Moab v. Gonzales

• Decision Date: 13 September 2007
• Docket Number: No. 06-2710.,06-2710.
• Citation: 500 F.3d 656
• Parties: Dominic MOAB, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

500 F.3d 656

Dominic MOAB, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-2710.

United States Court of Appeals, Seventh Circuit.

Argued February 16, 2007.

Decided September 13, 2007.

Richard F. Johnson (argued), Hughes Socol Piers Resnick & Dym, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Jesse M. Bless, (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

In August 2005, Dominic Moab, a twenty-seven year-old Liberian man, applied for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). An immigration judge ("IJ") held an individual hearing on October 27, 2005. In his decision, rendered on January 18, 2006, the IJ denied all relief. Mr. Moab timely appealed to the Board of Immigration Appeals ("BIA" or "Board"). On June 1, 2006, the Board dismissed his appeal. For the reasons set forth in this opinion, we grant the petition for review, reverse the decision of the Board and remand the case for further proceedings.

I BACKGROUND

A.

Mr. Moab is a native and citizen of Liberia. On June 21, 2005, he arrived at O'Hare International Airport in Chicago, Illinois and sought admission to the United States. At the time of his arrival, he did not possess valid documents, but requested the opportunity to present an application for political asylum on Form I-589; such a request is also considered a concurrent application for withholding of removal under the Immigration and Nationality Act. While at the airport, and later in a credible fear interview, Mr. Moab stated that he had left Liberia because of the civil war in that country and because he feared that, had he remained, he would have been killed as the result of a familial land dispute. On his subsequent application for asylum, Mr. Moab added that he feared returning because he was homosexual and had suffered beatings in Liberia because of his sexual orientation.

In discussing his fear of returning to Liberia, Mr. Moab described a land dispute with a man named Ubuoma, a member of Mr. Moab's extended family. Mr. Moab's immediate family and Ubuoma both claimed ownership of a particular tract of land outside the village. Mr. Moab found his father shot and killed on that land. Subsequently, Ubuoma threatened to kill Mr. Moab if he ever returned and challenged Ubuoma's ownership of the farm.

Mr. Moab also described three specific beatings that he allegedly had suffered because of his homosexuality. The first occurred while he was playing football in his native Liberia. Between ten and twelve young men beat him and called him a "devil," a term, according to Mr. Moab, employed in Liberia to describe homosexuals. The second incident was similar and occurred while Mr. Moab was selling melons at the market. He became embroiled in an argument and was beaten by eight other men. The third incident occurred while he was sitting under a mango tree with his boyfriend, a man named Gabriel. Some men from his local village saw Mr. Moab sitting with Gabriel under the tree. One of the men proceeded to say: "Let's go do something with Dominic so he cannot have something like sex with the boy." A.R. 47. Soon after, a group of boys from the village, twelve in number, proceeded to beat Mr. Moab with sticks.

Mr. Moab claims that, because of these occurrences, he left Liberia for Sierra Leone, then went to Libya and finally to Italy. Then, using a false passport and traveling through Spain, he attempted to enter the United States. He did not seek asylum in the other countries that he visited between his departure from Liberia and his arrival in the United States.

At his hearing before the IJ, Mr. Moab was asked why he had failed to mention his homosexuality to the immigration officers at the airport or to the examining official during his credible fear interview. Mr. Moab responded, "[n]o, because of this homosexual, everywhere I go, people discover that I'm homosexual. It's different, so sometimes I want to keep it, but I can't keep it." A.R. 217. When asked if he was lying, he stated, "[b]ecause I tell the truth about my problem. That's why I am running, but my—the homosexual, I didn't tell her about that because . . . everywhere . . . that's why I want to see my lawyer before. . . ." A.R. 219.

B.

In denying relief, the IJ determined that Mr. Moab had not presented a credible claim in support of his application and, consequently, had failed to meet his burden of proof. The IJ articulated five bases for this adverse credibility finding: (1) an inconsistency between Mr. Moab's initial interviews, in which he based his application on a fear of returning to Liberia because of the civil war and a fear that his neighbor would kill him over a land dispute, and his later contention that his application was based on a fear of persecution; (2) a discrepancy between his asylum application that simply contained a general description of persecution based on homosexuality and his detailed hearing testimony in which he gave an account of three specific beatings based on his sexual orientation; (3) an inconsistency based on his failure to seek, over eight years, asylum in Sierra Leone, Libya, Italy or Spain; (4) a contradiction between Mr. Moab's statement that he did not disclose his homosexuality because he did not speak English and his later testimony, in English, at the hearing; and (5) a similar inconsistency between his early claim that he did not disclose his sexual orientation because he did not speak English and his later asylum application in which he indicated that he was fluent in English.

After remarking on Mr. Moab's lack of credibility, the IJ went on to state that, in any event, the beatings that Mr. Moab allegedly had experienced in his hometown because he was homosexual did not rise to the level of past persecution. The IJ also determined that Mr. Moab had failed to demonstrate a well-founded fear of future persecution. Therefore, the IJ determined that Mr. Moab had failed to meet his burden of proof even if his testimony were credible.

Mr. Moab then appealed the IJ's decision to the BIA. The Board dismissed the appeal in a brief opinion. The BIA discussed the IJ's findings in a single paragraph:

Based on the provisions of the REAL ID Act, the Immigration Judge properly considered the questionable additions the respondent made to his asylum application and his inconsistent account of why he was applying for asylum before the asylum officer. We agree with the Immigration Judge that it appears that as the respondent's claim progressed, his alleged account of harm became markedly more egregious. Consequently, we cannot find that the Immigration Judge's adverse credibility finding is clearly erroneous. Inasmuch as the respondent has failed to present a credible claim, we will find that he failed to meet his burden of proof for asylum.

A.R. 2 (emphasis supplied).

The BIA then went on to state that because Mr. Moab had failed to meet his burden with respect to his application for asylum, he likewise had failed to meet the higher standard required to establish eligibility for withholding of removal. The BIA also stated that Mr. Moab did not establish credibly that, more likely than not, he would be tortured and thus was not eligible for protection under the CAT. Finally, the BIA determined that the IJ's use of a video conference to conduct the proceedings did not deny Mr. Moab a fair hearing. The Immigration and Nationality Act and the applicable regulations specifically authorize conducting these hearings through a video conference; therefore, the Board concluded, the use of video equipment was not improper.

II DISCUSSION

We begin our analysis by addressing a threshold matter that frames the task ahead of us. We must determine whether, in the context of this case, the decision of the BIA is free-standing, or must be considered as simply supplemental to that of the IJ.¹ When the BIA issues its own opinion rather than adopting or merely supplementing the opinion of the IJ, this court's task is to review only the opinion of the BIA. Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir.2004). Typically, when the BIA issues a decision, that decision becomes the basis for review. Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005). We also have stated that "absent the BIA adopting the findings of the IJ . . . we review the determinations, including the credibility determinations, of the BIA, not the IJ." Begzatowski v. INS, 278 F.3d 665, 669 n. 5 (7th Cir.2002). On the other hand, where the BIA's decision merely supplements the opinion of the IJ, "the IJ's opinion, as supplemented by the BIA's opinion, becomes the basis for review." Liu, 380 F.3d at 311.

We think it is clear in this case that the opinion of the Board is free-standing and, therefore, must be the exclusive focus of our review. The Board clearly engaged in an independent analysis of the case. The BIA did not adopt, expressly or by implication, the IJ's findings. It simply stated that it agreed with the IJ's determination that, as his case progressed, Mr. Moab's claim of harm became more egregious. Nor did the Board supplement the IJ's opinion. Rather, it approved of what it believed the IJ's reasoning to have been and, on that basis, dismissed the petition.

We are reminded that we may uphold the BIA's determination to deny Mr. Moab's petition for asylum, withholding of removal and CAT relief, "if at all, on the same basis articulated in the order by the agency itself. . . ." Slusher v. NLRB, 432 F.3d 715, 729 (7th Cir.2005) (citing SEC v. Chenery, 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ("Chenery I")). The Supreme Court of the United States has admonished, in Chenery I, that we may not sanction an agency decision based upon the post-hoc rationalizations of...