Efe v. Ashcroft

• Decision Date: 20 June 2002
• Docket Number: No. 01-60314.,01-60314.
• Citation: 293 F.3d 899
• Parties: Kenneth EFE, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

293 F.3d 899

Kenneth EFE, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.

No. 01-60314.

United States Court of Appeals, Fifth Circuit.

June 20, 2002.

Morton Sklar (argued), World Organization Against Torture USA, Washington, DC, for Petitioner.

Patrick P. Shen (argued), U.S. Dept. of Justice, Immigration Litigation, Thomas Ward Hussey, Director, Linda Susan Wendtland, U.S. Dept. of Justice, Civ. Div. Immigration Litigation, Washington, DC, Roger D. Piper, U.S. Immigration & Naturalization Service, Houston, TX, Christine G. Davis, U.S. Immigration & Naturalization Service, District Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Appeal from the Board of Immigration Appeals.

Before STEWART and CLEMENT, Circuit Judges.^*

CLEMENT, Circuit Judge:

Kenneth Efe is a Nigerian citizen who attempted entry into the United States in January 1998. His testimony regarding the circumstances that brought him to the U.S. changed each time he presented his case, including to this Court. The main thrust of Efe's story is that he was involved in a political demonstration in Edo, Nigeria, in which he killed a police officer. Efe ran from the police for a number of months before boarding a ship that brought him to the U.S. He was stopped upon entry, beginning the process of immigration hearings that has culminated in this appeal.

For the following reasons, we AFFIRM the Board of Immigration Appeals' denial of all relief and its frivolous application ruling.

I. FACTS AND PROCEEDINGS

A. Facts

Efe has testified that in June 1997 he took part in a demonstration in Edo protesting the military government's refusal to install Abiola, who was legally elected to the presidency in 1993. According to Efe, police indiscriminately beat participants in the demonstration, including himself. Efe's story has varied as to just how the beating took place, e.g., what injuries he suffered, whether he was on the ground at any point, how many officers took part or witnessed the event. In one version of the story, he was on the ground while an officer was beating him and he grabbed a glass bottle, with which he hit the officer in the stomach. In the story he has used most often and gave in the first hearing before an immigration judge, Efe escaped to a house along the street where the demonstration was taking place and grabbed a knife. He returned to the street with the knife, fatally stabbed a police officer in the abdomen, and fled. Efe has altered his story as to whether the officer he stabbed was the one who beat him, as well as to whether he saw the officer's intestines fall out or only later learned that the officer died from the wound. Efe has stated that he had no control over his actions, that the devil took him over; he has also stated that he knew exactly what he was doing. It is unclear how Efe escaped the demonstration.

Efe claims to have fled to Kastina and then to Lagos, though how long and with whom he stayed in each place are uncertain. In December 1997, he boarded a ship at Port Island that brought him to the U.S. as a stowaway on or about January 22, 1998.

B. Proceedings

Efe was stopped coming into the U.S. The service asylum officer who gave Efe a "credible fear" interview found that he had a credible fear of persecution if returned to Nigeria. A hearing before the immigration court on the credible fear finding occurred on December 3, 1998. The immigration judge ("IJ") found that Efe was generally credible regarding his version of the demonstration, stabbing of the officer, and flight. However, based on dental records and observations of Efe during the hearing, the IJ explicitly questioned Efe's claim that he was thirteen when he arrived in the U.S. The IJ attributed Efe's vagueness about his age and birth date to attempts to mislead the court. The court ruled that the police beating Efe suffered constituted severe harm and that the police were probably searching for Efe and would detain, convict, and torture him if he returned to Nigeria. Nonetheless, the IJ determined that Efe's applications for political asylum and withholding of removal were statutorily barred under Section 208(b)(2)(A)(3)(i) of the Immigration and Nationality Act ("the Act"), because the harm Efe feared was due to a serious nonpolitical crime, specifically, the killing of a police officer. At that time, the IJ did not have authority to grant relief under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) ("Convention Against Torture" or "CAT").

On August 2, 1999, the Board of Immigration Appeals ("Board" or "BIA") remanded Efe's case to the immigration court for proceedings on the Convention Against Torture claim pursuant to regulations that became effective on March 22, 1999, after Efe's initial hearing. 64 Fed. Reg. 8478 (Feb. 19, 1999); Section 2242(b) of the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. 105-277, Division G (Oct. 21, 1998). On January 3, 2000, the immigration court denied withholding of removal under CAT due to the Section 241(b)(iii) bar but granted deferral of removal under CAT. The immigration court adopted the findings of fact and credibility from the first hearing.

The Board again remanded to the immigration court in June 2000, on a motion by the Immigration and Naturalization Service to reopen and remand. The Board ruled that previously unavailable material evidence called into question the credibility of Efe's story. The new evidence was the result of an investigation by a U.S. Embassy investigator, communicated via a State Department telegram. The investigator failed to find: information on Efe or his family in state, local, or police records in Owena Village, Benin, Nigeria; a primary school matching the one Efe claimed to have attended; and police records indicating a murder of a police officer in Edo in June 1997. Further, the former and only chairman of the SDP political party had not heard of Efe or his family, belying Efe's testimony that his father was an officer in the SDP.

A new hearing on the merits was held on August 18, 2000. On August 30, 2000, the IJ denied Efe's applications for political asylum and withholding of removal under Section 241(b)(3) of the Act and Article 3 of CAT. The IJ found Efe not credible, stating that Efe had changed his testimony concerning, among others aspects of the case, his name, age,¹ place of birth, schooling, places of residence, family members (e.g., their names,² whether he has a brother, whether he has an uncle in the U.S.), the extent and reason for his involvement in the demonstration, whether and, if so, how he stabbed an officer, with whom and where he stayed while fleeing the police, and his knowledge concerning the SDP party.³

The IJ ruled that the inconsistencies, contradictions, and improbabilities combined with the lack of corroborating evidence⁴ demanded that Efe come forward with more than background material and affidavits. The ruling stated that Efe had neither presented a plausible, coherent account of the basis for a well-founded fear of persecution, nor established that he was a victim of persecution. The IJ added a frivolous application for asylum ruling, finding that Efe had knowingly and intentionally made false statements on his asylum application and during his testimony with the purpose of obtaining asylum. The frivolous application for asylum ruling makes Efe permanently ineligible for benefits under the Act. INA § 208(d)(6).

On March 12, 2001, the Board denied Efe's appeal from the denial of all relief and the frivolous application ruling. The Board recognized that the State Department telegram was of limited probative value both in its finding regarding Owena Village and its vague comments about the SDP. Noting that the IJ never mentioned that Efe did not represent that his school was in Owena Village nor that the relevant events occurred there, the Board held that the negative credibility ruling did not rely heavily on the telegram but rather mainly on inconsistencies between the appellant's applications, hearings, statements, and exhibits. Efe has never explained these inconsistencies.

Appeal to this court followed.

II. ANALYSIS

A. Standard of Review

Efe is an "excludable" alien, technically not considered to have entered the U.S. He is entitled to a reasonably fair opportunity to apply for asylum relief and Convention Against Torture protection. See generally Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981). This court's jurisdiction to review the Board's decision is based on INA § 242(b), 8 U.S.C. § 1252(b) (1998).

We only review decisions made by the Board. Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.1991). We normally do not consider the rulings and findings of immigration judges unless they impact the Board's decision. Id. Since the Board adopted the IJ's findings and conclusions, we can review the IJ's findings here.

The Board's factual conclusions are reviewed for substantial evidence. Ozdemir v. INS, 46 F.3d 6, 7 (5th Cir.1994). Questions of law are reviewed de novo. We give great deference to an immigration judge's decisions concerning an alien's credibility. See Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994) (citing Mantell v. INS, 798 F.2d 124, 127 (5th Cir.1986)).

An agency's interpretations of the statutes and regulations it administers should be given deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the statute is "silent or ambiguous with respect to the specific issue," the court should ask "whether the agency's answer is based on a permissible construction of the statute." INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting Chevron, 467 U.S. at 843, ...