Jibril v. Gonzales

• Citation: 423 F.3d 1129
• Decision Date: 19 September 2005
• Docket Number: No. 03-72118.,03-72118.
• Parties: Mustafe Muse JIBRIL, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

423 F.3d 1129

Mustafe Muse JIBRIL, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-72118.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 2005.

Filed September 19, 2005.

COPYRIGHT MATERIAL OMITTED

Salvador Colon, Fong & Associates, Houston, TX, argued the cause for the petitioner. Ali. M. Onan was on the briefs.

Teal Luthy Miller argued the cause for the respondent. Peter D. Keisler, Assistant Attorney General, Robert M. Loeb and Deborah Ruth Kant, U.S. Department of Justice, Washington, D.C., and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, were on the briefs.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-596-958.

Before: O'SCANNLAIN and RAWLINSON, Circuit Judges, and WHALEY,^** District Judge.

O'SCANNLAIN, Circuit Judge.

We must decide whether, under our case law, an immigration judge's adverse credibility finding is supported by the alleged implausibilities and inconsistencies in an asylum applicant's testimony and by his purportedly evasive and unresponsive demeanor while testifying.

I

Mustafe Muse Jibril is a member of the Yibir, a disfavored minority clan without land or power in Somalia, who has applied for asylum in the United States. According to his application, his clan is "the lowest clan," "scattered all over the country but . . . in the minority everywhere," they "hold no territory" and "have no militias to protect[them]." The Yibir are "considered outcasts even though [they] share the same language, culture and traditions and look the same as every one else in Somalia" and "cannot marry outside [the] clan because [they] are beneath the other clans." These facts are supported by the Department of State's Country Report.

Before the civil war that toppled the government of President Siad Barre, Jibril's father was a lieutenant-colonel in the army. President Barre promoted members of minority clans because they had no natural loyalties to the more powerful tribes and could be trusted to serve the regime loyally in exchange for government protection. After the Barre government collapsed, Jibril and his family feared retribution from majority clan militia because of his father's position under the former regime. The Country Report describes the risk of revenge attacks against "senior security or military officials of [Barre's] regime."

In March of 1991, after the fall of the government and in the face of imminent attacks from the United Somali Congress ("USC") militia, ten members of Jibril's family packed their belongings into a pick-up truck and fled to Kenya. Because of the limited room in the truck, Jibril and his brother stayed behind to collect more belongings with the intention of following two days later.

The next night, however, Jibril and his brother heard gun-fire in the street and saw a vehicle flying the USC flag pull up outside their house. They hid behind the front door, but the USC opened fire on the house, killing Jibril's brother and wounding Jibril in the stomach area. He fell inside the entrance, bleeding from his stomach, with his brother's body over his legs. When the militia soldiers entered the house, he closed his eyes and feigned death while he was kicked several times in the side. Satisfied that he was dead, the militia looted the house, taking bags of clothes, jewelry and money that the family had not taken with them. Jibril observed that the militia wore civilian clothes — one wearing a traditional Somali skirt — and carried Kalashnikov rifles. One soldier carried a rocket launcher. He also overheard their accents and some of their conversation.

After about half an hour to an hour, the militia left, giving him two final, hard blows to the head, during which he again refrained from responding. The next morning, about seven hours after he was shot, Jibril was found by neighbors who took him to a local school, which had been converted to a hospital by western volunteer doctors. Jibril was given a blood transfusion and operated on under anesthetic. The doctor told Jibril that the bullet had not damaged any organs and, after two weeks in hospital, he was released.

While he was recuperating, Jibril directed a neighbor to go back to his house to recover some money that he had hidden behind a cupboard before the militia attacked, which he used to pay for his transportation to Kenya. After he arrived in Mombasa, he found his family in the Otanga (or Utange) refugee camp. Jibril's family lived in the refugee camp until 1995, when it was closed for health and security reasons. The family then moved to Nairobi, where they joined the undocumented Somali ex-pat community and Jibril worked in a kitchen. In Nairobi, Jibril was arrested several times because he did not possess identity papers, but each time he was able to bribe the officials to obtain his release.

Over a period of several years, he accumulated $2,800 from relatives, including a relative in Saudi Arabia, who would wire the money to him in Nairobi, where another relative, who had Kenyan citizenship, would vouch for his identity. Jibril used this money to pay a smuggler, who arranged for his transportation under cover of forged documents via Paris and Mexico to the United States. Jibril entered the United States illegally in July, 1998, and filed his application for asylum on July 22, 1998.

At his hearing, Jibril conceded removability but sought asylum and withholding of removal. His asylum claim was based on his membership in a persecuted minority clan and on his father's status as a military officer in the late, disfavored Barre regime. The IJ did not find his testimony to be credible and denied both his claims.

On April 21, 2003, the Board of Immigration Appeals (the "BIA") summarily affirmed the IJ's decision. Jibril timely petitioned to this court.

II

Asylum is a form of discretionary relief that may be granted by the Attorney General to an applicant who qualifies as a "refugee," defined as one who refuses to return to his 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).

To establish a well-founded fear of persecution, Jibril must show his fear to be both objectively reasonable and subjectively genuine. See Fisher v. INS, 79 F.3d 955, 960(9th Cir.1996) (en banc). The objective component of this test "requires a showing by credible, direct, and specific evidence in the record, of facts supporting a reasonable fear of persecution on the relevant ground," id., which may be made by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant. Id.; 8 C.F.R. § 208.13(a) ("The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.").

In this case, the IJ did not find Jibril's testimony to be credible and there was no verifiable, corroborating evidence to support his story and bolster his credibility.

A

"[T]rivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible." Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (quotation omitted). Similarly, "`[m]inor inconsistencies' that `reveal nothing about an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding.'" Id. (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988)). Why a person who provides inconsistent testimony on any one matter should still be presumed credible as to all other matters is far from obvious, but such is the rule we are bound to apply.

In this case, the IJ found an apparent inconsistency between the fact that Jibril was "pretending to be dead while these six men presumably go into his house and trample over his body and that of his brother" and the fact that "he is able to see many details with respect to these men." Those details cited by the IJ are: "the type of weapon that they have, even to the point of telling what brand of rifle it is"; "that they have a special rocket launcher weapon"; "he is able to see their clothing and the type of clothing they have"; and "he is able to even hear what they are saying."

First, the IJ ignored the fact that Jibril initially saw the militia through the window, before he was shot, which could account for some of the observations. Second, the observations that Jibril did make are not the sort that would require long or detailed study; on the contrary, they are no more detailed or extensive than the sort of first impressions one would record at a glance. For example, it is unsurprising that he recognized that the militia carried Kalashnikov rifles-a sight that would be familiar to a Somali native given the ubiquity of AK-47s in Africa. The IJ mistakenly thought that "Kalashnikov" referred to a brand name rather than the most common model of machine gun in the world, which is made both under brand and piratically. Similarly, Jibril described the militia as wearing "traditional Somali dress," but when pressed for further detail could not provide it, saying that "I was not looking at them fully, I was hiding that I was alive and that I was looking at them." The IJ cites Jibril's partial knowledge of what the militia soldiers were wearing as evidence of inconsistency, but it is the opposite: he could only describe their pants and shirts, not what they wore on their heads, which fits with the observations of a man lying on the ground. Finally, that Jibril was able to hear what the soldiers were saying is in no way inconsistent with the fact that he was lying on the floor, pretending to be dead.

The IJ also found that Jibril testified inconsistently about whether or not his father told him where he was taking the family when they fled. According to the IJ, "[i]nitially, he said...