Mboowa v. Lynch

• Decision Date: 21 July 2015
• Docket Number: No. 13–1367.,13–1367.
• Parties: Henry MBOOWA, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

795 F.3d 222

Henry MBOOWA, Petitioner

v.Loretta E. LYNCH, Attorney General of the United States^* , Respondent.

No. 13–1367.

United States Court of Appeals, First Circuit.

July 21, 2015.

William P. Joyce and Joyce & Associates P.C. on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, and Erica B. Miles and James A. Hunolt, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Department of Justice, on brief for respondent.

Before HOWARD, Chief Judge, LYNCH and THOMPSON, Circuit Judges.

Opinion

HOWARD, Chief Judge.

Petitioner Henry Mboowa, a native and citizen of Uganda, asks us to review a Board of Immigration Appeals (“BIA”) order denying his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). The BIA upheld an Immigration Judge's (“IJ”) finding that Mboowa's testimony was not credible and, thus, that he was unable to establish eligibility for relief. After careful review, however, we conclude that the record does not support two of the purported discrepancies that the agency considered critical in discrediting Mboowa's account. In light of that finding, we grant Mboowa's petition, vacate the BIA's order, and remand for additional proceedings.¹

I.

Mboowa was born in Kampala, Uganda in 1976. He entered the United States through Newark, New Jersey on June 5, 2002, to work as a summer camp counselor as part of an exchange program. Although his J–1 visa authorized only a temporary stay until September 15, 2002, he has remained in the United States without authorization ever since.

On February 27, 2003, Mboowa applied pro se for asylum but an asylum officer denied his application. No further action was taken until February 13, 2008, when the Department of Homeland Security served Mboowa with a Notice to Appear in immigration removal proceedings. Mboowa appeared with legal counsel at an initial hearing on July 3, 2008, and conceded that the Notice to Appear's factual allegations were accurate. Nevertheless, Mboowa indicated that he would seek asylum, withholding of removal, and protection under CAT, and he proffered his original, 2003 asylum application as support for his claims.

Beyond his 2003 asylum application, Mboowa has recounted the events underlying his claims on several occasions. At the initial hearing on July 3, 2008, in addition to submitting his original application, he provided several documents purporting to corroborate his recollection of events and describing the political conditions in Uganda. Mboowa also filed additional corroborating documents and an affidavit on June 30, 2009. Mboowa then testified before the IJ on December 14, 2010, and once again filed additional supporting documentation.

The political situation in Uganda, where incumbent President Yoweri Museveni has remained in office since 1986, supplies the backdrop for Mboowa's claims. Mboowa alleges that he joined a “youth pressure group” called the Youth Unity Peace Initiative (“YUPI”) in 2000. Although initially focused on certain policy issues, the group become directly involved in electoral politics as the 2001 Ugandan presidential election approached. YUPI ultimately supported the opposition candidate, Colonel Besigye, whom Museveni would defeat in March 2001. Mboowa alleges that his membership in YUPI—and the group's support of Besigye—left Mboowa and his family vulnerable to persecution by those loyal to President Museveni, including the Ugandan military and intelligence services.

Mboowa's claims rest primarily on four incidents that took place between 2001 and 2002: a 2001 beating, a 2001 home invasion, the 2002 death of Mboowa's father, and the 2002 beheading of Mboowa's cousin. We briefly describe the facts central to those events according to Mboowa's testimony although, as discussed later, the agency identified certain purported inconsistencies in Mboowa's accounts.

On January 26, 2001, Mboowa and a YUPI colleague, Moses Sekibuule, were accosted and beaten in Kampala. Mboowa alleges that, while the two men were hanging campaign posters supporting Colonel Besigye, more than a dozen soldiers dressed in camouflage suddenly approached in a pick-up truck. They demanded that Mboowa and Sekibuule cease hanging the posters and ordered the two men to lie on the ground. The soldiers proceeded to whip, kick, and beat the two men for twelve to fifteen minutes. As a result of the beating Mboowa maintains that his injuries—a broken pelvis, deep wounds on his shins, cuts to his knees, and several cuts and a deep gash along the side of his head—required a three-week hospital stay. Sekibuule allegedly lost several teeth and sustained either a broken hand or a broken arm.

A second politically-motivated incident followed on February 28, 2001. Mboowa recalls that while he was sleeping several armed men broke into his residence, blindfolded him, ransacked his house, vandalized his property, and struck him on the jaw with the butt of a gun. Before departing, the men allegedly stole several YUPI files and Mboowa's membership card. Mboowa testified that he gathered the men were from the military intelligence agency because they warned him that “this was the price to pay for not supporting the incumbent president.”

The following month, President Museveni defeated Colonel Besigye in the 2001 presidential election. According to Mboowa, however, the consequences of supporting Besigye did not end with Museveni's successful reelection. One such consequence, Mboowa alleges, was the mysterious death of his father in March 2002. His father also had been politically active and, at the time of his death, was the Mobilizing Secretary for a second group, “Reform Agenda,” which also had supported Colonel Besigye. Mboowa asserts that, after not hearing from his father for several days, his family suspected that his father was “detained” (although he does not specify by whom). At some point, a local dispensary contacted the family and informed them that it was providing care for a man identifying himself as Mboowa's father. Upon finding his father malnourished and in poor condition, Mboowa moved him to a hospital. By the time they arrived at the hospital, Mboowa's father's tongue had turned entirely black, and his body was “cold and sweating.” Although the medical staff did not know “exactly what was wrong,” Mboowa testified that the hospital concluded his father “had signs of poisoning.” His father subsequently died during surgery.

Finally, Mboowa testified that his cousin, also an active member of YUPI, disappeared in April 2002 along with another colleague. The family lost contact with the cousin for a number of days but, upon reading a newspaper account of a man who had been shot, Mboowa testified that the family “started piecing things together.” The family later learned that Mboowa's cousin and his colleague had been beheaded, and when Mboowa's aunts “went to identify the bodies,” they could only do so based on a distinctive “birthmark” on his cousin's body. This act of violence was “the last straw” for Mboowa, prompting him to leave Uganda until “the dust settles.”

Primarily on the basis of these four incidents Mboowa testified that he fears he would be detained or killed if forced to return to Uganda. The IJ determined that “the acts of harm described are plausible in light of country conditions, and would rise to the level of past persecution if established.” But the IJ deemed Mboowa not credible and was thus “unable to make a finding that these events actually occurred as described.” After cataloging “numerous internal inconsistencies and inconsistencies between his asylum application, affidavits and testimony and supporting documentation,” the IJ discredited Mboowa's testimony in its entirety. “[M]ost troubling” to the IJ was that “significant portions of [Mboowa's] testimony, especially his broken pelvis, three week hospital stay, and the beheading of his cousin” were omitted “from his original [2003] application, written only about a year after the events.” Without such evidence, the IJ concluded Mboowa had “not demonstrated past persecution on account of a statutorily protected ground.” The adverse credibility finding likewise doomed Mboowa's requests for asylum based on the fear of future persecution, withholding of removal, and protection under CAT.

The BIA affirmed, finding that the discrepancies “identified are present and provide specific cogent reasons” for the IJ's adverse credibility determination. The BIA primarily recounted the inconsistencies surrounding Mboowa's description of the 2001 beating, and faulted Mboowa for failing to mention in his supplemental statement² (filed as part of his 2003 initial asylum application) that he “was beaten with the guns of the soldiers but not whipped, that he sustained broken ribs and a broken hip, or that he was hospitalized for 3 weeks.” The BIA concluded that Mboowa failed to adequately explain these discrepancies as well as “the other discrepancies that the Immigration Judge identified.” The BIA also remarked that several “material inconsistencies that we do not mention here ... provide further support [for] the [IJ's] adverse credibility determination,” and that Mboowa failed to rehabilitate his credibility with corroborating evidence. This petition timely followed.

II.

Mboowa challenges the adverse credibility determination and resulting denial of his asylum, withholding of removal, and CAT claims. “To qualify for asylum, an applicant must establish that [he] has a ‘well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Jin Lin v. Holder, 561 F.3d 68, 71 (1st Cir.2009) (quoting 8 U.S.C. § 1101(a)(42)(A) ). The testimony of the applicant, alone, can suffice to meet this burden.³ Id. But where the agency determines that the testimony is not credible, that testimony “may be discounted or completely disregarded.” Id. Where, as...