Afful v. Ashcroft
| Citation | 380 F.3d 1 |
| Decision Date | 06 August 2004 |
| Docket Number | No. 03-1569.,03-1569. |
| Parties | Mary Newman AFFUL, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Randall L. Johnson, with whom Johnson & Associates, P.C. was on brief, for petitioner.
Frances M. McLaughlin, Attorney, Office of Immigration Litigation, Civil Division, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, and Linda S. Wendtland, Assistant Director, were on brief, for respondent.
Before TORRUELLA, LYNCH and LIPEZ, Circuit Judges.
Mary Newman Afful, a native and citizen of Ghana, petitions for relief from an order of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's decision. Afful argues that the BIA committed three reversible errors: (1) affirming the Immigration Judge's denial of her applications for political asylum and withholding of deportation; (2) affirming the Immigration Judge's denial of her application for suspension of deportation as pretermitted; and (3) denying her motion to remand the case to an Immigration Judge. We affirm the BIA's order in full.
Afful entered the United States at New York, New York in October 1989 using another person's passport. On March 16, 1995, the Immigration and Naturalization Service ("INS") 1 issued an order to show cause charging Afful with entering the United States on May 27, 1985, without inspection. At a hearing before the Immigration Judge on October 4, 1995, Afful admitted the allegations against her, conceded removability, and requested asylum, withholding of removal, and suspension of deportation. On September 29, 1997, the INS amended the Order to Show Cause to read that Afful entered the United States in October 1989. On the same day, the Immigration Judge held a hearing on Afful's asylum application, continuing the case to May 29, 1998. On October 23, 1997, the INS added a charge for procuring entry into the United States through fraud or willful misrepresentation of material fact because Afful had admitted at the September 29, 1997 hearing that she had used another person's passport to enter the United States.
On October 1, 1998, the Immigration Judge denied Afful's applications for asylum, withholding of deportation, suspension of deportation and voluntary departure. Afful appealed to the BIA on November 2, 1998. On June 19, 2002, Afful filed a motion to remand to the Immigration Judge so that she could apply for adjustment of status due to the filing of an approved Form I-140 filed by her employer. On March 29, 2003, the BIA affirmed the Immigration Judge's decision and denied Afful's motion to remand. This appeal followed.
Section 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1159(a), authorizes the Attorney General to exercise his discretion to grant asylum to refugee aliens. The alien bears the burden of demonstrating eligibility for asylum. See Albathani v. INS, 318 F.3d 365, 373 (1st Cir.2003). An applicant may meet that burden by demonstrating past persecution or a well-founded fear of future persecution based on "race, religion, nationality, membership in a particular social group, or political opinion." Id. (quoting 8 C.F.R. § 208.13(b)(1)) (internal quotation marks omitted). To establish past persecution, an applicant must provide "conclusive evidence" that she was targeted on any of the five grounds. Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.2003) (quoting Albathani, 318 F.3d at 373). To show a well-founded fear of future persecution, an applicant must meet both subjective and objective prongs. Id. (citation omitted). To satisfy the objective prong, an applicant's testimony alone may be sufficient, but it must constitute credible and specific evidence of a reasonable fear of persecution. El Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir.2003). To meet the subjective prong, the applicant must show her fear is genuine. See Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir.1999).
"Determinations of eligibility for asylum or withholding of deportation are reviewed under the substantial evidence standard...." Fesseha, 333 F.3d at 18. The agency decision is "upheld if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Under the substantial evidence standard, "[t]o reverse the BIA finding, we must find that the evidence not only supports that conclusion, but compels it...." Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812 (emphasis in original).
Afful testified that she had a fear of persecution on account of her affiliation with the Popular Front Party ("PFP"), a political group opposed to the military regime in Ghana run by General Jerry Rawlings. According to her testimony, Afful attended PFP rallies two to three times a month. She helped her two brothers, Safo-Adu and Joe Donkor, by distributing leaflets, participating in meetings, and keeping important party documents that were critical of military rule. She testified that her brother took the papers from her around 1984. When the Immigration Judge asked Afful what happened in the five years between 1984 and 1989 when she left Ghana, Afful testified that her brother was arrested and that the government was mistreating people. Afful testified that her brother Safo-Adu, a leader of the PFP, lost his property and was arrested at least three times by the government because of his involvement with the PFP. He was never physically harmed. Her brother Joe Donkor lost his job and had his house ransacked due to his membership in the PFP. Afful testified that the government was aware of her membership with the PFP because of her affiliation with her brothers, although she was never arrested.
Afful admitted that she used another person's passport to enter the United States. When asked why she had pled to entering the United States without inspection when she had actually entered with another person's passport, Afful responded that she was afraid. The Immigration Judge then asked Afful if she told her attorneys that she entered the United States using another person's passport. After the Immigration Judge admonished Afful several times to tell the truth, Afful testified that she had not told her attorneys but then contradicted herself and said that she had.
Afful's asylum application stated that she entered the United States on May 27, 1985; during testimony she admitted, however, that she actually entered in October 1989. The Immigration Judge asked Afful whether she told her attorneys about the incorrect date before or after it was filed with the INS. Afful had to be reminded repeatedly to answer the question and tell the truth fully before Afful stated that she told her attorneys about the incorrect date after the application was submitted to the INS. The Immigration Judge also asked Afful whether she told the immigration officer at her asylum interview about the incorrect date. Afful admitted that she did not tell the immigration officer about the incorrect date and instead told the officer that everything in her application was true.
A. Credibility Determination
The Immigration Judge found that Afful's testimony concerning her fear of returning to Ghana was not credible. "[W]hen a hearing officer who saw and heard a witness makes an adverse credibility finding and supports it with specific findings, an appellate court ordinarily should accord it significant respect." Aguilar-Solis, 168 F.3d at 571 (citations omitted). We begin by confirming that the Immigration Judge "offer[ed] a specific cogent reason for [his] disbelief." Qin v. Ashcroft, 360 F.3d 302, 306 (1st Cir.2004) (quoting El Moraghy, 331 F.3d at 205), and review the Immigration Judge's reason on the substantial evidence standard. Aguilar-Solis, 168 F.3d at 571.
The Immigration Judge discussed the fact that Afful's asylum application said she entered the country in 1985, when she actually entered the country in 1989. The Immigration Judge noted that Afful failed to inform anyone, including her attorneys, that she had fraudulently entered the country using someone else's passport. The Immigration Judge also discussed Afful's admission that she did not give truthful answers to the immigration officer who interviewed Afful under oath in connection with her asylum application. Finally, the Immigration Judge found that Afful's testimony was evasive and contradictory. These findings were amply supported by the record, which shows that the Immigration Judge had to ask Afful questions repeatedly before she answered, and that the Immigration Judge had to admonish Afful on numerous occasions to tell the truth. For example, the Immigration Judge had to ask Afful repeatedly if she told her attorneys that she had used another person's passport to enter the United States before Afful gave an answer that was both evasive and contradictory:
Q. I said did you [Afful] tell them [Afful's attorneys] that [you entered the United States using another person's passport]?
A. (No audible response).
Q. Ma'am.
A. My Lord.
Q. I'm asking you a question.
A. Yes, my Lord. I know.
Q. Well, what do you think we're here for? Okay. Did you tell them, your attorney that, or didn't you?
A. (No audible response).
Q. Ma'am.
A. My Lord.
Q. Please answer the question.
A. I know.
Q. I know. You know. I know. But answer the question. Did you tell your attorney that? That you used somebody else's name to come to the United States and you were admitted as a visitor?
A. (No audible response).
Q. You have to answer the question. It's either yes or no. Which is it?
....
Q. Well, tell the truth. Did you tell your attorney, who filled out your asylum...
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