Mariko v. Holder

Decision Date24 January 2011
Docket NumberNo. 09–1464.,09–1464.
Citation632 F.3d 1
PartiesYa ya Deen MARIKO and Tiranke Kaba, Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — First Circuit

632 F.3d 1

Ya ya Deen MARIKO and Tiranke Kaba, Petitioners,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–1464.

United States Court of Appeals, First Circuit.

Submitted Dec. 1, 2010.Decided Jan. 24, 2011.


[632 F.3d 3]

Randy Olen and Robert D. Watt, Jr. on brief for petitioners.Tony West, Assistant Attorney General, Civil Division, Jennifer Paisner–Williams, Senior Litigation Counsel, Office of Immigration Litigation, and Yedidya Cohen, Trial Attorney, Office of Immigration Litigation, on brief for respondent.Before LIPEZ, SELYA and HOWARD, Circuit Judges.SELYA, Circuit Judge.

The lead petitioner, Ya Ya Deen Mariko, and the derivative petitioner, Tiranke Kaba, are husband and wife.1 Both of them are Guinean nationals. They seek review of a final order of the Board of Immigration Appeals (BIA), which affirmed a decision of an immigration judge (IJ) denying withholding of removal and protection under the Convention Against Torture (CAT). They also seek review of the BIA's denial of their motion to remand. Discerning no cognizable error, we reject the petition.

I. BACKGROUND

The facts are straightforward. Mariko entered the United States in late 2001, thus reuniting with Kaba, who had entered more than a year earlier. Both petitioners were here illegally and, in 2004, the Department of Homeland Security initiated removal proceedings. See 8 U.S.C. § 1182(a)(6)(A)(i), (7)(A)(i)(I). The petitioners conceded removability but cross-applied for withholding of removal and protection under the CAT.

The IJ convened a hearing on April 17, 2007. Mariko, the only live witness, claimed that he feared persecution in his homeland on account of his membership in the Guinea People's Rally (RPG), a political party that opposed the party in power. He professed himself to have been the RPG's “secretary for youth ... something like that,” whose duties included recruiting new members, campaigning, giving

[632 F.3d 4]

speeches, and working with young people. These activities, he testified, led him into harm's way.

Mariko recounted that, on November 11, 2001, armed soldiers broke up an RPG meeting and arrested him along with other party members. He was beaten, brought to a military camp, placed in a cell, and detained for approximately 19 days. His captors accused him of trying to overthrow the government and tortured him repeatedly. As a result of these beatings, Mariko sustained injuries “everywhere” from his neck to his waist and bled profusely from “tears” on his body. In addition, his thumb was permanently damaged (though he could not remember when or how this occurred).

Mariko eventually escaped from the camp and made his way to a friend's house. He later purchased a phony passport and traveled to France. Once there, he purchased a second passport, used it fraudulently to fly to Chicago, and then journeyed to Rhode Island to join his wife.

Under cross-examination, Mariko said that he possesses a birth certificate, Guinean passport, and national identification card. He told the IJ that his brother (who still lived in Guinea) had procured these documents and mailed them to him in 2004 or 2005. He conceded that, when he received his identification card, it bore both a signature and a fingerprint. Since the petitioner had not been in Guinea since 2001, the signature and fingerprint were necessarily bogus. Mariko further admitted that his passport may have been obtained fraudulently.

To support his claim of mistreatment while in Guinea, Mariko had introduced into evidence a summary of his medical records. On cross-examination, he was unable to explain why his medical records reflected injuries only to his thumb and ring finger. He was equally at a loss to explain how this jibed with his assertion that he was “wounded everywhere.” His claim that he had received the summary document by mail in either 2002 or 2003 was suspect on its face; the medical records bore a date of June 6, 2006.

Mariko's grasp of the politics of his homeland seemed shaky. Though he correctly identified the leader of the RPG, he evaded direct questions about significant events in the annals of the party. In a similar vein, he failed to explain inconsistencies between his testimony and his earlier affidavit in support of his application for relief, including inconsistencies regarding the frequency of the torture that he had endured.

Faced with this scumbled record, the IJ denied the application for withholding of removal and protection under the CAT. The cornerstone of the IJ's decision was an adverse credibility determination. Once Mariko's testimony was discounted on that basis, what remained was insufficient to sustain the petitioners' devoir of persuasion on their claims for relief.

The petitioners appealed to the BIA, challenging the adverse credibility determination. They argued that the IJ (i) erroneously concluded that Mariko's testimony lacked sufficient detail; (ii) ascribed too much weight to Mariko's use of questionable documents; and (iii) relied too heavily on Mariko's inability to specify the date when he received the medical records.

On December 1, 2008—while their appeal to the BIA was pending—the petitioners filed a motion to remand. They theorized that Kaba was newly eligible for asylum based upon changed circumstances. In support, they cited (i) the birth of their daughter, Su-ad, on September 17, 2008, and (ii) an opinion recently issued by the Attorney General in an unrelated case. In an order dated March 10, 2009, the BIA

[632 F.3d 5]

adopted and affirmed the IJ's decision and simultaneously denied the motion to remand. With respect to the latter, the BIA noted that Kaba had premised her new asylum claim solely on a fear that her newborn daughter probably would fall victim to female genital mutilation (FGM) in Guinea. Such a claim, the BIA concluded, was inadequate on its face. This timely petition for judicial review followed.

II. ANALYSIS

On a petition for judicial review, we typically direct our appraisal to the final orders of the BIA. Seng v. Holder, 584 F.3d 13, 17 (1st Cir.2009). But where “the BIA has adopted the IJ's decision in whole or in part, we review the pertinent portions of the IJ's decision as well.” Rivas–Mira v. Holder, 556 F.3d 1, 4 (1st Cir.2009). This is such a case.

In conducting this review, we examine findings of fact (including credibility determinations) under the substantial evidence standard. López–Castro v. Holder, 577 F.3d 49, 52 (1st Cir.2009); Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). This standard requires us to defer to the agency's findings as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Absent an error of law, we will reverse only if the record compels a conclusion contrary to that reached by the agency.2 Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.2008).

A. Adjudicated Claims.

We begin with the adjudicated claims for withholding of removal and protection under the CAT.

1. Withholding of Removal. A well-defined legal framework governs applications for withholding of removal. The applicant must show that, independent of any presumption, there is a clear probability that he will be subjected to persecution on account of a statutorily protected ground upon repatriation. See López–Castro, 577 F.3d at 52; Chhay, 540 F.3d at 6. For this purpose, there are five statutorily protected grounds: race, religion, nationality, membership in a particular social group, and political opinion. 8 U.S.C. § 1231(b)(3)(B)(i).

In the case at hand, Mariko alleges persecution on account of his political opinion, as manifested by his membership in the RPG. This is a statutorily protected ground. Building on that foundation, he rehearses the persecution that he claims to have suffered in the past, asserts that the same regime remains in power, and voices his fear of being harmed upon his return to Guinea. The IJ and the BIA rejected this claim primarily because of doubts about the veracity of Mariko's account of past persecution.

Before turning to the supportability of this determination, we pause to make an important temporal point. Mariko filed his application for relief after May 11, 2005. Thus, his case is controlled by the credibility standard embedded in the REAL ID Act of 2005. Pub.L. No. 109–13, § 101(a)(3), 119 Stat. 302, 303 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). In gauging credibility under that standard, an IJ is directed to consider the “totality of the circumstances, and all relevant factors,” including but not limited to the alien's demeanor, responsiveness, and prior statements.

[632 F.3d 6]

Id. The IJ may also consider, where relevant, the plausibility of the alien's story and the presence or absence of corroborative evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). If the IJ reasonably...

To continue reading

Request your trial
21 cases
  • Seck v. U.S. Attorney Gen.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • December 8, 2011
    ...home country. In re A–K–, 24 I. & N. Dec. at 278–79. Many of our sister circuits have adopted this rule. See, e.g., Mariko v. Holder, 632 F.3d 1, 8 (1st Cir.2011); Kane v. Holder, 581 F.3d 231, 240–42 (5th Cir.2009); Gumaneh v. Mukasey, 535 F.3d 785, 789–90 (8th Cir.2008); Niang v. Gonzales......
  • Mazariegos-Paiz v. Holder
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 25, 2013
    ...on this application, he had to prove that, more likely than not, he would be tortured if removed to his homeland. See Mariko v. Holder, 632 F.3d 1, 7 (1st Cir.2011); 8 C.F.R. § 1208.16(c)(2). Because the factual underpinnings of this claim are inextricably intertwined with the factual under......
  • Hasan v. Holder
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 12, 2012
    ...was supported by substantial evidence. 1. Having been born in the United States, Tashfia is a U.S. citizen. See Mariko v. Holder, 632 F.3d 1, 8 n. 4 (1st Cir.2011) (citing United States v. Wong Kim Ark, 169 U.S. 649, 702, 18 S.Ct. 456, 42 L.Ed. 890 (1898)). 2. Although Tameem filed his own ......
  • Mazariegos-Paiz v. Holder
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 25, 2013
    ...on this application, he had to prove that, more likely than not, he would be tortured if removed to his homeland. See Mariko v. Holder, 632 F.3d 1, 7 (1st Cir. 2011); 8 C.F.R. § 1208.16(c)(2). Because the factual underpinnings of this claim are inextricably intertwined with the factual unde......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT