Marikasi v. Lynch, 16-3281

• Decision Date: 20 October 2016
• Docket Number: No. 16-3281,16-3281
• Citation: 840 F.3d 281
• Parties: Roselyne Marikasi, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

840 F.3d 281

Roselyne Marikasi, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

No. 16-3281

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 20, 2016

ON BRIEF: Larisa I. Schneider, Florence, Kentucky, for Petitioner. Alexander J. Lutz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: KEITH, McKEAGUE, and WHITE, Circuit Judges.

OPINION

DAMON J. KEITH

, Circuit Judge.

Petitioner Roselyne Marikasi (“Marikasi”) appeals the decision of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge's (“IJ”) denial of her asylum petition. On August 20, 2014, an IJ denied Marikasi's application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”) 8 U.S.C. § 241(b)(3)

and withholding of removal pursuant to the Convention Against Torture (“CAT”). The IJ determined that Marikasi was not a credible witness due to inconsistencies in her testimony and her failure to sufficiently corroborate her claims. The BIA affirmed the IJ's denial of Marikasi's applications for asylum and withholding of removal on all counts and ordered Marikasi removed to her native country of Zimbabwe. Marikasi timely appealed the BIA's decision on March 24, 2016. See 8 U.S.C. § 1252(b)(1).

For the following reasons, we AFFIRM the decision of the BIA.

I. BACKGROUND

Marikasi, a native citizen of Zimbabwe, legally entered the United States on January 19, 2002 on a non-immigrant visitor's visa with an expiration date of July 18, 2002. On November 25, 2002, Marikasi filed a form I–589 application for asylum and withholding of removal. Since she had overstayed her visa, her application was referred to the Immigration Court, and on September 25, 2003, the Department of Homeland Security commenced removal proceedings alleging that she was in violation of the INA, 8 U.S.C. § 1227(a)(1)(B)

. On July 11, 2005, Marikasi filed an amended Form I–589 application for asylum and withholding of removal.

In her initial application from 2002, when asked whether she had suffered from harm or mistreatment in the past, Marikasi stated the following:

I got married to a very abusive husband it all started when I kept having miscarriages and that was when beatings and death threats started from a man I was living woth [sic] everyday [sic]. He use [sic] to sleep with a knife under the pillow and he was accusing me of cheating on him and I was causing all the miscarriages.

She did not check the box provided for “political opinion” as a reason for seeking asylum, but instead checked “nationality” and “membership in a particular group.” This initial application made no mention that her husband was a government agent in Zimbabwe or that she or her husband were members of any political party. In the portion of the application that asked whether Marikasi had been a member of any organization, such as a political party in Zimbabwe, she mentioned only the Musasa Project for battered women.

In the 2005 amended application for asylum, Marikasi provided a different answer. In this application, when asked whether she had suffered from harm or mistreatment in the past, Marikasi stated:

I was tortured and mistreated by my husband who was a Government agent [in Zimbabwe] and by members of the ZANU PF [the leading party] because I belonged to the Movement for Democratic Change (MDC) [the opposition party]. My brother was brutalized and killed in 2002 by ZANU PF members because of my political activities in the MDC.

This time, Marikasi checked the box provided for “political opinion,” “membership in a particular group,” and “torture convention” as reasons for seeking asylum, but did not check the box for “nationality.” In response to the question concerning whether she had been involved in any organizations, such as a political party, Marikasi stated that she belonged to the MDC, Movement for Democratic Change in Zimbabwe and actively organized meetings, campaigns, and rallies.

Following the submission of these asylum applications and several corroborating documents, a hearing was first held before an IJ in 2006. The IJ found that Marikasi was not a credible witness. The IJ said her story “developed wings,” transitioning from a battered wife's story of domestic abuse at the hands of her husband to a political asylum story from an anti-government activist. As such, the IJ denied Marikasi's claim for asylum due to its lack of credibility and deemed her removable.

On appeal in 2011, the BIA remanded the case for further factual development regarding Marikasi's claim of domestic abuse.

Following remand in 2014, an IJ once again denied Marikasi asylum and withholding of removal under the INA and CAT. The 2014 IJ made the following findings concerning Marikasi's testimony: (1) Marikasi was inconsistent regarding the number of times she went to the hospital, when she went to the hospital, and what caused her husband to beat her so badly she had to go to the hospital; (2) Marikasi was inconsistent with regard to whether she reported the abuse she suffered; (3) Marikasi was inconsistent regarding her involvement with the Musasa Project for battered women; (4) Marikasi's testimony that she went into hiding from her husband in either April 2001 or October 2001 was inconsistent with evidence in both her initial asylum application and her amended asylum application; and (5) Marikasi was inconsistent in describing the reason or reasons why her husband would abuse her. Because domestic abuse was the central reason for her asylum application, the 2014 IJ held that her inconsistencies, and her stated explanations for them, warranted an adverse credibility determination.

In addition, the 2014 IJ held that Marikasi did not sufficiently corroborate her claims to meet her burden of proof on the issue of past persecution. Relevant corroborating documents included a medical record showing that there was a “scuffle” with her husband, an affidavit from a former co-worker to whom Marikasi confided regarding the alleged domestic abuse, a letter from an American psychologist reporting anxiety related to domestic abuse and a diagnosis of Post-Traumatic Stress Disorder

(“PTSD”), and a letter from a doctor in Zimbabwe reporting “political violence” she allegedly suffered in 2001. The BIA affirmed the IJ after according limited weight to the individualized evidence of corroboration proffered by Marikasi.

The 2014 IJ, however, made the following determinations in Marikasi's favor: (1) the Zimbabwean government is unable or unwilling to control domestic violence, and (2) women who suffer from domestic violence in Zimbabwe at the hands of a domestic partner and are unable to leave are sufficiently “particular” and therefore meet the requisite “social distinction” for asylum purposes. However, the 2014 IJ found that Marikasi was unable to demonstrate that her status in the domestic relationship with her husband was or is immutable because she could not show that she was unable to leave the abusive relationship and therefore failed to show that she was a member of this “particular social group.”

Next, the 2014 IJ held that Marikasi also did not meet the higher burden of proof for showing fear of future persecution. Similarly, the 2014 IJ found that she could not meet the higher burden required for withholding of removal under the INA or CAT.

Marikasi appealed the 2014 IJ decision to the BIA, which affirmed the IJ and dismissed the appeal. The BIA concluded that the 2014 IJ's adverse credibility determination was not clearly erroneous. The BIA also agreed that Marikasi failed to present sufficient corroborative evidence to rehabilitate her discredited testimony or independently satisfy her burden of proof. Further, it held that Marikasi waived the issue of whether she could avoid future persecution by relocating to another part of Zimbabwe and that she was not a member of an immutable group based on marital status because she did not show that she was unable to leave the marital relationship. Accordingly, the BIA dismissed the appeal.

II. DISCUSSION

A. Jurisdiction and Standard of Review

This court has jurisdiction to review a final order of removal from the BIA pursuant to 8 U.S.C. § 1252

. “The agency's findings of fact are reviewed for substantial evidence, and questions of law are reviewed de novo.” Abdurakhmanov v. Holder , 735 F.3d 341, 345 (6th Cir. 2012) (citing Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009) ). “The BIA's decisions are final agency determinations for purposes of judicial review, and we are also empowered to review the IJ's opinion to the extent that the BIA adopts that opinion.” Gaye v. Lynch , 788 F.3d 519, 526 (6th Cir. 2015)

.

“Credibility determinations are considered findings of fact, and are reviewed under the substantial evidence standard.” Sylla v. I.N.S. , 388 F.3d 924, 925 (6th Cir. 2004)

(citing Yu v. Ashcroft , 364 F.3d 700 (6th Cir. 2004) ). “This is a deferential standard: A reviewing court should not reverse simply because it is convinced that it would have decided the case differently.” Id . (internal quotation omitted). Rather, findings of fact, such as adverse credibility determinations, are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Liti v. Gonzales , 411 F.3d 631, 636 (6th Cir. 2005) (quoting Yu , 364 F.3d at 702 ). However, “[a]n adverse credibility finding must be based on issues that go to the heart of the applicant's claim.” Id . at 637 (quoting Sylla , 388 F.3d at 926 ).¹ Adverse credibility determinations “cannot be based on an irrelevant inconsistency.” Daneshvar v. Ashcroft , 355 F.3d 615, 619 n. 2 (6th Cir. 2004). “If discrepancies cannot be viewed as attempts by the applicant to enhance [her] claims of persecution, they have no bearing on credibility.” Id. at 623 (quoting Shah v. INS , 220 F.3d 1062, 1068 (9th Cir. 2000) ). Even where several inconsistencies cited by the IJ are irrelevant or do not go to the heart of the applicant's...