Bah v. Gonzales, 04-3454.

• Decision Date: 08 September 2006
• Docket Number: No. 04-3454.,04-3454.
• Citation: 462 F.3d 637
• Parties: Fatoumata Sira BAH, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

462 F.3d 637

Fatoumata Sira BAH, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 04-3454.

United States Court of Appeals, Sixth Circuit.

Argued: June 7, 2005.

Decided and Filed: September 8, 2006.

ARGUED:

Robert B. Huntington, Wayland, Massachusetts, for Petitioner. James E. Grimes, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Antonio Sambrano, Boston, Massachusetts, for Petitioner. James E. Grimes, Mary Jane Candaux, United States Department of Justice, Washington, D.C., for Respondent.

Before: SILER and GIBBONS, Circuit Judges; LAWSON, District Judge.^*

SILER, J., delivered the opinion of the court.

GIBBONS, J. (pp. 643-645), delivered a separate concurring opinion.

LAWSON, D.J. (pp. 645-650), delivered a separate opinion concurring in part and dissenting in part.

OPINION

SILER, Circuit Judge.

Petitioner Fatoumata Sira Bah seeks review of a final order of removal entered by the Board of Immigration Appeals ("BIA"). This order affirmed an Immigration Judge's ("IJ") decision to deny her applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We deny the petition for review.

I.

Bah is a native and citizen of Guinea. She claims that at the age of eight she was subjected to female genital mutilation ("FGM"). Additionally, she claims that she and her husband were members of the political party "Rally of the Guinean People" ("RPG"), an opposition party for which she claims her cousin Alpha Sow is a leader. She contends that she and her husband recruited new members to RPG and communicated decisions of the RPG leadership to the general membership.

Bah alleges that following the December 14, 1998, presidential election in Guinea, she and her husband attended an RPG meeting led by Sow. A demonstration was then held at party headquarters to protest the arrest of Alpha Condé, the RPG candidate. This demonstration was disrupted by the military and resulted in the arrest of many demonstrators, including Bah, who were detained at a military camp. She was initially placed in a large room with other detainees, but then was taken to a smaller room for questioning. She was later taken to a six square-foot cell equipped only with a bucket for personal use. After a night in the cell, she was released with the orders to cease demonstrating and to remain in town so as to be available for future questioning.

Upon her return home, Bah learned her husband was still detained. She claims she was questioned at her home every three days or so by three or four soldiers. She continued to participate in RPG activities which resulted in a second arrest in November 1999. She was ultimately taken to Sureté prison and placed in a small cell. She claims that evening she was beaten, leaving scars on her legs and ankles, and raped. She remained in Sureté for 18 months, during which time she was allegedly raped, interrogated about twice a month, and beaten about four times a month. She was released in May 2001 and supplied money for transportation.

At this time, Bah's brother arranged her transportation to the United States. She entered the country without permission, utilizing false travel documents. She applied for asylum stating that she had been persecuted on account of her involvement with the RPG. Bah was interviewed by an Asylum Officer who determined that she was not credible. The Immigration and Naturalization Service served a Notice to Appear charging her with being removable under 8 U.S.C. § 1182(a)(6)(A)(I), as an alien present in the United States without having been admitted. Bah subsequently "admitted the factual allegations contained in the Notice to Appear, conceded removability, and indicated an intention to apply for asylum, withholding of removal, and protection under the Convention."

Following a hearing, the IJ issued an oral decision finding Bah removable and denying her applications for asylum, withholding of removal, and relief under the CAT. The BIA affirmed the IJ's decision without written opinion under the streamlining procedure in 8 C.F.R. § 1003.1(e)(4) and designated the IJ's decision as the final agency determination for purposes of review.

II.

The IJ has discretion to grant asylum to any alien who qualifies as a "refugee," 8 U.S.C. § 1158(a) & (b), meaning an alien who is unable or unwilling to return to her home country "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). Even if the alien qualifies as a refugee the IJ may use his discretion to deny asylum. 8 U.S.C. § 1158(a) & (b). Therefore, a request for asylum involves a two-step inquiry: (1) determining whether the petitioner qualifies as a refugee, and (2) whether the petitioner merits a favorable exercise of discretion by the IJ. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004).

The IJ's factual determination as to whether the alien qualifies as a refugee is reviewed under a substantial evidence test. Id. The IJ's decision regarding eligibility for asylum is to be upheld if "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). And reversal is available only if the petitioner presents evidence sufficient that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. Yu, 364 F.3d at 702; Ouda v. I.N.S., 324 F.3d 445, 451 (6th Cir.2003) (reversal allowed if the evidence presented "not only supports a contrary conclusion, but indeed compels it.").

III.

A. "STREAMLINING"

Bah argues that the BIA's brief dismissal of her appeal constituted a violation of her due process rights. However, the BIA has the authority to affirm, without opinion, or issue a brief opinion, in any case in which the Board member concludes that there is no legal or factual basis for reversal of the decision by the Service or the IJ. 8 C.F.R. § 1003.1.¹ This provision permits the BIA to issue summary affirmances in immigration appeals meeting certain criteria. Bah suggests that the use of streamlining ignores the "assumptions of Congress concerning the administrative foundations" of administrative review. "This court, however, has recently examined the use of summary affirmances, concluding that their use does not violate due process." Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir.2004) (citing Denko v. INS, 351 F.3d 717, 726-30 (6th Cir.2003)).² Accordingly, the application of the streamlining process did not violate Bah's due process rights.

B. BAH'S CREDIBILITY

For asylum, Bah "must demonstrate that [she] qualifies as a refugee by producing evidence that [she] has suffered past persecution or has a well-founded fear of future persecution." Yu, 364 F.3d at 703. As stated above, the IJ's determination of Bah's credibility is reviewed under the highly deferential "substantial evidence" standard, and is reversed only if "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (emphasis added). As in Yu, the decision of the IJ regarding Bah's credibility should be upheld "because the IJ laid out numerous grounds for his adverse credibility finding." 364 F.3d at 703.

The IJ noted discrepancies between Bah's statements to the Asylum Officer during her earlier interview, her application, and her later testimony. Specifically, Bah claimed to be actively involved in the RPG to the point of attending national meetings of the party. She admitted, "I did not make decisions during these [headquarters] meetings, it was my job to inform the other members of the party of the decisions that had been made by the leaders and the reasons why these decisions had been made," and that she made clothes for the party and recruited members. The IJ remarked that "her level of involvement would not seem to entitle her to go to the meetings in Matan, although, perhaps, as a cousin of [Sow], she had special dispensation." When meeting with the Asylum Officer, however, she was neither unable to identify what the initials RPG stood for, nor was she able to describe the party logo. At her hearing before the IJ, she was able to identify the full name of the RPG, but was still unable to fully describe the logo.

Bah also stated in her application that only her husband was arrested at a protest on December 17, 1998, and that nearly a year later, on November 18, 1999, she was arrested and taken to Sureté. These claims were repeated in her interview with the Asylum Officer. However, both in her declaration and before the IJ she claims she was also arrested on December 21, 1998. Bah now contends that "this error was made by the person who originally filled out [the] asylum application, [and] that she did not correct it because she could not read English, and that she told the asylum officer the correct date." However, a translation error does not reconcile that on two instances she stated that she and her husband were arrested, and on two other instances she claimed that the two of them were arrested eleven months apart. Additionally, in her application, she failed to "provide a detailed explanation of [her or her] relatives' involvement" with RPG, as required; instead, she merely claimed to be a member of RPG and a supporter of Alpha Condé.

Initially, she described soldiers equipped with gas masks "fir[ing] tear gas canisters among and all over the people" following the December 1998 demonstration. Before the IJ she described what seems to be pepper spray — "It's something . . . spicy, something like when you eat it, its spicy and hot. . . . It's not actually gas," — sprayed into individual faces. There are also discrepancies regarding how she left the prison. In her initial application, she stated that on May 1, 2001, her brother arranged her escape from prison....