Akinmade v. Immigration and Naturalization

• Decision Date: 15 September 1999
• Docket Number: No. 97-71227,97-71227
• Parties: (9th Cir. 1999) DAVID OLUSEGUN AKINMADE, Petitioner, v. IMMIGRATION AND NATURALIZATION Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 951

196 F.3d 951 (9th Cir. 1999)

DAVID OLUSEGUN AKINMADE, Petitioner, v. IMMIGRATION AND NATURALIZATION Respondent.

No. 97-71227

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID

Argued and Submitted September 15, 1999--Pasadena, California

Filed November 5, 1999

Thomas P. Redick, McKenna & Cuneo, San Diego, California, for the petitioner.

Francis W. Fraser, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A72-898-030

Before: Stephen Reinhardt, Charles Wiggins, and Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Wiggins

REINHARDT, Circuit Judge:

David Akinmade petitions for review of the Board of Immigration Appeals' (BIA) decision denying his request for asylum and withholding of deportation. The BIA based its denial on an adverse credibility determination. That determination rests on insufficient and impermissible grounds. We deem the petitioner's testimony credible. We reverse the BIA's decision and remand so that the Attorney General may exercise her discretion under section 208(a) of the Refugee Act of 1980, 8 U.S.C. S 1158(a) (1990) with respect to petitioner's asylum request and grant his request for withholding of deportation.

I. FACTS

The petitioner testified to the following facts. In late 1994, Akinmade began his university studies at the Agege College of Technology in Lagos, Nigeria. Two months later, he decided to join the student union, a local chapter of the National Association of Nigerian Students (NANS). The union served as a forum for its members to discuss their grievances against the university and their political opposition to the military government, headed by the notorious General Abacha.

At the time Akinmade joined the student union, the political climate in Nigeria was heating up. Throughout 1994 and the first half of 1995, episodic civil unrest had been occurring in urban areas. The brutal Abacha regime had begun clamping down on dissent by escalating its harassment of prodemocracy groups such as labor leaders, journalists, and student activists. See U.S. Dep't of State Asylum Claims & C'ntry Condtns. Rept., July 1995. To stamp out any semblance of democratic expression, security forces resorted to excessive use of force including arbitrary detention, mass arrests, and summary killings of peaceful protestors. Id.

Despite the risks, Akinmade became an active member of the student union. He joined his college's NANS chapter on January 10, 1995 and attended the organization's following two monthly meetings. On March 28, 1995, Akinmade, along with fellow members of the student union, helped organize a peaceful demonstration in the Lagos city streets. Akinmade decided to participate in the demonstration because in his view "it was a crucial one": the demonstration was planned by NANS and it was primarily directed to the peaceful overthrow of the military dictatorship.

The student union began the demonstration on the street and walked through to the city center. There, they were confronted by the police who came specifically looking for members of the student union. The police opened fire killing fifteen students and injuring many more. The police also arrested and jailed twenty-five students, including the petitioner and the secretary of the student union. The police took Akinmade's fingerprints and confiscated his identification card.

In detention, Akinmade and other students were tortured by the police. The police used electrical shocks and cut parts of Akinmade's body with a knife. They also beat him by hitting his genitalia with a heavy stick. The students were later taken outside the jail and placed in two vehicles. Akinmade overheard one police officer informing another that they were taking the students to a place where no one would find them or find out what happened. Shortly before leaving, a distraction occurred and Akinmade, along with two other students, climbed from their vehicle and ran. The police fired at them, but Akinmade was able to escape. He hid for two days. He was told by friends that the police were looking for him and that his life was in danger. Akinmade then fled the country. He left Nigeria on March 30, 1995, and subsequently attempted to enter the United States at the Los Angeles International Airport on April 28, 1995.

With respect to his escape and his later entry, Akinmade testified that, with the help of a contact who worked with the immigration service, he left the country on a plane to South Korea. He chose South Korea because that country does not require a Nigerian passport-holder to carry a visa. In South Korea, Akinmade had difficulty communicating with others because the majority of Koreans do not speak English. Akinmade slept in subway stations and roamed the streets for several days. Akinmade asserts that he had the good fortune to meet a Canadian citizen who took pity on him. This person, he contends, secured him a false Canadian passport and paid for his airfare.

When Akinmade arrived at the Los Angeles International Airport, he was stopped by an immigration official and confronted with the fact that his passport was fraudulent. Akinmade acknowledged its falsity, explained that his life was in jeopardy in Nigeria, and requested asylum. The Immigration and Naturalization Service (INS) placed him in detention and commenced exclusion proceedings.

II. LEGAL PROCEEDINGS BELOW

On June 30, 1995, Akinmade's case was heard by an Immigration Judge (IJ) who denied his request for asylum and withholding of deportation on credibility grounds. The IJ concluded: (i) the petitioner made inconsistent statements regarding the nature of his torture by the Nigerian police; (ii) the petitioner made inconsistent statements regarding the number of demonstrations in which he participated; (iii) the petitioner did not provide sufficient details of the nature of his arrest and detention; and (iv) aspects of the petitioner's account, including his being a student activist and his escape from Nigeria, were implausible. Akinmade appealed to the BIA. The BIA dismissed his appeal, also on the basis of a credibility deter mination. The BIA relied, however, only on three factors, all of which related to Akinmade's fraudulent entry, namely, his inability to: (i) explain the prior chain of custody of the Canadian passport; (ii) demonstrate his time of arrival in South Korea; and (iii) establish his date of birth by an appropriate certificate. The BIA referred approvingly to the IJ's opinion, but did not expressly adopt the IJ's conclusions as its own. Akinmade petitioned the United States District Court for the Central District of California for habeas corpus relief. The district court granted Akinmade's petition. The court held that each of the three factors the BIA explicitly relied on in its decision constituted an illegitimate ground for an adverse credibility finding. The court remanded the record to the BIA instructing the BIA to render a decision without reference to these three factors and with an explicit clarification if it intended to adopt the IJ's findings. The INS did not appeal.

In October 1997, the BIA again determined that Akinmade's account was not credible and denied relief on that basis. Notwithstanding the district court's instructions, the BIA again referred to its rejection of petitioner's account concerning the chain of custody of his fraudulent passport. The BIA also announced several other reasons for reaching its adverse credibility determination, including: (i) that the petitioner's fraudulent entry into the United States was inconsistent with his claim to be fleeing persecution; (ii) that the petitioner made inconsistent statements regarding his role in the student union; (iii) that the petitioner made inconsistent statements regarding the nature of his torture by the Nigerian police; and (iv) that the petitioner failed to provide corroboration for various aspects of his account. In an explicit but general statement, the BIA also adopted the IJ's conclusions regarding other purportedly inconsistent and implausible statements in the petitioner's application. Akinmade petitioned for review and we took jurisdiction under 8 U.S.C. S 1105(a).

III. ANALYSIS

We review the BIA's credibility findings under the substantial evidence standard. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996). Minor errors or inconsistencies, however, "do not constitute `a valid ground upon which to base a finding that an asylum applicant is not credible,' " particularly where those inconsistencies reveal nothing about an applicant's fear for his safety. Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir. 1986) (citations omitted); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996). Adverse credibility findings must be supported by "specific, cogent reason[s]," Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987), and the reasons set forth must be "substantial and must bear a legitimate nexus to the finding." Aguilera-Cota v INS, 914 F.2d 1375, 1381 (9th Cir. 1990); Lopez-Reyes, 79 F.3d at 911.

A. Entry into the United States

The BIA erroneously concluded that Akinmade's fraudulent entry into the United States, namely his use of a false Canadian passport and his declaration that he was a Canadian citizen on a visit for pleasure, was inconsistent with his claim to be fleeing persecution.¹ The BIA stated: "[The applicant's] initial false declaration upon arrival into the United States is inconsistent with his claim that he was seeking asylum. Instead, his false declaration, together with his altered passport, is consistent with an attempt to enter the United States for a purpose other than to flee persecution." In Turcios, we held that an IJ's adverse credibility finding erroneously relied on the fact that the petitioner lied about his citizenship to INS...