Mohammed v. U.S. Atty. Gen.

• Decision Date: 05 November 2008
• Docket Number: No. 07-11605.,07-11605.
• Citation: 547 F.3d 1340
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Hamed MOHAMMED, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

547 F.3d 1340

Hamed MOHAMMED, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 07-11605.

United States Court of Appeals, Eleventh Circuit.

November 5, 2008.

Leslie A. Diaz, H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, Anne J. Randall, Charlotte, NC, for Petitioner.

James A. Hurley, David V. Bernal, Anthony P. Nicastro, Mark C. Walters, Margaret J. Perry, U.S. Dept. of Justice, Civ Div., OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before WILSON, PRYOR and COX, Circuit Judges.

PRYOR, Circuit Judge:

The key question presented by this petition is whether an applicant for asylum whose testimony about past persecution is incredible and who, by his own admission, lived peaceably for three years after his military service before his arrival in the United States conclusively proved a well-founded fear of future persecution by presenting evidence that some other persons have been forcibly conscripted and tortured in his native country. Hamed Mohammed, a native and citizen of Eritrea, petitions for review of the denial of his application for asylum and withholding of removal by the Board of Immigration Appeals. The Immigration Judge found that Mohammed's testimony about past persecution in the Eritrean military was incredible because it contained inconsistencies and implausibilities and was not corroborated by reliable evidence. The Immigration Judge also found that Mohammed did not have a well-founded fear of persecution because it is undisputed that Mohammed was not persecuted during the three years that he lived and worked in Eritrea after he finished his military service. The Board affirmed. Because substantial evidence supports the findings of the Immigration Judge and the Board, we deny Mohammed's petition.

I. BACKGROUND

In April 2005, Mohammed arrived in the United States as a stowaway aboard a cargo ship. An asylum officer conducted a credible-fear interview, and Mohammed alleged past persecution and fear of future persecution by the Eritrean military. The asylum officer referred Mohammed to an Immigration Judge to determine his eligibility for asylum. In July 2005, Mohammed filed his application for asylum, 8 U.S.C. § 1158(a)(1), withholding of removal, id. § 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. § 208.16(c)(2).

Mohammed alleged that he was conscripted into the Eritrean military in 1999, when he was in the seventh grade. He alleged that he was tortured on three occasions because he was suspected of planning to desert. He alleged that soldiers tied his hands behind his back, hung him from a tree by his hands, and beat him in front of other men. On another occasion, soldiers allegedly tied his feet and arms together and placed him in "the 8" position, chest-down on the ground, for an hour a day during the hottest part of the day for four or five days. On a third occasion, soldiers allegedly beat him with a stick on his leg. Mohammed also alleged that the military suppressed his religion by refusing to allow him "to do his prayers." Mohammed stated that he escaped from the military "at the end of 2001" and hid in Massawa. Mohammed stated that he had "no doubt at all" that if he went back to Eritrea, he would lose his life. Mohammed included with his application news articles and publications regarding Eritrea and human rights abuses there.

In October 2005, Mohammed filed a memorandum in support of his application. Mohammed's filing included the country profile for Eritrea published by the State Department, more news articles, and reports from private organizations regarding human rights abuses in Eritrea. The memorandum also contained new allegations of abuse. Mohammed described an incident in which the military tied his body in "the 8" position and beat him for an hour a day for two weeks after he disobeyed an order to arrest the elderly mother of a military deserter. Mohammed also alleged that while he was in the United States, he learned that the military had visited his parents' house to search for him. He alleged that the military detained and beat his father.

In April and May 2006, Mohammed filed three submissions of additional evidence to support his application. The first submission included letters to Mohammed from his brother and father, a photograph of Mohammed, and copies of personal identification cards issued to him by his school, the Massawa Port, a national students' organization, and the Eritrean government. The letter allegedly written by his brother described the detention of Mohammed's father and referred to Mohammed as the writer's son. The identification cards bore his true name and photograph but stated different dates of birth. The second submission included background information on Eritrea from the State Department and an affidavit and book chapter from Professor Dan Connell. The third submission included a medical report dated May 3, 2006, by Dr. Sudha Reddy of Atlanta, Georgia, that described scars on Mohammed's back and injuries to his rotator cuffs. In the patient history section, the medical report included Mohammed's assertion about the cause of his injuries.

On August 16, 2006, Mohammed and his counsel appeared for a hearing before the Immigration Judge. Mohammed testified that he was taken from his school in 1999 when he was in the seventh grade and forced to serve in the Eritrean military. He testified that his responsibilities included harvesting crops and standing watch for enemies. He testified that soldiers beat him while his body was tied in "the 8" position for an hour a day for two weeks after he disobeyed an order to arrest the elderly mother of a military deserter. He testified that he was physically abused by members of the military on three occasions because he was suspected of planning to desert and because he worked slowly.

Mohammed testified that "toward the end of 2001" he escaped from the military. After his supervisor had left the base and while other officers slept, Mohammed placed his weapon under his mattress, walked off the base, and traveled by bus to the home of his family in Massawa. He stated that he spent "two to three months" with his family before he obtained a government-issued identification card to find a job. Mohammed stated that the military did not look for him at the home of his family during this time.

Mohammed testified that he secured a job as a crane operator at the port in Massawa, which was owned by the government. Mohammed testified that he moved into a house that he shared with other crane operators, reenrolled in the school from which he had been conscripted by the military, occasionally went into town, and visited his relatives at least once every two weeks. Mohammed testified that, during this period, the military conducted at the port monthly "roundups" of those who deserted or evaded military service and he was able to hide from the authorities in the crane or in ships or containers at the port. Mohammed testified that he worked at the port for approximately three years before leaving for the United States. Mohammed also testified that, after he left Eritrea, his father was beaten by the Eritrean military and his brothers were conscripted.

Mohammed offered explanations for the discrepancies in his prehearing submissions. He testified that the four identification cards stated different birth dates because he gave false birth dates to the authorities to prevent the military from locating him. He testified that the letter allegedly written by his brother, which described the detention of their father and referred to Mohammed as the writer's son, explained what happened to their father from their father's perspective. Mohammed also submitted information about human rights abuses in Eritrea in reports published by the government of the United Kingdom, and an additional report about abuses in Eritrea published by the State Department.

On cross-examination, Mohammed testified that he waited approximately one month after arriving at his parents' home before he obtained his identification card and began to look for a job. In response to questions about this delay, Mohammed testified that he waited to apply for the card to spend time with his family and to determine whether the military would attempt to follow him. He stated that when he "found out that they were not going to [he] decided to go get the ID card." In response to questions about his alleged inability to practice his Muslim faith in the military, Mohammed testified that he was never punished on the basis of his religion because he "was not really at the age where [he] worshipped." Finally, when asked to give the "urgent reason" he left Eritrea, Mohammed testified that "it's a country where human rights is not respected" and that he "had to flee to save [his] life."

The Immigration Judge found that Mohammed's testimony was not credible because there were inconsistencies between Mohammed's oral and written statements, his testimony was implausible, and the documentary evidence did not corroborate his testimony. The Immigration Judge explained that Mohammed failed to mention in either his credible-fear interview or his asylum application the incident when he allegedly was placed in "the 8" position and beaten after refusing to detain the elderly woman. The Immigration Judge found that the notes from the credible-fear interview did not mention any incident in which Mohammed alleged that he was punished for failing to obey an order with which he disagreed. The Immigration Judge also found inconsistencies regarding Mohammed's ability to practice his religion in the military. In his asylum application, Mohammed stated that he was "not allowed to do [his] prayers," but at his hearing, Mohammed testified that he did not practice his religion while he was in the military. Mohammed testified that he was not at the age where he was worshiping and that he...