Hamida v. Gonzales

• Decision Date: 07 March 2007
• Docket Number: No. 06-3134.,06-3134.
• Citation: 478 F.3d 734
• Parties: Rached Hamida Ben HAMIDA; Sonia Houcine Ben Hamida, Petitioners, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

478 F.3d 734

Rached Hamida Ben HAMIDA; Sonia Houcine Ben Hamida, Petitioners, v. Alberto GONZALES, Attorney General, Respondent.

No. 06-3134.

United States Court of Appeals, Sixth Circuit.

Argued: February 2, 2007.

Decided and Filed: March 7, 2007.

ARGUED: Marshal E. Hyman, Marshal E. Hyman & Associates, Troy, Michigan, for Petitioners. John W. Blakeley, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Marshal E. Hyman, Russell R. Abrutyn, Marshal E. Hyman & Associates, Troy, Michigan, for Petitioners. Sara L. Niles, Mark L. Gross, United States Department of Justice, Washington, D.C., for Respondent.

Before MARTIN, COLE, and GILMAN, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Rached Hamida Ben Hamida (Rached) and Sonia Houcine Ben Hamida (Sonia), husband and wife, appeal the denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture. Because the BIA's adverse credibility finding was supported by substantial evidence, we deny their petition.

I

The Ben Hamidas are natives and citizens of Tunisia, who married there in 1996. They entered the United States on August 13, 1999, as nonimmigrant visitors for pleasure, with permission to remain until August 12, 2000.¹ Since their arrival in the United States, Rached and Sonia have had three children. (Sonia was pregnant with their third child at the time of their hearing before the IJ.) On May 9, 2000, while still lawfully in the United States, they applied for asylum with the Immigration and Naturalization Service.

Following a merits hearing on September 8, 2004, the Immigration Judge (IJ) denied their applications for relief and ordered the Ben Hamidas to be removed to Tunisia. The IJ found that Rached's story (explained in detail below) was inconsistent with his application, corroborative witnesses, and a corroborative document pertaining to his incarceration. The IJ further found that even if Rached were to be believed, nothing in his story would have risen to the level of past persecution. On January 10, 2006, the Board of Immigration Appeals (BIA) adopted and affirmed the IJ's decision in a one-page order. The BIA agreed with the IJ's conclusion that Rached was not credible and his explanations for the inconsistencies in his story were unavailing. We have jurisdiction to review the BIA's final order of removal pursuant to Section 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1).

II

A

The IJ, acting on behalf of the Attorney General, has discretionary authority to grant asylum to those applicants who qualify as "refugees." 8 U.S.C. § 1158(b)(1). Thus, the determination of whether to grant asylum is broken down into two inquiries: (1) whether the applicant qualifies as a "refugee" under section 1101(a)(42)(A); and (2) "whether the applicant merits a favorable exercise of discretion by the Attorney General." Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003) (internal quotation marks and citations omitted). A refugee is someone unwilling to return to his or 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).

We review factual findings, which include adverse credibility findings, under the substantial evidence standard. Yu v. Ashcroft, 364 F.3d 700, 703 & n. 2 (6th Cir.2004). These findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). An adverse credibility finding should be based on the heart of an asylum applicant's claim, not "based on an irrelevant inconsistency." Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004) (quoting Daneshvar v. Ashcroft, 355 F.3d 615, 619 n. 2 (6th Cir.2004)). Because the BIA issued a brief order which adopted the IJ's findings, we review the IJ's decision directly. Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.2005).

B

After a review of each individual basis used to support the IJ's adverse credibility finding, we conclude that while many were irrelevant, or in fact, not even inconsistent, there is sufficient inconsistency in the record to support the IJ's conclusion, especially in light of the extremely deferential standard of review to which we must adhere. See Sylla, 388 F.3d at 925-26 (explaining that under the substantial evidence standard, "[a] reviewing court should not reverse `simply because it is convinced that it would have decided the case differently'") (quoting Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir.1992)).

i. The IJ's Proper Reliance on Certain Inconsistencies

Rached claims that he was persecuted by the Tunisian government for being a member of the Islamic Orientation Movement, although he denies this affiliation.² According to Rached, his problems began in 1987, when the Tunisian police broke into his house while he was studying for his high school final exams. Although his brother Mohamed was arrested, Rached claims that he was somehow able to escape arrest. However, later that year, Rached was arrested when he went to the police station to submit a paper for school, and allegedly remained in jail for two months thereafter. Although Rached's asylum application did not provide details of his detention, in his reply letter³ to the INS's Intent to Deny letter, and later during his hearing, Rached claimed that while he was imprisoned he was kept in a dirty cell, not provided with enough food, and often not allowed to sleep. Rached also stated that while he was not beaten, the guards threatened to sexually assault him and placed a big dog in his cell at night. Rached contends that for the twelve years between his release from prison and his departure to the United States, he was under constant surveillance, police came to his home multiple times a year, and he was required to report to police on a daily basis.

Rached alleges that after two months in jail, he was released, and that six months after his release, the case against him was dismissed. As proof of his time in jail and subsequent release, Rached provided a translated document from the Ministry of Justice in which Rached was named as "suspect number 31." Joint App'x at 230-232. The IJ took issue with the fact that the translated document does not provide any discussion of suspect number 31's alleged crimes, although the document contains discussion of allegations against other suspects. Further, nothing in the translated document demonstrates that Rached and suspect number 31 are the same person. Ultimately, the IJ concluded that there was no evidence whatsoever that Rached had ever been arrested. While this lack of evidence is not technically an inconsistency, the omission undermines Rached's reliance on the alleged arrest as evidence of persecution.⁴

We also find that Rached's inconsistent statements regarding his education and employment provide adequate grounds upon which to base an adverse credibility finding. The IJ found it unusual—and we agree—that despite his alleged problems with the government, Rached was still able to obtain a high school diploma and undergraduate and master's degrees from the University of Tunis, a free, government-sponsored university. Rached contends that he avoided getting into trouble with the government because his school used a blind grading method. But this does not explain why the government would have allowed Rached to enroll in the school in the first place. The adverse credibility finding is thus supported by the seeming inconsistency of the government allowing Rached to complete college and graduate school, and even paying for it, but going out of its way to prevent him from getting a teaching job after graduation.⁵

There is a great deal of confusion regarding Rached's employment in Tunisia. At his hearing, Rached claimed that in 1992 he briefly held a job as a teacher at a government school, but after forty days as a government teacher, the Minister of Education sent him a letter firing him "because of political reason [sic] because [he] was arrested." Joint App'x at 87. In his asylum application, Rached stated that he was unemployed due to the government's accusations that he belonged to the Islamic Movement. The IJ found his statement that he was unemployed to directly contradict the biographical information attached to his application, which provided that he worked as a "private teacher" at a "private school" for four years and two months. In his later testimony at his hearing, Rached attempted to clarify by explaining that because the government barred him from working as a teacher, he was forced to secretly tutor small groups of students.

The IJ found these inconsistencies to be particularly noteworthy because Rached claimed in his personal statement attached to his asylum application that when he went to the Ministry of Interior to ask why he could not get a job teaching, he was told: "[y]ou are an opponent of the government. Therefore, you are deprived of work, even teaching at private institutions and private lessons." Joint App'x at 40-41 (quoting Joint App'x at 248) (emphasis added). Yet Rached still was able to earn an income after being fired. Further, at oral argument, the Ben Hamidas' attorney stated that Rached was only prevented from obtaining government work. Thus, Rached has been entirely inconsistent in explaining the extent of this alleged teaching ban—an issue we deem central to his claim of persecution.

The strongest basis for the IJ's adverse credibility finding concerns the length of Rached's employment. Rached claimed in his reply to the INS's Intent to Deny letter, and Sonia agreed during the hearing when the letter was read to her, that Rached privately tutored for two years. But as mentioned above, Rached's asylum application stated that he worked as a "private teacher" in a "private school" for four years and two...