Clemente-Giron v. Holder

• Citation: 556 F.3d 658
• Decision Date: 10 February 2009
• Docket Number: No. 07-3895.,07-3895.
• Parties: Irene CLEMENTE-GIRON, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>1</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

556 F.3d 658

Irene CLEMENTE-GIRON, Petitioner, v. Eric H. HOLDER, Jr.,¹ Attorney General, Respondent.

No. 07-3895.

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2008.

Filed: February 10, 2009.

Christopher A. Seidl, argued, Cristina Parra Herrera, on the brief, Minneapolis, MN, for petioner.

Andrew Oliveira, argued, Washington DC, for respondent.

Before WOLLMAN, SMITH and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Irene Clemente-Giron petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the immigration judge's ("IJ") denial of her application for asylum, withholding of removal, and protection under Article 3 of the Convention Against Torture ("CAT"). For the reasons discussed below, we deny Clemente-Giron's petition.

I. BACKGROUND

Clemente-Giron entered the United States from El Salvador on June 7, 2001, as a visitor with authorization to remain until December 7, 2001. She filed an asylum application on January 8, 2002. In the application, Clemente-Giron claimed that El Salvadoran police persecuted her because of her religious beliefs and political opinions. She explained that she worked as a counselor for the Ministerio Liberacion, a group whose mission was to teach convicted criminals, gang members, and similar groups about the Bible. According to Clemente-Giron's application, in May 2001, police officers stopped her and others, pointed guns at the group, ordered them to put up their hands, and searched them. After Clemente-Giron told the police that she was a counselor with the Ministerio Liberacion, the police pulled her aside, interrogated her and threatened to put her in jail if they saw her again. Clemente-Giron also stated in the application that she was afraid of being tortured and raped if she ever returned to El Salvador. The application contained no mention of any other incidents of persecution suffered by Clemente-Giron.

On November 17, 2003, an asylum officer interviewed Clemente-Giron. During the interview, Clemente-Giron described an incident that occurred in April 2000. She claimed that she was praying in her home when police officers burst in and arrested everyone present. The police verbally insulted her but did not physically harm her. Shortly after this incident, Clemente-Giron visited the United States for four months. When she returned to El Salvador, she moved to a city fifty miles away from her previous home. Clemente-Giron stated that the situation was better in her new city, but on one evening in May 2001, some men, whom she believed were police officers in plain clothes, grabbed her Bible and hit her with it. Clemente-Giron explained that she knew the men were police officers, despite the fact that they were not wearing uniforms, because police officers do not wear uniforms when they "hurt someone." The asylum officer found Clemente-Giron ineligible for asylum because she was "not credible due to internal inconsistencies, inconsistencies with her [asylum application], and vague testimony lacking an appropriate level of detail."

After meeting with the asylum officer but prior to her hearing before the IJ, Clemente-Giron retained counsel. With her counsel's assistance, Clemente-Giron filed an affidavit in support of her asylum application. In this affidavit, Clemente-Giron detailed two additional incidents. The first occurred in 1997 or 1998. After a church meeting in her house, three men carrying guns, whom she believed were police officers in plain clothes, warned her and her daughter to stop talking to people about the Bible. The second incident occurred in 1999, when three uniformed police officers covered her mouth and eyes, threatened her, and told her to stop doing spiritual work. The affidavit did not mention the April 2000 incident that Clemente-Giron had discussed in her asylum interview.

The affidavit did, however, discuss the May 2001 incident. Clemente-Giron claimed that she and four others from her church group were praying with gang members in the middle of a soccer field when uniformed police officers arrived. The others ran away, but Clemente-Giron could not run. The policemen pointed guns at her and interrogated her. Clemente-Giron explained to them that she was part of the Ministerio Liberacion, which she believes led the police to assume that she was a revolutionary. She stated that the policemen then raped her repeatedly. The affidavit also recounted that Clemente-Giron did not report the incident to anyone and that it is extremely difficult for her to discuss the events of that night.

At Clemente-Giron's hearing, the IJ questioned her about why she had not previously presented allegations about the rape and the other instances of persecution. Clemente-Giron explained that she was ashamed but that she felt safer now. The IJ concluded that Clemente-Giron was not credible. He found that there were "very significant discrepancies" in Clemente-Giron's claims, including the fact that she referenced an additional incident of persecution at each successive step of the asylum process. Moreover, the IJ noted that Clemente-Giron did not mention the sexual assault until her affidavit was filed and that she was inconsistent in describing other details about the event. Because the IJ found that Clemente-Giron's explanation for these inconsistencies was not credible, he concluded that corroboration was needed. Clemente-Giron provided no corroboration, so the IJ denied her claims for asylum, withholding of removal, and protection under the CAT.

Clemente-Giron appealed the IJ's decision to the BIA, which found that the IJ's credibility determination was supported by the record. The BIA noted the inconsistencies between Clemente-Giron's application, her interview and her testimony, as well as her failure to provide corroborating evidence of her claims that she was involved with the Ministerio Liberacion and that she was mistreated by the police. The BIA found that the inconsistencies were central to Clemente-Giron's claim and that she failed to provide a convincing explanation for the discrepancies. Accordingly, the BIA dismissed the appeal and granted Clemente-Giron sixty days to voluntarily depart from the United States. After Clemente-Giron petitioned for review, we granted her motion for a stay of removal pending our decision on her petition.

II. DISCUSSION

"When the BIA adopts and affirms the IJ's decision, but also adds reasoning of its own, we will review both decisions together." Chen v. Mukasey, 510 F.3d 797, 800 (8th Cir.2007). We affirm the decisions if they are supported by substantial evidence, and we "will not disturb [the IJ's] findings of fact `unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Singh v. Gonzales, 495 F.3d 553, 556 (8th Cir.2007) (internal citation omitted) (quoting 8 U.S.C. § 1252(b)(4)(B)).

A person seeking asylum must show that she 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); see also 8 U.S.C. § 1158(b)(1). A person seeking withholding of removal "must demonstrate a `clear probability' that `his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Ezeagwu v. Mukasey, 537 F.3d 836, 839 (8th Cir. 2008) (quoting 8 C.F.R. § 1208.16(b)). An applicant seeking relief under the CAT must "establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2).

"The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 1208.13(a). "A credibility determination is a finding of fact, and we should accept adverse credibility findings `unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Redd v. Mukasey, 535 F.3d 838, 842 (8th Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). Moreover, "[w]hile minor inconsistencies and omissions will not support an adverse credibility determination, inconsistencies or omissions that relate to the basis of persecution are not minor but are at the heart of the asylum claim." Onsongo v. Gonzales, 457 F.3d 849, 853 (8th Cir.2006).² When the applicant's testimony is inconsistent, an IJ is entitled to require corroborating evidence. Esaka v. Ashcroft, 397 F.3d 1105, 1110 (8th Cir.2005). "The combination of an adverse credibility finding and a lack of corroborating evidence for the claim of persecution means that the applicant's claim fails, regardless of the reason for the alleged persecution." Redd, 535 F.3d at 842.

Because an applicant seeking withholding of removal faces a higher burden than an applicant seeking asylum, the failure to establish eligibility for asylum also means the applicant fails to establish eligibility for withholding of removal. Ibrahim v. Gonzales, 434 F.3d 1074, 1079 (8th Cir.2006). If the applicant's CAT claim relies on the same evidence as her asylum and withholding of removal claims, the court's adverse decision on asylum and withholding of removal will also be determinative of the CAT claim. Id. at 1080.

Clemente-Giron argues that the IJ and BIA's credibility determination improperly relied upon her failure to disclose the rape in her asylum application and interview and focused on minor inconsistencies. She contends that the IJ and BIA, therefore, improperly required corroborating evidence of her claims without sufficiently evaluating her explanation that she was too ashamed to discuss the sexual assault until she filed her affidavit and testified before the IJ. We disagree. The IJ and BIA's adverse credibility finding is supported by numerous material...