Rapheal v. Mukasey

• Decision Date: 02 July 2008
• Docket Number: No. 07-1391.,07-1391.
• Parties: Colcer RAPHEAL, a/k/a Ashley Amber Manning, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

533 F.3d 521

Colcer RAPHEAL, a/k/a Ashley Amber Manning, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-1391.

United States Court of Appeals, Seventh Circuit.

Argued November 2, 2007.

Decided July 2, 2008.

Erin L. Ziaja (argued), Dewey & Leboeuf, Chicago, IL, for Petitioner.

Richard Zanfardino, Erica B. Miles (argued), Department of Justice, Washington, DC, for Respondent.

Before MANION, ROVNER, and EVANS, Circuit Judges.

MANION, Circuit Judge.

Colcer Rapheal sought asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). An Immigration Judge ("IJ") denied Rapheal's petitions, finding that she was not credible and that without any evidence to corroborate her claims of persecution and torture, she failed to establish a right to relief. Rapheal appealed to the Board of Immigration Appeals ("Board"), and the Board affirmed based solely on the lack of corroborative evidence. Because Rapheal's hearing before the IJ did not conform to statutory requirements, we grant the petition for review and remand for a new hearing.

I.

Colcer Rapheal is a native and citizen of Liberia. On January 6, 2006, Rapheal flew from Germany to the United States and illegally entered the United States in Chicago, using a false United States passport issued to "Ashley Amber Manning." Rapheal initially claimed that she was Manning and presented both a passport and a driver's license in Manning's name. Only after immigration officers spoke with the real Manning by phone did Rapheal admit that the passport was false. Rapheal, who had been living in Nigeria and was also a citizen of Nigeria based on her marriage to a Nigerian, then told immigration officials that she was afraid to return to Nigeria.

After the airport interview, on January 25, 2006, the Department of Homeland Security ("DHS") issued Rapheal a Notice to Appear ("NTA"), charging her with removability as an alien who sought to procure admission to the United States by fraud or willful misrepresentation of a material fact, and falsely representing herself to be a United States citizen. Rapheal admitted to removability, and the IJ found Rapheal removable as charged and designated Germany, or alternatively Liberia, as the country of removal.

Rapheal then applied for asylum, withholding of removal, and CAT relief. On March 1, 2006, the IJ held a hearing via video conference, at which Rapheal presented evidence and testified in support of her petitions. Rapheal stated that her father, Michael Rapheal, was a well-known doctor for former Liberian President Charles Taylor and was "very active" in his regime in Liberia. This conflicted with a handwritten notation added to a typed immigration form stating that Rapheal's maiden name was Colcer Kocoker. The signature "Rapheal" appears next to the added handwritten notation, as it does at the end of the form. Rapheal also claimed that her family was well known in Liberia as supportive of Taylor because her father and mother often appeared in newspaper photographs along with Taylor. Rapheal further testified that rebels blamed her father for acting as a voodoo doctor for Taylor, using his skills to help Taylor "use voodoo to trick and charm" Liberians, and that she was forced to flee Liberia after the rebels murdered her family and seriously injured her.

After fleeing Liberia, Rapheal went to a refugee camp in Nigeria. Rapheal testified that while at the refugee camp she was raped multiple times by camp guards and when she resisted, the guards hit and burned her with a metal rod. Rapheal also testified that a guard at the camp cut her thumb off so that she could have a "taste of the pain" that Taylor caused the Nigerian people. She later married a Nigerian, John Clifford Bernard, whom she had met at the camp, and together they had two children. Bernard was murdered and then her children were killed in a fire. Rapheal claims the fire was purposely set by Nigerian government agents because of her husband's political activities.

The IJ found that Rapheal was not credible because she had earlier told immigration officers that her maiden name was Kocoker. Although Rapheal testified that she had never heard the name Kocoker before, the IJ found her testimony not credible given that she had signed the earlier statement listing her maiden name as Kocoker. The IJ determined that the inconsistencies relating to her name and identity went to the heart of her claim that she would be harmed in Liberia because the "vast majority" of her claim "rests on her assertion that the Rapheal name is well-known as a supporter of Charles Taylor." Further, the IJ noted that Rapheal had failed to submit any corroborative evidence relating to her identity, her parents' identity, her husband's identity, or evidence that the Rapheal family was well-known in Liberia. Additionally, the IJ found that she did not provide any explanation for her lack of corroborative evidence. The IJ then denied Rapheal asylum, withholding of removal, and CAT relief because under the REAL ID Act she did not meet "her burden of proof through credible, consistent testimony or a combination of testimony and corroboration." IJ Decision at 27. The IJ ordered Rapheal removed to Germany, with an alternate order of removal to Liberia.

Rapheal appealed to the Board. The Board dismissed Rapheal's appeal, concluding that the IJ properly found that Rapheal failed to meet her burden of proof for asylum, withholding of removal, and CAT relief because "she did not provide corroborative evidence and could have done so...." Board Decision at 2. The Board concluded that it need not reach the issue of Rapheal's credibility because Rapheal was not entitled to relief given her lack of corroborative evidence. Rapheal petitions this court for relief.

II

Rapheal petitioned for asylum, withholding of removal, and CAT relief. In order to qualify for asylum, Rapheal must show that she meets the statutory definition of "refugee." Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 671 (7th Cir.2005). A refugee is defined as an individual who is unwilling to return to her native country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). Even if a petitioner qualifies as a refugee, asylum is still a discretionary decision. Angoucheva v. INS, 106 F.3d 781, 788 (7th Cir.1997). Conversely, a petition for withholding of removal must be granted if "the alien's life or freedom would be threatened ... because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." Firmansjah v. Gonzales, 424 F.3d 598, 604-05 (7th Cir.2005). However, to establish entitlement to withholding of removal "the applicant must demonstrate a `clear probability' that he or she will face persecution in the country to which he or she will be removed." Id. at 605. The "clear probability" standard requires an applicant to show that it is "more likely than not" that she will be subject to persecution if returned to her native country, a more stringent test than the standard for establishing eligibility for asylum. Id. The standard for CAT relief differs: "Relief under the CAT does not have to be on account of membership in a social group or political opinion to qualify for relief." Pavlyk v. Gonzales, 469 F.3d 1082, 1090 (7th Cir.2006). However, to obtain relief under the CAT, Rapheal must establish that it is more likely than not that if removed she will be subject to torture. Boyanivskyy v. Gonzales, 450 F.3d 286, 292 n. 3 (7th Cir.2006).

On appeal, Rapheal does not distinguish between her claims for asylum, withholding of removal, or CAT relief ("petitions"). Rather, she asserts that the Board erred in denying all of her petitions based on her failure to provide corroborating evidence. In making this argument, Rapheal initially contends that our review is limited to the Board's rationale (and not the IJ's) because the Board issued its own free-standing opinion, as opposed to adopting or supplementing the opinion of the IJ. Rapheal is correct that "[w]hen the [Board] 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 [Board]." Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007). Conversely, "where the [Board's] decision merely supplements the opinion of the IJ, `the IJ's opinion, as supplemented by the [Board's] opinion, becomes the basis for review.'" Id. (quoting Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir.2004)). The government counters that the Board's decision was a single-member decision, issued pursuant to 8 C.F.R. § 1003.1(e)(5),¹ that affirmed in part and supplemented in part the IJ's decision, and thus we review the IJ's decision as supplemented by the Board. There is nothing in the text of the Board's decision to indicate whether it was issued pursuant to § 1003.1(e)(5) or was a three-member panel decision issued pursuant to § 1003.1(e)(6). In the final analysis, though, as explained below, our decision would be the same whether we were reviewing the Board's decision only or the IJ's decision as supplemented by the Board. However, in the future the Board should exercise greater care in identifying whether its decision is intended to be a stand-alone decision or rather a supplement to the IJ's decision.

That brings us back to Rapheal's claim that the Board erred in requiring her to provide corroborative evidence. More specifically, Rapheal claims that the Board could not require her to provide corroborative evidence without making an explicit credibility finding. In support of her argument, Rapheal cites Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir.2004). In that case, this court established a three-part inquiry for reviewing a Board's denial of asylum based on the...