCINPEC Party and the Sam Rainsy Party (each of which opposed Cambodia's powerful Hun Sen regime). She said that the couple had joined the FUNCINPEC movement in 1992 and, as a result of that involvement, had received numerous threats. The couple had joined the Sam Rainsy Party by 1998, when Hun Sen won Cambodia's quadrennial election.

The petitioner and her husband believed that the 1998 election was rigged and protested the results. As a consequence, they were arrested and detained for three days.

The petitioner next testified that, in November of 2000, police officers arrested her husband at their home, allegedly due to his campaign activities on behalf of the Sam Rainsy Party. He returned the following day, bruised and battered.

According to the petitioner's asylum application, her husband received an appointment early in 2001 to the elections board, for the next election cycle. He was to serve as a representative of the Sam Rainsy Party.

In the wake of that appointment, the police arrested and detained him once again. He escaped from custody, and the police came to the marital dwelling on several subsequent occasions, hounding the petitioner concerning her husband's whereabouts.

In June of 2002, the petitioner departed for the United States. She stayed there, she said, because she feared that the Cambodian authorities would harm her or her children (who still live in Cambodia) should she return.

As the case proceeded, facts emerged that were inconsistent with the petitioner's original account. To cite one example, the petitioner testified that her husband had fled Cambodia on October 1, 2001, and that this was the last time she had seen him. She then testified that she last had seen him in December of 2000. She later testified that her husband's appointment to the elections board occurred in October of 2001, and that they were living together at that time.

To cite another example, the petitioner testified that her husband joined the Sam Rainsy Party in 1992 and that, in 1993, she was threatened with harm unless they withdrew their support for the party. She later stated that her husband did not join the Sam Rainsy Party until 1998. But on redirect examination, she claimed that she had joined the Sam Rainsy Party in 1993. This testimony was especially puzzling because it came to light that the Sam Rainsy Party was not formed until 1998.

The immigration judge (IJ) tried valiantly to clarify the petitioner's testimony but had little success. The petitioner asserted that November of 2000 was the last time she laid eyes on her husband, but continued to insist that her husband had left Cambodia in October of 2001, which was when she last had seen him. That testimony was, of course, internally inconsistent. To confound the situation further, the petitioner then stated that her husband had served for a year as an elections board member before his arrest and ensuing escape. Given the date of her husband's appointment to the board, that testimony necessarily implied that he had remained in Cambodia until sometime in 2002. When asked several times to explain these and other manifest discrepancies, the petitioner admitted that she was confused and said that she was suffering from memory lapses.¹

To complete her case, the petitioner introduced amplitudinous background materials describing current conditions in Cambodia. These materials included accounts of police brutality and military force directed at adherents of the Sam Rainsy Party. Prominent among these documents was a 2005 State Department Country Conditions report that attributed a variety of human rights abuses to the Cambodian government.

The IJ denied the petitioner's claims for relief. While he did not go so far as to find that the petitioner had perjured herself, he did find that her testimony was not credible. He based this finding on major inconsistencies in her testimony and her admittedly faulty memory. Having refused to accord probative value to that testimony, the IJ found the remaining evidence insufficient to sustain the petitioner's burden of proof as to any or all of her claims for relief. Consequently, he denied her cross-application and ordered removal.

The petitioner appealed. On October 27, 2008, the BIA affirmed the IJ's decision. This timely petition for judicial review followed.

In matters of this kind, we ordinarily review the final order of the BIA. See, e.g., Amouri v. Holder, 572 F.3d 29, 33 (1st Cir.2009). But where, as here, the BIA has adopted the IJ's decision and has not developed an independent rationale, we review the IJ's decision directly. See Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.2008); Stroni v. Gonzales, 454 F.3d 82, 86-87 (1st Cir.2006).

The familiar substantial evidence rule governs review of the IJ's factual findings, including his credibility determinations. Chhay, 540 F.3d at 5. Under this deferential standard, we must accept the IJ's findings of fact as long as they are "supported by reasonable, substantial and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). In other words, reversal is justified on the ground of factual error only when the evidence is such as would compel a reasonable factfinder to reach a contrary conclusion. Id.; Bebri v. Mukasey, 545 F.3d 47, 50 (1st Cir.2008).

Questions of law are treated differently. Those questions engender de novo review, with some deference to the agency's reasonable interpretations of statutes and regulations that are within its sphere of authority. See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st Cir.2008); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

This brings us to the merits. We start with the asylum claim.

To qualify for asylum, an alien has the burden of showing that she falls within the statutory definition of "refugee." See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B); see also Muñoz-Monsalve, 551 F.3d at 8; Bebri, 545 F.3d at 50. A refugee is an alien who is unable or unwilling to return to her country of origin "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). An asylum applicant's credible testimony alone may suffice to satisfy this burden. See Bebri, 545 F.3d at 50; Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.2004).

This does not mean, however, that an IJ is obliged to accept an asylum applicant's testimony at face value. Should the IJ reasonably determine that the alien's testimony is not credible, he may disregard it in whole or in part. See Muñoz-Monsalve, 551 F.3d at 8; Bebri, 545 F.3d at 50. Unexplained inconsistencies or contradictions in an alien's version of events may thus derail her asylum claim. See, e.g., Ying Jin Lin v. Holder, 561 F.3d 68, 72-73 (1st Cir.2009); Bebri, 545 F.3d at 51.

The credibility determination in this case is governed by the "heart of the matter" rule.² Under that rule, an adverse credibility determination may not rest on discrepancies or inconsistencies that are merely peripheral to the alien's claim; instead, the determination must rest on discrepancies or inconsistencies that are central to the claim (that is, the discrepancies or inconsistencies must go to the heart of the matter). See Ying Jin Lin, 561 F.3d at 72; Bebri, 545 F.3d at 50; Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir.2006).

The petitioner contends that the discrepancies which marred her testimony were too insubstantial to warrant an adverse credibility determination. We disagree. These discrepancies are major and cut to the core of her foundational claim that her husband was arrested, detained, and mistreated as a result of his political activities and that, after his departure, she had a well-founded fear of similar mistreatment that prompted her to flee. We explain briefly.

The IJ focused on the petitioner's inability to tell a coherent story...