Onsongo v. Gonzales, 05-3926.

• Decision Date: 10 August 2006
• Docket Number: No. 05-3926.,05-3926.
• Citation: 457 F.3d 849
• Parties: Maricella Bosibore ONSONGO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

457 F.3d 849

Maricella Bosibore ONSONGO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.

No. 05-3926.

United States Court of Appeals, Eighth Circuit.

Submitted: June 16, 2006.

Filed: August 10, 2006.

Barton C. Winter, Minneapolis, MN, for petition.

Lonnie F. Bryan, Asst. U.S. Attorney, Minneapolis, MN, for respondent.

Before SMITH, HEANEY and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Maricella Bosibore Onsongo, a citizen of Kenya, petitions for review of a Board of Immigration Appeals ("BIA") decision affirming the immigration judge's ("IJ") denial of Onsongo's application for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). Onsongo submitted the application after the Immigration and Naturalization Service ("INS")¹ charged her with being removable for overstaying a 2001 visitor's visa. For the reasons discussed below, we deny Onsongo's petition.

I. BACKGROUND

Onsongo was the sole witness to testify before the IJ. According to her testimony at the May 2003 hearing, Onsongo has five children and formerly was married to John Nyangeri, a Kenyan man and the father of her children. Her children and Nyangeri still live in Kenya, and she has kept in regular contact with Nyangeri while in the United States. In 1998, Onsongo joined the Democratic Party ("DP"), an opposition party in Kenya dedicated to protecting human rights, and served as treasurer of the local Mau-Narok branch. Kenyan government officials routinely harassed her and other members of the DP. In 1998 police arrested Onsongo and her brother at their farm, beat them, and left them in jail for two weeks under horrible conditions. In 2001, police arrested Onsongo at the store she owned and operated, beat and raped her, and left her in jail for seven days before releasing her. Onsongo's store was burned down as well, an act she believed was committed by government officials. Two days after her release from prison in 2001, Onsongo registered her marriage to Nyangeri, with whom she had been in a long-term relationship since 1983. Five days later she applied for a United States visitor's visa. Onsongo told consular officers that she was coming to the United States for a visit, but she did not tell them she was fleeing Kenya.

On cross-examination, Onsongo testified that the group to which she belonged was Democratic Party Human Rights, a human rights organization separate from the DP. According to Onsongo, she was involved in creating this organization in order to "put it with the democratic party so that we can have more money possibly." The group engaged in various activities to oppose abuses by the Kenyan government, including looking after people who were harassed by the government, fighting for people's lives, collecting money for eventual action against the government, and holding strategy meetings. The group also had political candidates run under its name, although it was not a political party.

Upon questioning from the IJ, Onsongo said the name of the organization was actually Human Rights Africa ("HRA"). However, throughout Onsongo's testimony and in her corroborating evidence, the group is referred to by many different names.² Onsongo claimed to be one of the original HRA members since its inception in 1994. She feared persecution upon her return to Kenya on account of her past involvement in HRA's opposition activities, despite the fact that the DP has been part of the Kenyan government's ruling coalition since 2002 and the leader of the DP, Mr. Mwai Kibaki, is now the president of Kenya.

Onsongo's corroborating evidence at the first hearing included two letters. The first was an April 24, 2003 letter from an unnamed "Chief of Mau-Narok Location," ("chief") stating that since 1998 Onsongo had been a member of the "group fighting for the Human rights." The second was a letter from Onsongo's Kenyan lawyers stating that she used to belong to "Human Rights Group." Onsongo also submitted a document from the Senior Resident Magistrate's Court at Nakuru detailing a criminal proceeding stemming from her 2001 arrest. According to the court document, Onsongo had been arrested in August 2001, along with many other people, while participating in an illegal meeting she had organized as an official of "the said Human Rights Group." The court document also indicated that the chief had testified against her in the proceeding.³

At the end of the hearing, the IJ expressed concern about "significant gaps" in Onsongo's testimony and about the authenticity of some of the supporting documentation. Consequently, the IJ requested that the INS determine the authenticity of the court document. The IJ continued the hearing to allow Onsongo to produce objective corroboration of the existence of HRA, of her membership and leadership roles in the DP and HRA, and of the abuse she suffered related to her DP membership.

At the October 2003 continued hearing, Onsongo's new corroborating evidence included a different April 24, 2003 letter from the chief and a letter from the chairman of HRA confirming Onsongo's membership and position as treasurer in "Human Right [sic] Kenya Chapter." The evidence also included a DP membership card, with Onsongo's name misspelled, and an original members list for "African Human Rights Kenya Chapter" that included Onsongo's name. The IJ expressed continuing concern about the authenticity of the documents. He also noted that many of Onsongo's documents from different people and organizations apparently had been sent from the same post office box in Kenya. In explanation, Onsongo stated that the chief, the DP, HRA, and her husband all shared P.O. Box 121. As for the two April 24, 2003 letters from the chief, Onsongo said she could not offer an explanation to address the IJ's concerns, which included suspicion that the letters were signed by two different people. Onsongo attempted no explanation to address the IJ's concerns about her other corroborating evidence. Finally, she said that she had simply neglected to contact the DP for evidence that the IJ had requested to corroborate the existence of HRA and her involvement in HRA and the DP. The INS did not provide forensic evidence on the authenticity of the court document, and the issue was not addressed at the second hearing.

In his written opinion, the IJ concluded that "this is an incredible claim, deserving of no credence." He noted Onsongo's shift in testimony from her role in the DP to her role in HRA and her failure to produce objective corroboration of her prominent role in either group or of the identity and activities of HRA. The IJ also found that much of Onsongo's corroborating evidence "ha[d] all the hallmarks of fraud." Specifically, he noted that the court document contained numerous misspellings and strike-overs, and bore "more than a passing typographical resemblance" to the letter from Onsongo's lawyers. He also found it suspicious that the chief, who testified against her in the criminal proceeding, would then write to support her application for asylum. The IJ was equally concerned about the authenticity of the letters from the chief because they gave no name for the chief, vaguely referred to a human rights group, were dated the same day, had slightly different signatures, and one was notarized by the "Commissioner of Oats" while the other was not. He was also suspicious about the letter purportedly from the chairman of HRA because the letterhead had a different name for the human rights group than did the body of the letter. Finally, the IJ noted that the return envelopes from the chief, HRA, the DP and Onsongo's husband all bore the address P.O. Box 121, the same P.O. Box as Onsongo's last residence and business mailing addresses. As a result, the IJ concluded that Onsongo's claim was not credible.

In addition to the adverse credibility finding, the IJ concluded that even if Onsongo had established past persecution based on a protected ground, the DP's ascendance to a position in Kenya's ruling coalition and Mr. Kibaki's position as president of Kenya suggested that she would no longer have a well-founded fear of future persecution in Kenya. This was particularly so because Onsongo had reported to Kibaki when he was DP president and she was local DP treasurer. Accordingly, the IJ denied asylum, withholding of removal and CAT relief. The BIA found no clear error in the IJ's adverse credibility finding and did not discuss the alternative finding.⁴

II. DISCUSSION

The Attorney General has discretion to grant asylum to a refugee, defined as an alien who is unable or unwilling to return to her home country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir.2005); see 8 U.S.C. § 1101(a)(42), 1158(b)(1); 8 C.F.R. § 208.13. As the wording of the statute indicates, the alien must show not only persecution or a fear of persecution, but also that such persecution is "on account of one of the five protected grounds." Hassan v. Ashcroft, 388 F.3d 661, 666 (8th Cir.2004); see also Gomez v. Gonzales, 425 F.3d 543, 545 (8th Cir.2005) ("To reverse the finding that the alleged persecution was not based on a protected ground, it is necessary that the record compel the finding that a protected ground motivated the [persecution].").

We defer to the IJ's findings of fact and disposition of the case unless the record evidence is "`so compelling that no reasonable factfinder could fail to find' [the petitioner] eligible for asylum, withholding of deportation, or relief under the Convention Against Torture." Habtemicael v. Ashcroft, 370 F.3d 774, 779 (8th Cir.2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also 8 U.S.C. § 1252(b)(4)(B). We must affirm the IJ's...