Desta v. Ashcroft

• Decision Date: 14 April 2004
• Docket Number: No. 03-70477.,03-70477.
• Citation: 365 F.3d 741
• Parties: Tilahun Fantaye DESTA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

365 F.3d 741

Tilahun Fantaye DESTA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-70477.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2004.

Filed April 14, 2004.

COPYRIGHT MATERIAL OMITTED

Dario Aguirre, Linda Pollack, Aguirre Lappin & Grande, San Diego, California, for the petitioner.

Janice K. Redfern, Christopher C. Fuller, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: Procter Hug, Jr., Arthur L. Alarcón, and William A. Fletcher, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

We review a denial of asylum for petitioner Tilahun Fantaye Desta. Desta applied for asylum after leaving Ethiopia, where he claims to have been beaten and imprisoned for his participation in two political groups that oppose the Ethiopian government. The Immigration Judge ("IJ") found Desta not credible and denied his application. The Board of Immigration Appeals ("BIA") affirmed. Desta timely petitioned this court for a review of the BIA's decision. Because the BIA's decision (and the IJ's decision underlying it) is supported by substantial evidence, we deny Desta's petition for review.

In addition to denying Desta's application for asylum, the IJ granted Desta a sixty-day voluntary departure period, beginning on the date of his decision on Desta's application for asylum. The BIA then renewed the voluntary departure period, granting Desta thirty days to depart, now beginning on the date of the BIA's decision. Twenty-five days after the BIA's decision, Desta moved in this court for a stay of removal. The government filed a statement of non-opposition, and we continued the temporary stay of removal pursuant to this circuit's General Order 6.4(c). Desta later filed a motion to stay voluntary departure, but when he filed this motion his thirty-day voluntary departure period had expired. The substantive standards are the same for granting a motion to stay removal and a motion to stay voluntary departure.

We construe Desta's motion to stay removal, filed within the thirty-day period, as including a timely motion to stay voluntary departure. Thus we hold that the temporary stay continued under General Order 6.4(c) stays not only removal but also voluntary departure. The stay of voluntary departure preserves the number of remaining days Desta had to depart voluntarily while we consider the merits of Desta's petition for review.

I. Background

Desta entered the United States on a tourist visa on July 13, 1996. He applied for asylum, but the application was denied, and the former Immigration and Naturalization Service ("INS")¹ instituted removal proceedings. In the removal proceedings, Desta requested asylum and withholding of removal.

Desta and his former wife are from the Addis Ababa area of Ethiopia, and are Amaric, a minority group in Ethiopia. Desta testified at the hearing before the IJ that he was a member of the All Ahmara People's Organization ("AAPO") as well as the Ethiopian Medhin Democratic Party ("Medhin"), both of which have been critical of the Ethiopian government. Desta testified that he provided monetary and logistical support to these organizations, and offered as proof letters purporting to confirm his membership in these organizations as well as a purported AAPO membership card.

According to Desta's testimony, on May 29, 1995, at 2 a.m., government officials arrested Desta and interrogated him about supposed anti-government activities. During the course of the interrogation, he was forced to run barefoot on rocks and was put in a barrel filled with cold, smelly water. Following the interrogation, Desta was placed upside down in a chair suspended from the ceiling and was beaten on the bottoms of his feet. This continued until he was unconscious. When he was released three days later, he was treated by his physician for a broken toe, and placed in a cast for two months.

According to his testimony, Desta was again arrested on August 10, 1995. While in custody, he was forced to sign a document admitting allegations of participation in an "anti-peace" movement, and as a result was sentenced to three months in jail. During this period, he was temporarily released to work as a "load master" in London for three days for Ethiopian Airlines, his employer both before and after he was jailed. Desta's then-wife testified before the IJ that she was taken into custody by government officials while Desta was in jail. While in custody, she was questioned about her husband's activities, and subsequently raped. Following his release from jail, Desta worked for Ethiopian Airlines for approximately one year. He then came to the United States.

The IJ denied Desta's application for asylum and withholding of removal based on an adverse credibility finding. The IJ concluded that the letters documenting Desta's membership in the AAPO and Medhin, and his AAPO membership card, were "possibly" fraudulent. He also pointed to inconsistencies in Desta's testimony as to how long he wore his cast, and to inconsistencies about the date on which his former wife had been raped. Finally, the IJ found it "implausible" that the Ethiopian government had forced Desta to work as a load master in London during the period he was otherwise in jail.

The IJ denied Desta's request for asylum and withholding of removal, but granted Desta's request for voluntary departure. On January 8, 2003, in an order adopting the decision of the IJ as its own, the BIA affirmed both the denial of the application for asylum and withholding of removal, as well as the grant of voluntary departure. The BIA gave Desta thirty days from the date of its decision to depart voluntarily from the United States.

Desta timely petitioned to this court for review of the BIA's decision. He filed a motion to stay removal on February 3, 2003, twenty-five days after the BIA's decision. The Attorney General filed a notice of non-opposition, and in accordance with the procedures laid out in De Leon v. INS, 115 F.3d 643 (9th Cir.1997), and this circuit's General Order 6.4(c), this court continued the temporary stay of removal on March 31, 2003. On November 7, 2003, Desta filed a motion to stay voluntary departure which was opposed by the Attorney General.

II. Asylum Application

To be eligible for asylum, an individual must show that he is unwilling or unable to return to his country of origin "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." Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (quoting 8 U.S.C. § 1101(a)(42)(A)). Not only must the petitioner show that he or she subjectively fears persecution, but he or she must also offer "credible, direct, and specific evidence in the record" to show that persecution is a reasonable possibility. See Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995). Because the IJ based his decision to deny asylum on an adverse credibility determination, he must provide "specific, cogent reasons" to support his determination. See Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir.2000). These reasons cannot be peripheral, but rather must go to the heart of petitioner's claim. See de Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir.1997). Because the BIA adopted the decision of the IJ as its own, we review the decision of the IJ. See Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.1995).

We hold that there was substantial evidence to support the IJ's decision. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Among other things, there was support for the IJ's conclusion that several documents may have been fraudulent, including the letters and membership card offered to show that Desta was a member in the AAPO and Medhin. The genuineness of these documents goes to the heart of his claim. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000). Further, there were material inconsistencies in petitioner's testimony concerning the extent of his injuries, as well as in the wife's testimony as to the circumstances of her alleged rape. These inconsistencies also go to the heart of petitioner's claim. We therefore deny on the merits Desta's petition for review.

III. Motion to Stay Voluntary Departure

Whether and in what circumstances this court has the power to entertain a motion to stay voluntary departure when that motion is filed after the period for voluntary departure has expired is an issue of first impression in this circuit. We expressly left this question open in El Himri v. Ashcroft, 344 F.3d 1261, 1263 n. 2 (9th Cir.2003). Other circuits have disagreed on the question. The First Circuit has concluded that it has plenary authority to reinstate an expired period of voluntary departure. See Velasquez v. Ashcroft, 342 F.3d 55, 59 (1st Cir.2003). By contrast, the Tenth Circuit has concluded that it may not grant an untimely motion to stay voluntary departure. See Sviridov v. Ashcroft, 358 F.3d 722, 731 (10th Cir.2004). We take a middle course in this case. We construe Desta's motion to stay removal, filed before the thirty-day voluntary departure period had expired, as including a motion to stay voluntary departure. We do not reach the question that would be presented if Desta had not filed a motion for stay of removal within the thirty-day voluntary departure period, but rather had merely filed a motion for a stay of voluntary departure after the expiration of the thirty-day period.

We are guided by two principles in determining the extent of our authority under the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). First, we narrowly construe the sections of IIRIRA limiting judicial review and the exercise of courts' traditional equitable powers. See Andreiu v. Ashcroft, 253 F.3d 477, 481 (9th Cir.2001) (en banc) (citing Reno v. American-Arab...