Kalouma v. Gonzales

Decision Date28 August 2007
Docket NumberNo. 03-74488.,03-74488.
Citation512 F.3d 1073
PartiesJohn KALOUMA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Mark A. Teeter, Newport Beach, CA, for the petitioner.

Carol Federighi, Assistant United States Attorney, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A78-535-064.

Before: JOHN T. NOONAN, RICHARD A. PAEZ, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge NOONAN:

Dissent by Judge TALLMAN.

ORDERS AMENDING OPINION AND DISSENT AND AMENDED OPINION AND AMENDED DISSENT

ORDER

The opinion filed on August 28, 2007 is amended as follows:

Slip op. page 10750[2], 499 F.3d at 1092, Strike the paragraph in its entirety and substitute the following:

On petition for rehearing, the government how supports its case by citation of Farah v. Ashcroft, 348 F.3d 1153 (9th Cir.2003). No question exists that an asylum seeker must show that he is a refugee. In the first instance that decision belongs to the IJ. We do not intrude upon it but remand for the decision to be made free of the alleged statutory burden added by the IJ that Kalouma had to prove he is who he says he is under § 1158(d)(5)(A)(i). He did provide information as to his birth, his birthplace, his parents, his nationality and his religion. The IJ gave no reason for finding this identification insufficient or incredible except for the misread statute. The IJ should have the opportunity to assess Kalouma's testimony absent the conviction that the person before him could not be a refugee because he could not demonstrate who he was under § 1158(d)(5)(A)(i). The amended statute does not, as the IJ appeared to think, impose a heightened standard of proof on Kalouma as to his identity.

On remand, it will be appropriate for the IJ to assess Kalouma's credibility afresh apart from a specific statutory burden under § 1158(d). Part of his case, of course, must be satisfactory proof of his refugee status in which identity operates as an element. Farah v. Ashcroft, supra at 1156.

As instances where his underlying scepticism as to identity led the IJ to distort or misread petitioner's testimony, we may cite the following:

(1) In his asylum application he stated that he watched his uncle murdered in the hut. In his testimony, Kalouma stated that his uncle died one week after he was beaten in the hut. Finding these two statements inconsistent, the IJ either showed unfamiliarity with American idiom or a determination to discredit Kalouma as if he were a liar. It is perfectly idiomatic, not inconsistent, to say you saw a man being murdered in one place and that he died later at another. John Wilkes Booth murdered Abraham Lincoln in Ford's Theater. Lincoln died nine hours later at a neighboring house. It would be absurd to say Lincoln died at the theater or that he was murdered at the house. American idiom divides in two the cause of death and the result.

(2) Kalouma told the Border Patrol that he had come to America for an education for four years before returning to Sudan. He later applied for asylum as a refugee. The IJ treated these two positions as inconsistent, establishing Kalouma's insincerity. The IJ either showed ignorance of the way aliens learn of the asylum process or a predetermined disbelief in Kalouma's credibility. Arriving at the border of the United States, an alien may well have a four-year college education uppermost in his mind. He will probably know little or nothing of the asylum application process. He will certainly not know that he needs to begin the process by claiming asylum before an agent of the Border Patrol. That Kalouma had two motives in coming here proves nothing as to his truthfulness.

(3) In his asylum application Kalouma did not cite specific instances of mistreatment and in his testimony he gave only four incidents of mistreatment, although he testified that he had been beaten many times. The IJ thought the omissions undermined the petitioner's credibility. So concluding, the IJ revealed either air unawareness of the asylum process and the nature of testimony at the merits hearing or a partiality inclining him to distrust the petitioner. Anyone who has had any experience with asylum cases is aware that asylum applications are usually slapped together with little or inexpert legal advice and that they rarely tell the asylum-seeker's whole story. They are not a preview of the petitioner's testimony. They are not required to be. To fault an applicant because he omitted some fact of significance would be to rule a priori that most asylum applicants are liars because they fail to lay out their case before they get to the judge. As to the "many" beatings, the adjective is imprecise and emphatic. If you or I were mistreated four times on account of our faith, we might well say that we'd been beaten many times. Three examples are usually considered enough to establish a point. A fourth is supererogatory.

So, in this opinion, three examples of the IJ's non-credible credibility findings are enough to show that this IJ did not assess Kalouma's testimony unimpeded by the IJ's assumption as to Kalouma's specific statutory burden.

With these amendments, the petition for rehearing is denied. Judge Tallman would grant the petition for rehearing. No further petitions for rehearing will be entertained.

ORDER

Judge Tallman's dissent, filed on August 28, 2007, is to be stricken in its entirety and replaced by the following:

"RICHARD C. TALLMAN, Circuit Judge, dissenting:

I respectfully dissent.

On petition for rehearing, the majority now agrees that proof of identity is an element of the petitioner's asylum claim. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (citing identity as a key element of the asylum application); Matter of O-D-, 21 I. & N. Dec. 1079, 1081 (BIA 1998) (en banc) (noting that an asylum applicant bears the burden of establishing identity). We also agree that 8 U.S.C. § 1158(d) places no additional burden on an asylum applicant. Rather, as the majority points out, that statutory provision requires the Attorney General to follow certain procedures before granting an asylum application. In interpreting that provision otherwise, the IJ erred.

We disagree on the effect of that error on the IJ's determination of Kalouma's credibility. In my view, the IJ's determination that Kalouma had not proven his identity was supported by substantial evidence in the record, and we can reverse that determination only if Kalouma's evidence is "so compelling that no reasonable factfinder" could have found otherwise. Garrovillas v. INS, 156 F.3d 1010, 1015-16 (9th Cir.1998). On this record, the 1J raised a legitimate concern over Kalouma's identity, a concern at the heart of his asylum petition, and the inability to confirm his identity constitutes a cogent and substantial reason supporting the adverse credibility determination. After articulating reasons doubting Kalouma's identity, the IJ could properly consider the lack of any proffered documentary evidence to corroborate who he says he is. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004).

Moreover, even if we put aside the issue of identity, we should nonetheless deny Kalouma's petition for review because the IJ gave completely independent, sufficiently cogent, and substantial reasons for finding Kalouma incredible, and these findings went to the heart of Kalouma's asylum application—inconsistencies in the alleged past persecution against him and his family, and questionable fear of future persecution based on race and religion.

The majority fails to credit as an independent ground for denying Kalouma's petition several specific adverse credibility findings, particularly those based on (1) Kalouma's conflicting statement in his asylum affidavit that his family was "abducted" when he later testified that his family "voluntarily" left Sudan, (2) Kalouma's inability to recall more than four incidents of personal mistreatment despite his claim that he had been beaten up many times, (3) Kalouma's confusing and inconsistent details about his uncle's alleged torture,1 (4) Kalouma's omission from his asylum application of incidents of mistreatment directed at him,2 (5) Kalouma's admission to the Border Patrol that he came to the United States for an education,3 and (6) Kalouma's return to Sudan after 1998 notwithstanding the claimed persecution against him, his uncle, and his sister. Not one of these grounds supporting the adverse credibility determination relates to Kalouma's inability to prove his identity.

As required by our law, the IJ identified these specific and cogent reasons for disbelieving Kalouma's credibility, they go to the heart of his claim, and it is improper to disregard them absent evidence compelling us to do so. See Singh-Kaur, 183 F.3d at 1153. Notwithstanding the IJ's error in statutory interpretation of § 1158(d), we should deny Kalouma's petition based on the IJ's sound adverse credibility determination which is adequately supported by substantial evidence in the record, and which is the ground upon which the Board upheld the denial of asylum.

I respectfully dissent."

OPINION

NOONAN, Circuit Judge:

John Kalouma petitions for review of a decision of the Board of Immigration Appeals ("the Board") summarily affirming the decision of an Immigration Judge denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. Holding that the Immigration Judge ("IJ") committed an error of law that permeated his decision, we reverse and remand.

FACTS AND PROCEEDINGS

John Kalouma entered the United States in March 2001, was intercepted by the Border Patrol, identified himself as Sudanese, and was promptly charged with inadmissibility. At a hearing before the IJ in 2001, Kalouma admitted the charge and...

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