Mosa v. Rogers

• Decision Date: 12 July 1996
• Docket Number: No. 95-56342,95-56342
• Parties: 96 Cal. Daily Op. Serv. 5186, 96 Daily Journal D.A.R. 8385 Safi MOSA, Petitioner-Appellant, v. Richard K. ROGERS, District Director, Immigration and Naturalization Service, Los Angeles; Immigration and Naturalization Service, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 601

89 F.3d 601

96 Cal. Daily Op. Serv. 5186, 96 Daily Journal

D.A.R. 8385

Safi MOSA, Petitioner-Appellant, v. Richard K. ROGERS, District Director, Immigration and Naturalization Service, Los Angeles; Immigration and Naturalization Service, Respondents-Appellees.

No. 95-56342.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1996.

Decided July 12, 1996.

Donald Ungar, Simmons, Ungar, Helbush, Steinberg & Bright, San Francisco, California, for petitioner-appellant.

John B. Bartos, Assistant United States Attorney, Los Angeles, California, for respondents-appellees.

Appeal from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding, No. CV-95-01531-HLH.

Before: FLETCHER, BEEZER and KLEINFELD, Circuit Judges.

BEEZER, Circuit Judge:

Safi Mosa, a native and citizen of Afghanistan, appeals the district court's denial of his petition for a writ of habeas corpus challenging the Board of Immigration Appeals' ("BIA") dismissal of his appeal from an Immigration Judge's ("IJ") decision finding him excludable as charged and denying his applications for asylum and withholding of deportation. Mosa contends that the BIA's decision should be reversed because it was based on an adverse credibility finding that was unsupported by substantial evidence. We have jurisdiction under 28 U.S.C. § 2253. We reverse and remand.

I

Safi Mosa fled Afghanistan to Pakistan in January, 1990 because of a claimed fear of the Afghan security force (the "KHAD"). After spending several months in Pakistan, he attempted to enter the United States at Los Angeles on November 6, 1990. Mosa was detained and placed in exclusion proceedings pursuant to 8 U.S.C. § 1226. Mosa applied for asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(a) and 1253(h).

At the exclusion hearing, Mosa testified that he feared persecution if returned to Afghanistan due to events which began in 1989. Mosa stated that in 1989, while he was a student at a metal-working technical school in Kabul, he began supplying the mujahidin rebels with supplies and repairing weapons for them at the school. Later that year, Mosa testified, he was arrested by the KHAD, accused of aiding the mujahidin, and detained for three months. According to Mosa, he never admitted assisting the mujahidin during his detention despite being frequently interrogated and tortured. Mosa believes his arrest was prompted by spies at the technical school.

Mosa further testified that after his detention he was taken to a government military base and was conscripted into the Afghan army. He said that he was given approximately one week of training and was then forced to parachute into an area near Pakistan. Once he landed, he testified, he deserted the army and escaped to Pakistan with the help of the mujahidin.

The IJ found Mosa to be excludable and denied Mosa's applications for asylum and withholding of deportation. The IJ's decision was partially based on his disbelief of Mosa's testimony because "some of it [was] exaggeration and some of it [was] misperception on his part." The IJ did not base this finding on Mosa's demeanor, but instead based it solely on his evaluation of Mosa's testimony.

Mosa appealed to the BIA, and the BIA affirmed the decision of the IJ based solely on the IJ's "adverse credibility determination." ¹ After conducting an independent review of the record, the BIA adopted the analysis of the IJ and determined that the IJ's adverse credibility finding was correct. Mosa petitioned the district court for a writ of habeas corpus. An alien's sole means for obtaining judicial review of a final order of exclusion is a petition for a writ of habeas corpus. 8 U.S.C. § 1105a(b); Castillo-Magallon v. INS, 729 F.2d 1227, 1228 (9th Cir.1984). The district court denied his petition.

II

We review de novo a district court's decision to grant or deny a petition for habeas corpus. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988). We review the factual findings underlying the BIA's denial of asylum and withholding of deportation under the substantial evidence standard. Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987). "Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.

The Attorney General has discretion to grant an alien asylum if he qualifies as a "refugee" under 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(a). A refugee is a person who is unwilling to return to his native country because he has suffered past persecution or has a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). The Attorney General must withhold deportation if the alien demonstrates a "clear probability of persecution." INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1984). This standard requires the applicant "to establish by objective evidence that it is more likely than not that he or she will be subject to persecution upon deportation." INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987). An applicant for asylum and withholding of deportation may prove his persecution claim with his own testimony if it is credible. Aguilera-Cota v. INS, 914 F.2d 1375, 1379 (9th Cir.1990).

III

The BIA determined that Mosa failed to establish his persecution claim because "the applicant's asylum and withholding requests were not supported by credible testimony." We review credibility findings for substantial evidence. Turcios, 821 F.2d at 1399. Adverse credibility findings are afforded substantial deference so long as the findings are supported by "specific, cogent reason[s]." Id. (citations omitted). When specific reasons are given for questioning an alien's credibility, we "evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible." Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988). The "reasons must be substantial and must bear a legitimate nexus to the finding." Aguilera-Cota, 914 F.2d at 1381.

In reaching its adverse credibility decision, the BIA relied on the following three findings of the IJ: (1) Mosa's testimony that there were spies at his technical school was "clearly not true" because if such spies had actually observed his assisting the mujahidin, he would have been executed, not detained; (2) Mosa's testimony that he had received only one week of training before being required to parachute into mujahidin territory was unbelievable because governments do not give soldiers such limited training unless they "are so desperate that they really don't care what kind of people they use[, and] I just don't believe [the Afghan authorities were] that desperate"; and (3) there was a discrepancy between Mosa's oral testimony and his written request for asylum. The BIA stated that "[i]n particular, we find the applicant's claim that he was arrested as a suspected rebel, given [one] week of training as a paratrooper, and then provided with arms and ordered to parachute into mujahidin territory to be inherently unbelievable."

A

The first two grounds for finding Mosa's testimony incredible are not supported by any evidence, and the reasons given by the IJ and the BIA for their disbelief of Mosa's testimony are not cogent.

The IJ had no basis for his conclusion that Mosa would have been executed instead of being detained if there were spies at Mosa's school. It is just as believable that Mosa would not have been executed given his testimony that although he was arrested for suspicion of aiding the mujahidin, he never admitted doing so despite being tortured and interrogated. Furthermore, there is no evidence in the record that KHAD agents summarily executed, without interrogation, all suspected mujahidin sympathizers. Finally, Mosa did not testify that he had personal knowledge that spies at the school had reported him, only that he supposed that to be so. The IJ's...