Porosh v. Garland
| Decision Date | 05 January 2023 |
| Docket Number | 22-1781 |
| Citation | 56 F.4th 1120 |
| Parties | Al Amin POROSH, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Wessal (Marwa) Jumma, Attorney, Law Office of Brian A. Seyfried, Chicago, IL, for Petitioner.
Todd J. Cochran, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before Flaum, Easterbrook, and St. Eve, Circuit Judges.
Al Amin Porosh, a native and citizen of Bangladesh, sought asylum because of political persecution. After a hearing, the Immigration Judge (IJ) rendered an adverse credibility determination and denied Porosh asylum. The Board of Immigration Appeals (BIA) dismissed Porosh's appeal. Now, Porosh seeks review of those decisions, arguing that the IJ's adverse credibility finding was not based on substantial evidence. Although some of the IJ's conclusions lack evidentiary support, we deny Porosh's petition for review because, on the whole, the IJ's decision is supported by findings that have a credible basis in the record.
Porosh claims he joined a political party, Jamaat e-Islami (Jamaat), in 2012 when he was fifteen years old and living in Narayanganj, a city in Bangladesh.1 His role was to recruit new members by explaining that Jamaat works for democracy and the freedom of the country while helping the community. His asylum claim is premised on three alleged encounters with an opposing political party, the Awami League, in 2014.
The first occurred in July 2014, when three Awami League leaders called and threatened to kill Porosh if he did not defect. Porosh did not report this threat to the police because he believes the Awami League controls the government, including the police.
In October 2014, members of the Awami League attacked Porosh and broke his left hand. After the beating, Porosh went to a government hospital but was denied admission, a fact he attributes to the Awami League's influence. Instead, Porosh received treatment from a private doctor, Ahasanui Kabir. Porosh did not report this attack to the police for the same reasons as before.
The final incident occurred in December 2014. Awami League members called Porosh and invited him to celebrate Victory Day (a national holiday in Bangladesh) with them. When Porosh arrived, approximately fifteen members of the Awami League confronted him. They accused Porosh of obstructing their work and threatened to kill him if he did not defect. When he refused, they tied him up, taped his mouth shut, and transported him to another, unknown location. Porosh was locked in a room for two days before they untied his hands and gave him food and water. At that point, Porosh managed to flee.
After he escaped, Porosh went to the police to report these three incidents. Upon hearing that Porosh was attempting to file a complaint against the Awami League, the police threatened to kill him if he filed a report. A few weeks later, Porosh moved to another city in Bangladesh, hoping to evade detection. However, he claims Awami League leaders were still looking for him, and he did not feel safe.
In 2015, Porosh moved to Malaysia after obtaining a temporary work permit. But, in 2020, while he was still in Malaysia, Awami League members contacted his father, threatening that if they found Porosh, they would kill him.
Due to the COVID-19 pandemic, Malaysia announced that everyone with a temporary work permit would be sent back to their home country. In March 2021, Porosh decided to go to the United States instead and received what he believed to be a valid work permit.
On March 27, 2021, Porosh entered the United States through O'Hare Airport. When he presented his work permit for inspection, officers identified it as fake. After an interview, officers determined Porosh was "credible" and had a "credible fear of persecution" based on "political opinion."
Deportation proceedings against Porosh commenced on April 14, 2021, when the Department of Homeland Security filed a notice to appear in Chicago Immigration Court. Porosh appeared pro se , admitted the Department's factual allegations, and conceded removability.
On June 24, 2021, Porosh applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After a hearing, the IJ denied his applications, finding that Porosh was not credible and that his corroborating evidence did not support his claims.
Porosh appealed that decision to the BIA, which affirmed the IJ's conclusion as to the asylum claim. However, the BIA declined to affirm on two grounds the IJ considered in rendering an adverse credibility determination: (1) Porosh's use of a fraudulent work permit to enter the United States and (2) the IJ's impression that Porosh was evasive when answering certain questions. The BIA also concluded that Porosh failed to meaningfully challenge the IJ's denial of his application for withholding of removal and protection under CAT, so it considered those issues waived. Porosh timely appealed to this Court.
We address only Porosh's asylum claim.2 To receive asylum, applicants must prove they were "persecuted in the past or ha[ve] a well-founded fear of future persecution on account of [their] race, religion, nationality, membership in a social group, or political opinion." Liu v. Ashcroft , 380 F.3d 307, 312 (7th Cir. 2004) (citing 8 U.S.C. § 1101(a)(42)(A) ). "[P]ersecution is defined as ‘punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.’ " Id. (quoting Roman v. INS , 233 F.3d 1027, 1034 (7th Cir. 2000) ).
"Section 242(a) of the Immigration and Nationality Act (INA) vests the federal courts with jurisdiction to review final orders directing the removal of an alien from the United States." Meza v. Garland , 5 F.4th 732, 734 (7th Cir. 2021) (citing 8 U.S.C. § 1252(a) ). Where the Board has adopted and supplemented the IJ's reasoning, we review both decisions. Garcia-Arce v. Barr , 946 F.3d 371, 376 (7th Cir. 2019). Here, the BIA's order supplements the decision of the IJ, as opposed to affirming "on grounds that were in the alternative to the ones the IJ used." Liu , 380 F.3d at 311. Therefore, "the IJ's opinion as supplemented by the BIA's opinion becomes the basis for review." See id.3
"We review the decisions denying asylum ... for substantial evidence, applying de novo review to legal questions but reversing factual findings only if the record lacks substantial evidence to support them." Zhakypbaev v. Sessions , 880 F.3d 881, 883–84 (7th Cir. 2018) (). The same deference is given to evaluations of credibility. See Lin , 656 F.3d at 609 (). It is not enough that "an alternate finding could also be supported by substantial evidence," Capric v. Ashcroft , 355 F.3d 1075, 1086–87 (7th Cir. 2004) ; the alternative finding must be "compelled," 8 U.S.C. § 1252(b)(4)(B).
Nevertheless, deferential review is afforded only where an IJ's "credibility determination[ ] ... [is] supported by ‘specific, cogent reasons’ that ‘bear a legitimate nexus to the finding.’ " Capric , 355 F.3d at 1086 (citing Ahmad v. I.N.S. , 163 F.3d 457, 461 (7th Cir. 1999) ). Adverse credibility findings will not be upheld where they are "based on speculation or conjecture rather than on evidence in the record." Chen v. Gonzales , 420 F.3d 707, 710 (7th Cir. 2005) (citing Korniejew v. Ashcroft , 371 F.3d 377, 383 (7th Cir. 2004) ).
The IJ identified several inaccuracies and inconsistencies in Porosh's testimony that supported his adverse credibility finding. We evaluate each in turn.
During his asylum hearing, Porosh testified that he joined Jamaat because it "works for ... democracy within [Bangladesh]" and for "the freedom of the country." However, Porosh submitted into evidence an article titled: Jamaat-e-Islami in Bangladesh: Past, Present and Future. It describes Jamaat's emergence as a social organization, noting that, despite developing a political arm, Jamaat "remained s[k]eptical of core political principles such as secularism and democracy to such an extent that [it] considered these concepts to be ‘Haram ’ (Islamic for ‘forbidden ’)."
The IJ found Porosh's claim "that he was a prominent recruiter for Jamaat [to be] improbable" given that "he described such an incorrect view of the principles of the party." On appeal, the BIA concluded that while Porosh "generally reference[d] this inconsistency, ... he [did] not meaningfully challenge it."
The BIA's reading of Porosh's brief was generous. Porosh did not address the inconsistency before the BIA, nor does he do so here. Failure to challenge this finding results in waiver. Kithongo , 33 F.4th at 458 (). As a result, "[w]e need not reach the merits of this argument." Nyandwi , 15 F.4th at 841.
Even if Porosh had challenged the IJ's finding on appeal to the BIA, the article Porosh put into evidence undercuts his testimony. See Musollari v. Mukasey , 545 F.3d 505, 510–11 (7th Cir. 2008) (). The IJ reasonably relied on this evidence in support of his adverse credibility determination.
Another basis for the IJ's adverse credibility determination...
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